While I have very little to add to dr. Worden's general analysis, it did lead me to discover an interesting point of ECtHR law: It turns out that there is at least one precedent for the fairness of Vatican court proceedings being tested in Strasbourg. In the 2001 case of Pellegrini v. Italy, the Court held that Italy had violated art. 6 by enforcing a Vatican ruling without properly examining the fairness of the Vatican proceedings. The case concerned the annulment of a marriage for reasons of consanguinity, where the applicant (and respondent in the original Ecclesiastical Court case) had not been given adequate opportunity to speak and had not been given sufficient opportunity to seek legal advice and to be represented by counsel.
It will be interesting to see how this works out for Mr. Gabriele. Presumably he will be represented by counsel, etc., so the Pellegrini case won't be directly on point, but if he is found guilty and sentenced to a prison term, that term will have to be served in an Italian prison, which again puts Italy in the position of being asked to enforce a Vatican court ruling. We may predict that this criminal trial will not have any glaring omissions like in the Pellegrini case. Instead, the Italian courts and, perhaps, the ECtHR will have to confront the general questions raised in the Worden blog post:
This raises the question of whether Gabriele could even in principle get a fair hearing, given the conflict of interest in an official under the Pope judging a case in which his butler betrayed him by leaking even some of the Pope’s internal letters. The religious and political stature of the Pope in the Vatican suggests that it would be difficult to find any Vatican official able to judge such a case of betrayal in a neutral fashion. Furthermore, that the leaked documents point to cronyism and corruption in Vatican contracts raises the possibility that corruption had also reached the Vatican’s court system.(He then mentions something about the EU and the ECJ, which is an unfortunate lapse in an otherwise excellent post.)
Can a Vatican trial ever meet the standards of art. 6 ECHR? And does it matter? After all, neither Vatican City nor the Holy See is a party to the Convention, and as such they are not required to obey its dictates. In normal cases of extraterritoriality, including the art. 6 case of Othman last January, the bar tends to be set much lower, and the European court is only asked to examine whether certain fundamental principles haven't been violated. (In Othman, the British were asked to make sure that the applicant would not be prosecuted in Jordan using evidence obtained through torture.) However, in those cases the ECHR comes in because of a possible extradition. Here, the prisoner would travel in the opposite direction.
Pellegrini seems to set the hurdle at the ordinary intra-European hight:
40. The Court notes at the outset that the applicant’s marriage was annulled by a decision of the Vatican courts which was declared enforceable by the Italian courts. The Vatican has not ratified the Convention and, furthermore, the application was lodged against Italy. The Court’s task therefore consists not in examining whether the proceedings before the ecclesiastical courts complied with Article 6 of the Convention, but whether the Italian courts, before authorising enforcement of the decision annulling the marriage, duly satisfied themselves that the relevant proceedings fulfilled the guarantees of Article 6. A review of that kind is required where a decision in respect of which enforcement is requested emanates from the courts of a country which does not apply the Convention. Such a review is especially necessary where the implications of a declaration of enforceability are of capital importance for the parties.Regardless of how unequivocal this sounds, I doubt that this rule would be applied in full force in a possible criminal case against Mr. Gabriele. After all, on its face this would mean that Italy could never enforce any criminal sentence imposed by a Vatican court, and certainly not one that involved a crime against the Vatican authorities themselves. And I doubt that either the Italian courts or the ECtHR would want to go that far. Instead, I suspect that - regardless of any rhetorical flourishes - the ultimate standard will be much more pragmatic: Are the flaws of the Vatican proceedings such as to cast doubt on the fundamental fairness of the case or the guilt of the defendant? Applying that standard, I think the Italians would end up enforcing Mr. Gabriele's sentence. That is, assuming he is given one.