On the Right of Defense before the Roman Rota

On 10 March 2017, during a meeting of the Camera dei Deputati (Chamber of Deputies, 757th Meeting, XVII Legislature), Mr. Renato Brunetta, a member of the Italian Parliament, posed an interpellation to the Sottosegretario di Stato per la Giustizia (Undersecretary of State for Justice), Mr. Gennaro Migliore, regarding the right of defense before the Roman Rota[1] in trials aimed at obtaining a declaration of nullity of marriage. In particular, Mr. Brunetta drew the Government’s attention to the fact that the Decano del Tribunale della Rota Romana (Dean of the Ecclesiastical Court), through a decree issued in December 2015, was preventing the parties to such trials from appointing their own defenders by claiming that prerogative for himself. The right of defense is enshrined in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), to which the Holy See is not a party. The ECHR, however, is binding upon Italy, for which the same right is also a fundamental principle at the constitutional level.[2]

Therefore, according to Mr. Brunetta, a problem emerges for Italy, as once a declaration of matrimonial nullity is pronounced by the Roman Rota, the decision is considered a judgment of a foreign court by the Italian legal order and may be recognized therein. This is done through a special procedure laid down in Article 8 of the Accordo di Villa Madama (Villa Madama Agreement) signed by Italy and the Holy See in 1984.[3] Such procedure differs from the automatic recognition of foreign judgments provided for by Articles 64 and 65 of Legge 31 maggio 1990, n. 218 (Law no. 218 of 1990) on international private law. According to the Villa Madama Agreement, judgments declaring matrimonial nullity are recognized through the exequatur of the Italian Corti d’Appello (Courts of Appeal), under Articles 796 and 797 of the Italian Civil Procedure Code, and produce civil effects in the Italian legal order. Mr. Brunetta therefore asked what measures the Italian Government was planning to take to ensure compliance with the right of defense, as protected by both the Italian Constitution and the ECHR. 

In answering the question, Mr. Migliore began by saying that, since the Lateran Pacts of 1929,[4] the Italian State has considered the Catholic Church as an independent and sovereign entity. Such stance did not change with the signing of the Villa Madama Agreement. Moreover, the sovereignty of the Holy See over the State of Vatican City is recognized by Article 7 of the Italian Constitution. Having stressed this, the Undersecretary added: 

Within such legislative framework, the separation between the legal orders of the Republic and the Holy See does not allow the Government to interfere in issues pertaining to the independence and sovereignty of the Holy See, also with regards to jurisdictional powers. Thus, the Government may directly inspect neither the initiative of the Roman Rota’s Dean as to the appointment of the defender in trials for the declaration of matrimonial nullity held before Ecclesiastical Tribunals, nor the compliance of the Ecclesiastical proceedings with the principles expressed in the European Convention on Human Rights. The issue of the restriction of the right of defense, stemming from the Dean’s decree, may, instead, have relevance with regard to the exequatur of the Ecclesiastical judgments by the Italian judges and this is a general principle, which applies to all cases of reciprocity between two sovereign States’ jurisdictional systems. […] In order for the judgment to be recognized, the Italian judge shall assess, specifically, whether during the proceedings in front of Ecclesiastical Tribunals the right of action as well as defense of the parties was respected, in a manner not dissimilar to what is prescribed by the fundamental principles of the Italian order […] and, therefore, whether, despite the restriction to the right to appoint a private defense lawyer introduced by the Ecclesiastical jurisdiction, the proceedings were fully respectful of the right of defense.  

In conclusion, Italy’s compliance with the right of defense stemming from both the ECHR and its constitutional law principles is to be ensured through the exequatur of the Italian judges. More specifically, the Courts of Appeal, which are in charge of exequatur proceedings, will determine whether and to what extent each declaration of nullity of marriage complies with international and domestic principles concerning the right of defense. In this regard, it is worth noting that the Corte di Cassazione (Court of Cassation) has already identified cases where granting the exequatur of Ecclesiastical judgments would have been contrary to the Italian public order for breaching supreme principles of constitutional law.[5]

Federico Di Dario and Luigi D’Ettorre

[1] As defined by Can. 1443 of the Code of Canon Law, the Roman Rota (Tribunal Apostolicum Rotae Romanae) “is the ordinary tribunal established by the Roman Pontiff to receive appeals”. A claim may be addressed to the Pope – “the supreme Judge for the entire Catholic world” – who can handle the case personally or through ordinary tribunals like the Roman Rota (Can. 1442). The Rota was established in the 13th century and it is called like this (Rota is Latin for “wheel”) because the judges originally met in a round room to hear cases. 

[2] As affirmed by the Italian Constitutional Court: see Judgment of 22 January 1982, no. 18 and, more recently, Judgment of 16 January 2003, no. 29.

[3] Accordo tra la Santa Sede e la Repubblica italiana che apporta modificazioni al Concordato Lateranense. The Agreement was signed by Cardinal Agostino Casaroli and Prime Minister Bettino Craxi in Rome on 18 February 1984 in order to revise the previous Concordat (see next footnote).

[4] The Lateran Pacts were signed by the Prime Minister Benito Mussolini and Cardinal Pietro Gasparri in the Lateran Palace on 11 February 1929. They contained three different documents: the Treaty; the Concordat and the Financial Convention. Art. 34 of the Concordat laid down the rules on Catholic matrimony and the declaration of its nullity. 

[5] See, for example, Corte di Cassazione (Sezioni Unite Civili), 17 July 2014, nos. 16379 and 16380

Gennaro Migliore, Chamber of Deputies, 10 March 2017.

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