Can a department of the Vatican, a sovereign state, be forced to defend itself in a British court?
Following a ruling by the British Court of Appeal, the Vatican’s Secretariat of State is set to face a trial about the purchase of the Sloane Avenue building in London — in a lawsuit brought by the businessman Raffaele Mincione.
The ruling also means there can now be a parallel case to the Vatican’s “trial of the century” — in which the same Mincione is defending allegations of financial crimes, including embezzlement and money laundering.
The London deal
First of all, a quick recap: In 2014, the Vatican’s Secretariat of State entrusted Mincione with money which was then intended for a real estate investment in London: A former Harrod’s warehouse at 60 Sloane Avenue in Chelsea was to be turned into a luxury property.
After four years, the Secretariat of State decided to remove the management of the property from Mincione and entrust another businessman with the project, Gianluigi Torzi.
Subsequently, the Secretariat of State decided to take complete control of the property. This, however, is a different aspect of the saga, and one the Vatican trial is also dealing with.
In July, the Vatican finally confirmed the sale of the property — incurring a loss of about 140 million euros, according to Reuters.
What does the appeal sentence mean?
The British Appeal Court’s sentence states that Mincione can bring his claim against the Vatican.
A lower court had suspended any decision on the matter until the trial held in the Vatican was concluded. Mincione appealed. And the appellate court has determined that the case in the UK can go ahead.
The ruling of the court opens up new scenarios. First, it should be remembered that the Secretariat of State is called into question, not the Holy See or the Vatican City State.
Therefore, this is not a procedure that affects the sovereignty of the Holy See.
However, it is a procedure that involves a crucial process element: Mincione can resort to English law because, in the contract with which he sold the management of the London property, it was clearly stated that the contract exclusively fell under English jurisdiction.
According to English commercial law, in this specific case, the Secretariat of State is an entity, one of the parties of a contract, and therefore must comply with the commercial laws defined in the contract.
In technical terms, we are dealing with iure gestionis (private law) and not iure imperi (law of the acts of the public power).
Was the Secretariat of State neutral?
Mincione appealed the first sentence because he wanted the validity of the stipulated contracts to be recognized first, which was also important in the context of the appeal sentence.
The English judges found the decision of the Secretariat of State to appear as a civil party in the Vatican trial meant the Secretariat of State was not a neutral party.
Justice Peter Jackons wrote, in an opinion that found agreement with the other two justices, Males and Birss, the lower court’s judge's conclusion on what he described as the Secretariat's" central argument therefore "was mistaken.”
Waiting for an end to the Vatican trial would serve no useful purpose, therefore.
The appeal ruling also denies the Secretariat of State the ability to appeal to the Supreme Court if necessary, thus effectively closing the matter and giving the green light to another trial.
What is more, within 28 days, the Secretariat of State will also have to pay a deposit for the costs of the appeal.
Some open questions to deal with
The English sentence does not enter into the merits of the charges and the trials. The criminal trial underway in the Vatican will eventually rule whether there have been illegal actions or not.The appeal sentence indicates that "a starting point may be (although this will be for the Commercial Court to decide) to consider what was the true value of the Property at the relevant time.
According to the English judges, "that should be a relatively straightforward issue to determine, with disclosure of documents relating to the Transaction and the benefit of expert valuation evidence which is readily available to both parties in this jurisdiction. If the Secretariat paid the market price or thereabouts, it obtained an asset that was worth what it paid and (at any rate so far as the Transaction is concerned) would not appear to have any valid grounds for complaint. On the other hand, if it paid substantially more than the market price, that would, in the absence of some convincing explanation, constitute strong evidence of corruption. "
However, the English Court of Appeal ruling leaves several questions open.
The first: If the contracts were valid, then what is the trial in the Vatican about? The question will have to be defined because if there are contracts, and everything has been done according to them, then it becomes difficult even to prove a possible deception against the Secretariat of State or extortion.
The second: We know from the testimony of the trial that the negotiation in which the management of the Sloane Avenue estate was transferred from Mincione to Torzi without a lawyer appointed by the Holy See.
It had been a decision of Monsignor Alberto Perlasca, then head of the administration of the Secretariat of State, who had emphasized how Torzi was serving the interests of the Holy See at that juncture.
The contract, however, was signed by him, and the contracts were authorized at the highest level.
Why, then, are neither Monsignor Perlasca nor the heads of the Secretariat of State involved in the process?
These questions will probably be answered in the continuation of the Vatican trial, whose next hearing is set for Sep. 28.