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“Vatican Criminal Reforms Ignore Glaring Problems Even as Jurisdiction Expands Worldwide”

Matthew P. Cavedon

On February 16, Pope Francis announced changes to the Vatican’s criminal code. These alter court procedures to protect a few defense rights and make punishment more merciful. They come alongside recent expansions in the Vatican’s criminal jurisdiction, which has gone almost overnight from handling gift shop thefts to being a centerpiece of Church efforts against sex crimes and corruption. This is no mere coincidence. The mercy measures are being enacted just as the Vatican is attacked for shoddy procedural protections. Unfortunately, though, the reforms fail to address the problems that have drawn unflattering international spotlights. They will fail to legitimize the Vatican’s newly important tribunal in the eyes of the world.

First, some background on Vatican criminal justice. As Emory University’s Rafael Domingo Osle explains, the Vatican is a sovereign nation with certain supervisory powers over the worldwide Catholic Church. The whole Church is governed by canon law. But additionally, the Vatican has its own criminal code. That code does not govern every crime committed by a Catholic. Rather, it applies to the Vatican’s own territory and personnel. Famous cases in which this code was used include the adjudications of staffers who leaked Vatican records in the 2010s. There have also been countless petty shoplifting cases, parking tickets, some employee financial crimes, a case involving the impersonation of a priest inside St. Peter’s Basilica, and even a murder-suicide by a member of the papal security force, the Swiss Guard. It is this code that is the subject of the most recent changes.

This legal system may have long had a limited scope. But Professor Domingo notes that it shares some features with more sweeping secular criminal justice codes. It has standards concerning the attribution of guilt to accomplices, the presumption of innocence, lenity, and proportional punishment. Partly in recognition of the Vatican’s limited ability to incarcerate offenders, its punishments have long prioritized rehabilitation and pastoral adjustment over strict punishment.

Pope Francis’s new regulations center on these gentler aspects. Noting “the changing sensibilities of the times,” the law now incorporates more modern norms favoring defendants’ dignity. Handcuffing will no longer be an ordinary part of trials. Sentences can be reduced by up to a third for good behavior in custody. Before sentencing, convicts can negotiate a rehabilitative and restorative sentence with the judge. Defendants who are unable to attend court for serious reasons, including those relating to mental health, will not be tried in absentia. These changes are meant to make Vatican proceedings more closely embody the mercy – including for offenders – that has become Pope Francis’s public hallmark. 

A system that prosecutes serious accusations without due regard for defense rights will fail to obtain the justice it seeks.

But such developments also have another aim. They try, unsuccessfully, to be a full-scale legitimization of the Vatican’s new role in global criminal justice. Just as the Vatican tweaks procedural guarantees, it is stretching its criminal law’s reach far beyond the nation’s fifth of a square mile and few hundred residents. Perhaps the highest-profile development is the Vatican’s new worldwide powers concerning (sexual and other) abuse of minors. In 2019, Pope Francis announced that Vatican officials – including its diplomats, who monitor the Church throughout the world – must immediately report credible abuse allegations to Vatican prosecutors. Failure to do so can trigger Vatican fines, incarceration, removal from office, and mandated rehabilitation. For priests, additional canon law penalties can also apply.

A separate 2013 measure could also have major repercussions. Only months after becoming Supreme Pontiff, Pope Francis issued other regulations authorizing the Vatican to prosecute “crimes committed against the security, the fundamental interests or the patrimony” of the Papacy, together with a wide raft of offenses committed against Vatican personnel stationed abroad. The proclamation announcing this change mentioned the need for international cooperation against organized crime, terrorism, and money laundering. Such a focus aligns with Pope Francis’s spiritual priorities concerning the mafia, much like how the new procedural reforms reflect mercy. But the actual authorization is so broad that the Vatican’s criminal powers could now cover a huge range of acts committed anywhere on Earth.

Along with that longer arm for Vatican criminal law has come increased criticism of procedures that are criminally lopsided in favor of prosecutors. A major write-up came in a January 2021 article by Associated Press Vatican correspondent Nicole Winfield. She found severe deficiencies while analyzing the upcoming trial surrounding a 350-million euro London real estate deal gone wrong. A longtime papal advisor ended all of his work with the Vatican “to protest what he considered grave human rights violations in the prob,” and warned that the government could “return to a universe reserved to totalitarian states.” According to defense attorneys in the case, Pope Francis had given prosecutors “carte blanche to interrogate and conduct searches and seizures without oversight by an investigating judge.” Then, the accused had their information leaked to the media without any chance to give their side of the story to prosecutors. Their lawyers are not being allowed to view documents or challenge the investigation. One official of the Council of Europe protests the case as “self-evidently not compatible with the basic standards of procedural justice that would be applied in other European legal systems.” Echoed one canon lawyer: “This is what you have in a banana republic.”

Protests like these could hinder the Vatican from using its growing jurisdiction. Ms. Winfield closed by mentioning that lawyers for one defendant in the real estate case were going to fight her extradition from Italy based on the unavailability of a fair Vatican trial. A day later, Vatican prosecutors mooted the issue by withdrawing their extradition request. Their stated reasons for doing so were only cursory. Could their motivations have included a desire to avoid more critical examinations from the media, human rights bodies, and Italian courts?

The new procedural protections arrive only a month later. They do inject new opportunities for mercy and a handful of new dignity protections. But they do not affect the near-limitless powers of Vatican prosecutors, nor grant defendants the broad rights they can expect in other Western legal systems. They may mitigate the consequences of conviction, but they do not cure the serious flaws along the road to it.

If the Vatican wants to serve in such a way, and not just do excessive penance for yesterday’s sins, it must strike a balance between the accusers and the accused.

This failure may simply be a hangover from the days when the Vatican’s criminal jurisdiction rarely reached past local souvenir stores. Or, perhaps more ominously, it could be a product of earlier rounds of criticism attacking perceived Vatican leniency. Recall recent criticism of the Church for failing to effectively punish sex crimes against children, including some voiced by Ms. Winfield. The Pope’s decisions to bring more and more cases under Vatican jurisdiction, and appoint “one of Italy’s leading anti-Mafia prosecutors as president of the Vatican’s criminal tribunal,” signal a clear departure from those days.

But excessive prosecutorial zeal can undermine the legitimacy of a criminal justice system just as quickly as can indifference to wrongdoing. A system that prosecutes serious accusations without due regard for defense rights will fail to obtain the justice it seeks, as the recent botched Australian molestation prosecution of Catholic Cardinal George Pell shows.

The Vatican aspires to become a nexus of global criminal justice. This could be a very valuable development for victims of Catholic crime throughout the world. But if the Vatican wants to serve in such a way, and not just do excessive penance for yesterday’s sins, it must strike a balance between the accusers and the accused. It must take the same equalizing attitude with which Pope Francis has attacked clerical arrogance and embed it in a criminal justice system that gives both sides fundamental fairness. The February 16 reforms fall perilously short of doing so. ♦

Matthew P. Cavedon is a criminal defense attorney in Gainesville, GA. He graduated from Emory University in 2015 with a law degree and masters of theological studies.

Recommended Citation

Cavedon, Matthew P. “Vatican Criminal Reforms Ignore Glaring Problems Even as Jurisdiction Expands Worldwide.” Canopy Forum, February 26, 2021.