The Pell trial viewed from Italy

Not a single Italian paper picked up on the lessons to be learned from Cardinal Pell’s conviction before the County Court of Melbourne, Australia on Tuesday, December 11, 2018, for five counts of sex abuse on two children, compared with similar proceedings under Italian law. The Court allowed the news to be made public only on Wednesday, February 27, 2019.

Despite speculation that Pell could have been framed by the anti-Bergoglio’s within the Curia — and there are many aspects of the case that are as yet unclear or contested — the Cardinal was found guilty of sexually abusing one child and committing indecent acts against another child four times. Under common law rules of criminal procedure, Pell faces a 50-year sentence (10 years for each of the five counts). Sentencing is expected to take place on March 13. For the time being Cardinal Pell is awaiting sentencing behind bars.

The major differences with Italian criminal law and procedure can be summed up in the following: common law systems are grounded on concepts of retribution, punishment and repayment of a criminal’s “debt to society”; whereas Italian criminal law is grounded on concepts of favor rei. Italian criminal law and procedure do not exist to punish, seek retribution or indemnify society for the actions of convicted criminals but to re-educate and readmit them into society where possible.

A major difference is played by the wording of Italian criminal statutes, which often come with built-in discounts in sanctions, especially in the case of what Italians call “complex crimes” such as is the case with “armed robbery”. In common law jurisdictions if an individual is found guilty of having robbed a victim at gunpoint he would be sentenced to say, X years for one count of robbery plus Y years for possession of a deadly weapon, for a total of X plus Y years. The Italian terminology for sentencing convicted felons to so many years in jail for each crime committed Is known as “cumulo materiale delle pene”. That system was replaced years ago by what is known as “cumulo giuridico delle pene”. Today the Italian criminal justice system relies on “complex crime statutes” that provide for what boils down to reduced sanctions for convicted felons.

The other significant difference between what done in Italy’s single jurisdiction as opposed to what done in common law jurisdictions is that for example Pell’s conviction comes at the end of the trial (or first instance proceeding) which may have taken as long as two or more months of continuous daily court sessions to try, not years. Common law systems are in fact characterized by one, long, continuous hearing of their Courts as opposed to the series of fragmented hearings of “civil law” Courts.

Pell’s conviction ends the trial and upon sentencing, Pell will begin to serve out his sentence in jail whence he may lodge an appeal. An appeal by Pell, however, will not be able to reverse or override the unanimous verdict of guilty determined not by the Court but by a jury of twelve peers, i.e., citizens chosen at random from among the civilian population of the County. The jury makes its determination and issues its verdict based on the facts of the case, as ascertained at trial.

In the Pell case, the Jury’s verdict of guilty was unanimous and essentially ends the trial and upon sentencing (before the Court set for 13 March 2019), Pell will begin to serve out his sentence in jail whence he may lodge an appeal. An appeal, however, will not be able to reverse or override the verdict of guilty other than under exceptional circumstances and so the trial or first instance proceeding is almost always final.

In Italy, it can take years for a judgment to become final because the entire process by definition includes not only the trial but the first appeal (which does not bar re-discussing the merits) and the second appeal before the Court of Assizes and/or Cassations. The entire process on the average takes about seven years to complete, because of the greater fragmentation of the Italian legal system even when compared with Italy’s “civil law” neighbours such as France, Switzerland, Austria and Germany.