Pope Francis stacks the Vatican ‘supreme court’ — but why?

Pope Francis continued his constitutional overhaul of the Vatican City State on Friday, announcing a new slate of judges for the territory's court of cassation — referred to by the Holy See's press office as its "supreme court."

The pope recently revised the basic constitutional law of the territory, turning over its leadership and effectively distancing its governance from the ecclesiastical operations of the curia, and increasing the scope for lay expert participation in its executive and legislature.

But his move to reconstitute the court of cassation, announced June 2, appears to row in the opposite direction, bringing a slate of cardinals into the Vatican City judiciary who do not have a legal background, either civil or canonical, despite the increasingly complex caseload of Vatican City criminal courts.

So where does this latest move fit in within the pope's broader arc of Church legal reform? Is it a step backwards for judicial credibility, or is it part of a deeper emerging trend under Pope Francis?

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The Vatican City judicial system has long operated in a kind of symbiotic parallel to the universal canonical legal system.

While canon law, and canonical legal principles remain the legal underpinning of the Vatican's civil system — and provide the framework for judicial legal interpretation — much of the criminal law of the city state was ported over from the Italian legal system at the time of the Lateran Treaty.

Since then, as recent high profile cases have shown, arguing and adjudicating complex cases before the court requires a highly specialized expertise in both canon law and what is effectively an older version of the Italian criminal code and jurisprudence — with lawyers only able to cite Italian legal argumentation and cases when they predate reforms to the civil system in the 1970s, which were not carried into the Vatican code.

In previous interventions, Francis has moved to appoint specialist lay judges to the city state's courts who have specialist legal knowledge likely to prove useful to its caseload — in 2021, in the weeks before the opening of the current trial over the Secretariat of State's infamous London property deal, the pope named an Italian expert in property transfers and contract law to the lower court.

But last week, Francis took the unusual step of naming several cardinals without legal expertise to the city state's court of cassation, and, in changes set to come in at the end of the year, announced he is installing Cardinal Kevin Farrell, the camerlengo, as its president.

In addition to Farrell, who also serves as prefect of the Dicastery for Laity, Family, and Life, Francis named the president of the Italian bishops’ conference, Cardinal Matteo Zuppi, Cardinal Paolo Lojudice of Siena, Cardinal Mauro Gambetti vicar general for the Vatican City state to the court.

None of the four has any training in canon or civil law. While Francis also named two lay Italian legal scholars as associate judges to the court, they form a minority of the panel — a curious development, given his recent overhaul of the Vatican City executive and legislative branches to include more lay participation.

Until April of this year, the Vatican City court of cassation consisted of judges appointed by the court's president, who was always ex officio the head of the Apostolic Signatura, the Church's supreme canonical court, and its members drawn from the signatura's own judges. Following his April reforms, Cardinal Dominique Mamberti, the signatura's prefect, was removed as the court's president, and the appointment of judges was reserved to the pope personally.

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Critics of Francis’ move Friday have denounced the changing of the judicial guard as a bid to turn the supreme Vatican civil chamber into, in effect, a political court under the sway of pontifically appointed personalities, and without a quorum of legal experts to effectively handle its caseload.

That is a dramatic motive to ascribe to the pope. And it would be curious if it were true. His changes to the appellate court to one side, Francis’ Vatican City reforms have tended in the opposite direction — working to distance its governance and institutions from broader curial dependence and entanglements.

One school of thought, argued by some dedicated Vatican watchers, is that the changes to the court of cassation are of a piece with other Francis moves meant — so they argue — to subvert the Vatican's legal process and clear the way for rough justice to be done to out-of-favor officials like the disgraced former sostituto Cardinal Angelo Becciu.

Those same commentators point to legal moves by Francis to clear the way for the initial criminal investigation into Becciu and the financial affairs of his former department which, they say, subverted due process. Similar arguments were made by the late Cardinal George Pell in the initially pseudonymous "Demos memo."

But those arguments do not seem to stand up to careful legal scrutiny.

Francis did issue a number of rescripts — formal permissions to derogate from the normal law — to facilitate the investigation into Becciu and his co-defendants in the Vatican trial.

However, those rescripts were an ordinary and necessary exercise of executive power by the pope, explicitly addressing the unique circumstances of the case: that the ordinary investigative process would otherwise have required prosecutors to report to officials who were the subjects of the investigation.

And if Francis’ actual intention Friday was to subvert the ordinary administration of justice, stocking the court of cassation with "political appointees" would be an odd and likely ineffective way of going about it, given the broader reforms he has already made.

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Becciu is currently on trial in Vatican City for corruption, fraud, embezzlement, and witness tampering. The court hearing the case, the Vatican City's court of first instance, is composed solely of lay judges — something Francis himself made possible.

For centuries, cardinals had the legal privilege of being tried only before a court of their ecclesiastical peers — criminal cases involving cardinals in Vatican City had to be heard by the court of cassation at first instance, leapfrogging the lower courts, so that defendants like Becciu had their cases heard first and exclusively by a chamber made up of judges from the Apostolic Signatura.

But in 2021, several months before Becciu's indictment, Francis changed that law, adding to the lower court's competence "cases involving the Most Eminent Cardinals and the Most Excellent Bishops," except in spiritual matters and with the pope's prior approval.

If Francis’ aim is to assert political control of a judiciary of which he is the head, stacking the court of cassation is a relatively ineffective way of doing it, given he's already turned its most sensitive cases to the lower courts — plural.

Many have noted that the Vatican financial trial, soon to enter its third and likely final year, is almost certain to end in an appeal — whichever way the judges decide. But some Vatican watchers responding to Friday's announcement regarding the court of cassation appear to have taken as read that an appeal in the Becciu case would end up before that court, when there are good reasons to assume it would not.

Between the lower tribunal of Vatican City and the court of cassation sits the Vatican City Court of Appeals which, as currently constituted, has judges drawn from the Roman rota, the Church's highest judicial court of appeal — one that, because of a concordat with the Italian state on case of marriage nullity, often hears cases with civil as well as canonical ramifications.

Having made civil cases involving cardinals subject to the ordinary court, it follows that they are similarly subject to the ordinary appeals process as well, along with the canonical principle that once a sentence is confirmed on appeal, it cannot be appealed higher on the merits of the case.

Whether Becciu is acquitted or convicted by the lay judges of the ordinary tribunal, any appeal would be heard by the Church's standing body of expert canonical judges, and the case would only make it to the court of cassation if the two courts could not agree — or if an appeal against the personal integrity of the judges or competence of the courts were lodged.

While such an appeal could yet happen, there's little obvious reason to expect that a court led by the manifestly legally inexpert Cardinal Farrell would be more likely to deliver a verdict against the constantly in-and-out of papal favor Becciu than would one led by the more legally seasoned Mamberti.

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But, whatever the pope's secret hopes for his new Vatican court of personal appointees, it does seem clear that the move is a step back for the overall credibility of the Vatican City judicial system, which has come under repeated scrutiny and criticism during the course of the financial scandal trial.

While few, if any, serious challenges have been made to chief judge Giuseppe Pignatone's legal bona fides and experience, criticism of the Vatican prosecutor (and Pignatone's old legal sparring partner) Alessandro Diddi has not been entirely without merit.

Diddi has himself come under fire for badgering witnesses, including his own star informer Msgr. Alberto Perlasca, and adding and dropping charges to the sprawling indictment as the case progresses. He has also faced scrutiny for deflecting questions about the full scope of his investigation, parrying demands from defense lawyers for access to his evidence by citing the confidentiality of an unknown number of "ongoing investigations" into an undisclosed slate of potential future defendants.

Pignatone's court has widely been seen as doing a good job of keeping Diddi in line, while juggling at times soap-operatic developments (like the star defendant producing secret recordings of papal phone calls). But it remains the case that the Vatican's judicial credibility is on trial in the case, every bit as much as Cardinal Becciu.

In that context, stuffing the city state's top court with papal favorites with no legal training or experience is hard to see as a step forward for credible reform.

What, then, might Francis be doing?

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One possible interpretation, which could be seen to line up with his wider reforming agenda, is that he is attempting to cement the separation of Vatican City governance from the operations of the Roman curia.

His April reform, removing Mamberti as president of the court of cassation and ending the presumption that cardinal judges be drawn from the Apostolic Signatura, broke the status of the court as a kind of specialist camera of the Church's supreme canonical tribunal.

One of the explicit effects of Francis’ recent reform of the Vatican City state's constitutional law was similarly to strip out several references to the Secretariat of State, which was previously referred and deferred to in the law as an influential intermediate between the city state's governorate and the pope personally.

Instead, the revised basic law emphasized the pope's immediate personal jurisdiction, executive, legislative and judicial, over the territory, rather than filtered through the broader international legal person of the Apostolic See.

Farrell's nomination as incoming president of the court of cassation could, in this light, be seen as a bid to vest the camerlengo with a formal role at the head of the city state's judiciary as a kind of personal papal proxy in the event of a papal sede vacante.

Of course, if this is the underlying idea, it has been badly obscured by the Holy See press office, which didn't reference Farrell's title as camerlengo at all in the official announcement, billing him instead with his (seemingly irrelevant) title of prefect of the Dicastery for Laity, Family, and Life.

As camerlengo, Farrell has increasingly been handed sensitive governing roles by Francis in recent years, including as head of a select committee in charge of reviewing sensitive financial matters.

These roles have, it should be noted, often come at the expense of the Cardinal Secretary of State Pietro Parolin, whose departmental portfolio has been shrunken piecemeal by financial and other curial reforms.

Farrell's rise with the Vatican legal landscape, then, could be a reflection of the increasing importance Francis places on the office of camerlengo amid his pattern of concentrating power in a more personal papacy, at the expense of established institutional governing mechanisms.

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