The prosecutors also said the deputy secretary of state, Monsignor Edgar Pena Parra, similarly wasn’t a suspect because he “was not informed” about what his subordinates were up to, though even the prosecutors’ own documentation suggests he was. In fact, no senior leaders are known to be under investigation.
The case has highlighted the limitations of the Vatican law, which is based on an 1889 Italian code no longer in use and greatly curbs the rights of defendants during the investigative phase compared to modern legal systems.
For instance, Francis authorized Vatican prosecutors to use a “summary rite” that allowed them to deviate from typical procedures, essentially giving them carte blanche to interrogate and conduct searches and seizures without oversight by an investigating judge, defense lawyers say.
“It’s a phase that’s completely in the hands of the prosecutors,” said Laura Sgro, who has defended clients before the Vatican tribunal but is not involved in this case. “It’s a phase that doesn’t foresee the most minimal right to defense.”
It took months for the suspects to even be able to tell their side of the story to prosecutors, despite having their names and photos, displayed on a Vatican police circular, leaked to the media. Their lawyers have had no access to the documentation in the case. They never received a list of the material seized or had the chance to contest the seizures before a judge, as would be required in Italy. To date no one has been indicted.
The prosecutors insist the rights of the accused have been safeguarded, and that the pope had to order the “summary rite” because of a technicality owing to the old code in use.
But Paolo Carozza, a member of the Council of Europe’s Venice Commission, which promotes democracy, rule of law and human rights, said there appeared to be red flags with the case, starting with the search warrant, though he acknowledged he wasn’t familiar with particulars.
“I think it (is) self-evidently not compatible with the basic standards of procedural justice that would be applied in other European legal systems,” said Carozza, a law professor at the University of Notre Dame and former member of the Inter-American Commission on Human Rights. “There needs to be specific causes for specific searches of specific things… And then there needs to be an accounting afterward, certainly, and an opportunity to contest things.”