Violence against Speakers / Impunity
Duque v. Ministry of the Interior and Justice
Closed Mixed Outcome
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The Vatican State Tribunal declared its lack of jurisdiction over the trial of the two Italian journalists Gian Luigi Nuzzi and Emiliano Fittipaldi, accused of moral complicity in the acquisition and disclosure of confidential news and documents. The journalists allegedly conspired with three officials of the “Pontifical Commission for the Study and Direction of the Economical-Administrative Structure”(COSEA). The two journalists authored the books Avarizia and Via Crucis, which revealed corruption and misuse of Vatican finances based on documents leaked by public officials who worked for COSEA. Two out of the three COSEA public officials, who were accused of disseminating confidential information and documents, were found guilty. In the text of the sentence that condemned the Vatican officials for having facilitated the dissemination of information by the journalists, the Court however recognized “guarantees in favour of freedom of expression and freedom of the press by the divine law.”
The 2015 scandal called Vatileaks II follows a first Vatileaks scandal in 2012, when leaked documents revealed corruption and mismanagement of the Vatican’s finances facilitated by its bank (IOR, Institution for the Works of Religion). In the Vatileaks I case, many of these documents were published by journalist Gianluigi Nuzzi in a book called His Holiness.
Similarly, the documents under scrutiny in the Vatileaks II scandal mainly pertained to economic and administrative activities of certain institutions of the Holy See. In November 2015, following the publication of some of these documents in the books Avarizia and Via Crucis, the book authors- respectively Emiliano Fittipaldi and Gianluigi Nuzzi- were charged under Article 116 bis of the Vatican Criminal Code, as modified by Article 10 of the Holy See’s Law IX (2013), for allegedly disseminating leaked confidential information and documents.
Among these documents were photos documenting a theft which took place inside the Vatican prefecture in 2014, a letter between high-ranking clerics regarding the cardinals’ “benefits” and a letter to the Pope by the Prefecture’s Revisers Committee expressing “personal concerns and recommendations” about the Vatican’s financial situation. Further, there were documents relating to the so-called Cause dei Santi (the processes for beatifications and sanctifications), which revealed discrepancies between declared and actual expenses. According to Nuzzi’s notes following a meeting with COSEA’s members Monsignor Lucio Ángel Vallejo Balda- a Spanish cleric- and Francesca Chaouqui- a PR consultant-, the Vatican has more than 200 bank accounts at the IOR bank specifically for this purpose.
Law No. IX was enacted in July 11, 2013, after Vatileaks I. Article 10 of this Law added Article 116 bis to the Criminal Code to address “crimes against the security of the State.” This provision criminalizes the circumstances under which an individual “illicitly obtains or reveals information or documents whose disclosure is forbidden” and the offence is punishable with six months to two years imprisonment or a fine ranging from 1,000 to 5,000 EUR. In cases where the information or documents concern “the fundamental interests or the diplomatic relations of the Holy See or the State”, the offence carries a higher penalty of between four and eight years in prison.
While the trial was ongoing, the original charges against the journalists were dropped and substituted with charges of “moral complicity in the disclosure of confidential information and documents.” The crimes of Nuzzi and Fittipaldi were allegedly committed with the involvement of Balda, Chaouqui and the cleric’s executive secretary, Nicola Maio, whom the journalists allegedly pressured into providing the confidential documents and information.
Balda worked at the Prefettura Ecclesiastica, the organ in charge of supervising the financial accounting of all the Holy See’s institutions. According to the deposition of a witness, a huge quantity of documents from the Prefettura’s confidential archive were photocopied in the weeks when the facts under scrutiny took place. Moreover, according to the analysis of Balda’s online communications (computer and phone) it emerged that he transmitted to the journalist Nuzzi documents related to the works of COSEA. During the process, the defendant Balda also confessed to having transmitted to Nuzzi 5 pages containing 85 passwords, and opening 85 documents. Moreover, he also gave him the password to his own email account, claiming he did so “completely spontaneously, probably not in a condition of full lucidity “. Fittipaldi confessed to having met Balda only four times, when the writing of his book was almost finished. Also, Balda himself confirmed to have independently decided to forward certain confidential documents to the journalist.
The journalists were first introduced to Monsignor Balda by Francesca Chaouqui, allegedly in order to inform them about a climate of “resistance” among some of the administrative officers of the Holy See against the reforms planned by the new Pope Francesco- following the disastrous situation of the Vatican finances at the time of Pope Benedict XVI’s resignation- and concerns that such a “resistance” could frustrate the works of COSEA.
Consequently, Balda, Chaouqui and Maio were charged with forming an “organised criminal association” with the aim of “committing several illegal acts” by leaking confidential documents, under art. 25 of Law No. IX of 2013. These charges were later dropped since the actual establishment of a criminal association could not be proved, as required under the provision. These charges were substituted with those of disclosing confidential information and documents, under the above mentioned Article 116 bis of the Criminal Code.
The prosecutor subsequently called for the acquittal of Mr. Fittipaldi due to a lack of evidence, but asked for a suspended sentence of one-year imprisonment for Mr. Nuzzi. The journalists argued that the charges against them constituted a violation of the right to freedom of expression and freedom of the press; furthermore, they maintained that the Vatican State Tribunal lacked jurisdiction to try them since they are Italian citizens.
 It is worth noting that the Criminal Code of the Vatican State corresponds to the 1889 Italian Criminal Code (so called Zanardelli Code) as adopted by the Law of June 7, 1929, and successively modified and integrated by the Vatican laws.
The Vatican State Tribunal considered the charges against Mr. Nuzzi and Mr. Fittipaldi for “moral complicity in the disclosure of confidential information and documents”, as well as the charges against Mgr Vallejo Balda, Francesca Chaouqui and Nicola Maio for disclosing the confidential information and documents.
According to the prosecution, the journalists’ moral complicity arose from their “soliciting and exercising pressure, especially on [Msgr] Vallejo Balda, in order to obtain confidential documents and news”, that they subsequently used for their books. In the prosecutor’s view, the pressure and opportunity to work on these issues were the primary reasons behind the decision to disclose the secret dossiers. Roberto Palombi, Mr. Nuzzi’s attorney, argued that the charges unjustly criminalised the journalists for the mere fact of “asking questions”. In response, Vatican co-prosecutor Roberto Zanotti argued that the charges only regarded the allegedly illegal methods used for obtaining the documents. During the process, Balda stated that “giving [the journalists] these documents was somehow a way to pay for my freedom. Of course, before meeting the journalists I did not have any idea about doing so”. However, no evidence of excessive pressure placed by the journalists on Balda could be found: he himself declared that he felt threatened, but was not actually threatened.
Lawyer Palombi also argued that the Vatican State Tribunal had no jurisdiction since the alleged crime of receiving and publishing private documents took place in Italy, not in the Vatican. The lack of jurisdiction was recognized on July 7, 2016, when Mr. Nuzzi and Mr. Fittipaldi were both acquitted. According to the Criminal Code, what is relevant for punishability is the locus commissi delicti (governing law of the place where the crime took place) – namely Italy, in this case. Moreover, in a 2013 motu proprio (Papal Edict), the Pope specified that the Holy See’s jurisdiction over the crimes listed in law IX of 2013 only regarded those acts committed by “public officials” during the exercise of their functions.
The Vatican State Tribunal prefaced its decision about Nuzzi and Fittipaldi by recognizing the “guarantees in favour of freedom of expression and freedom of the press by the divine law”, quoting- among other documents- a 1963 encyclical by Pope Giovanni XXIII, stating that “the man can freely research the truth and disseminate his opinion.” The Court then concurred with the defence that as the crimes were committed in Italy and the journalists were not Vatican officials, it did not have jurisdiction to try them.
By the same reasoning, the Vatican Court considered its own jurisdiction to be valid in the cases of Balda, Chaouqui and Maio. Therefore, the Court sentenced Msgr Vallejo Balda to 18 months of detention (and subsequently received the Pope’s pardon) under Article 116 bis, for disseminating confidential information and documents. Francesca Chaouqui was sentenced to 10 months of detention under Article No. 64 (1) of the Vatican Criminal Code for (moral) complicity in the crime committed by Balda. She was found to have facilitated the disclosure and disseminating the documents under scrutiny, and in particular of introducing the journalists to Mons. Balda. Moreover, by arranging meetings with the journalists, she created the opportunity and space for the crime to be committed. However, the Court stated that the documents under scrutiny did not concern “the fundamental interests or the diplomatic relations of the Holy See or the State”: therefore, the higher penalties provided by art. 116 (2) were not applied. Finally, Nicola Maio was acquitted for lack of evidence.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling has a mixed outcome: it expands freedom of expression to the extent it acquits the two journalists, and explicitly mentions the importance of recognizing and guaranteeing freedom of expression. It contracts expression in so far as: i) such acquittal is due to a lack of jurisdiction, and does not take place on the merits; ii) it sentences two public officials to detention; in particular, it does not recognize the right to access information of public interest, giving priority to the secrecy of information.
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