Italian Supreme Court of Cassation (Corte di Cassazione italiana), Criminal Section IV, No. 34576/2021, 17 September 2021
The 3rd Criminal Section of the Court of Cassation ruled once again on the possibility of subjecting to proceedings a cleric already judged for the same facts in canonical proceedings, without this constituting a violation of the prohibition of bis in idem.
The whole issue is based on an extensive interpretation, suggested by the appellant, of Article 649 of the Italian Code of Criminal Procedure, according to which the prohibition on retrial, read in accordance with Articles 2 and 3 of the Constitution, should be considered under an "international law perspective", thus being able to operate also in relations with States that are peacefully non-members of the European Union, but with which Italy has long-standing relations of reciprocity and trust, such as the Vatican City State.
The case, however, has nothing to do with the Vatican courts, but rather with the internal jurisdiction of the canonical order. In other words, these are sentences pronounced by the ecclesiastical authority in the exercise of the "native and proper right" - as can. 1311 of the Code of Canon Law defines it - "to impose penal sanctions on the faithful who have committed crimes". As such, the exercise of this right does not generate any constraint or effect on the Italian legal system.
Even if it was a matter of relations between state jurisdictions, and not, as in the present case, between a state jurisdiction and a confessional one, the applicant's complaints could not have been upheld. It is certainly true that the principle/guarantee of ne bis in idem has a particular "expansive force" in the Italian legal system, but this does not mean that it has supranational value, in the absence of specific and precise conventional acknowledgements.
(Comment by Alessandro Negri)