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“Americans don’t appreciate the vast powers that investigating magistrates have in Europe. It only takes one who wants to make a name for him or herself to issue an arrest warrant for the former Pope.” —Nicholas Cafardi, Professor Duquesne Univ. School of Law “So much of this is unprecedented so there’s nothing set in stone about it.” —Pamela Spees, Attorney Center for Constitutional Rights Immunity is a powerful thing. Granted to certain government officials, judicial officers, political ambassadors and other people in positions of authority, it can also be given to subjects of criminal investigations, witnesses and other targets of the criminal system. It can prevent liability, reduce it or shift it all together to a different person or entity. Judges and magistrates enjoy a limited form of immunity for decisions that they make in the course of their duties on the bench. They are granted a personal immunity over their public decisions. In essence, if you disagree with a decision that a court has rendered, you may appeal that decision to a higher court, but absent a showing of personal malice or malfeasance, you may not bring a lawsuit against the judge who issued the decision. To allow those kinds of lawsuits would bring the justice system to a halt. Similar protection from liability is granted to the charging decisions of prosecutors. A criminal defendant may appeal those charging decisions, but absent a showing of prosecutorial misconduct, they may not prevail in a suit directly and personally against the prosecutor who made the charging decision. That’s not to say that liability may not lie with the state. Convicted criminals who are exonerated after spending years in prison for crimes that they did not commit often sue and receive large settlements from the states that confined them. These awards arise out of decisions made by those prosecutors and judges along with duly impaneled juries but there is no personal liability for officials who made reasonable, though ultimately incorrect, decisions along the way. With the recent and unprecedented resignation of Pope Benedict XVI, legal scholars have asked whether the Pope’s resignation exposes him to civil liability by removing a former cloak of immunity that came with his title. The Journal of the American Bar Association addressed that issue recently in a piece by Debra Cassens Weiss. Attorneys for the Vatican argued that the Pope’s resignation doesn’t change his legal status at all. Their argument goes like this: The Pope is the head of State of the Holy See, Vatican City. The relationship of Vatican City to the U.S. is no different than that of any other foreign nation, be it Canada, Russia or North Korea. Just as the high-ranking officials of those countries would have immunity (both from provisions of American law and of international treaties) so too would the Pope. And because the Pope would almost certainly be sued for decisions made in his official role or for responsibilities arising from that role, his immunity would remain intact despite his resignation. Attorney Jeff Anderson, who has represented plaintiffs in lawsuits against the Vatican, agreed that the resignation would not affect any civil lawsuits pending in the U.S. or elsewhere. He expressed concern, however, if the Pope emeritus should decide to travel outside of the Vatican, particularly if any foreign governments or their judicial systems decided to investigate the role of the Vatican in any in civil or criminal case. Advocacy agencies are, not surprisingly, somewhat more aggressive in their claims. The Associated Press reports that the Center for Constitutional Rights in New York has asked the International Criminal Court to investigate the Vatican’s response to priest sex abuse claims. The ICC doesn’t recognize international immunity, however, so the Pope’s resignation has no effect on any action (unlikely as it may be) by the ICC. The Vatican, generally neutral politically, is not a signatory to the ICC and so that court has no jurisdiction within the Vatican’s borders. The Vatican’s legal relationship is strongest with Italy due to treaties and agreements between the nations. And while the Pope’s status is likely no different than that of any former government official who might travel after they leave office, the fact that there has not been a Papal resignation in modern legal times means that this is a whole new world of legal interpretation. David Hejmanowski is a Magistrate and Court Administrator at the Delaware County Juvenile Court and a former Assistant Prosecuting Attorney.
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