[Editor’s Note: This is the final Part of our I-CONnect symposium on the Italian Constitutional Court’s recent judgment on assisted suicide. The Introduction is available here, Part I is available here, and Part II is available here.]
—Nannerel Fiano, P.h.D. Candidate in Constitutional Law, University of Milan.
With its historic Decree 207 of 2018 concerning the notorious Cappato case, the Constitutional Court got involved in a widely debated subject – not only by experts in constitutional doctrine – namely the so-called “assisted suicide”.
When constitutional judges were called upon to rule on the legitimacy of art. 580 of the Criminal Code, they proclaimed it illegitimate, thus paving the way for significant modifications (nothing short of revolutionary) of the body of law that regulates the so-called “end of life”. But there is more.
The “revolution” involves other levels too, since the Constitutional Court has introduced a new development “strategy” for the constitutional process by activating “powers of process management,” which brings it closer to the German experience of the Bundesverfassungsgericht.
The Unvereinbarkeitserklärung – introduced by German constitutional judges on a case-law basis and subsequently turned partially into positive law in 1970 through arts. 31 II and 79 I of the Bundesverfassungsgerichtsgesetz, which allowed for a rule to be declared not only null and void but also incompatible – is characterized by a deferral of the effects of the unconstitutionality ruling in order to allow legislators to suitably amend the rule so as to render it compliant.
The logic underlying such a decisional model makes it possible to transcend the nullity-invalidity principle of unconstitutionality, since a rule that has been deemed unconstitutional continues to exist within the legal system until future legislative revision or until the matter of constitutional legitimacy is raised with respect to an unconstitutional rule which has not in fact been amended by legislators.
Legislative revision can be characterized, as the case may be, either by retroactive effectiveness (from the time of the decision itself or from the moment the censured ruled became effective) or by ex nunc effectiveness, leaving previous situations and relationships “untouched”.
Having established that, we now turn our attention to the three forms an incompatibility ruling may adopt:
- a “pure” form, whereby ongoing proceedings are suspended and judges are therefore relatively unable to apply the incompatible law until it is amended through successive legislative action;
- a form adopted by the Fortgeltungsanordnung, namely to bestow legitimacy on the law in question until it is amended by successive legislative action, in order to, for example, safeguard legal certainty;
- a form where the questioned rule is complemented by temporary regulations in order to safeguard, for example, a minimum level or standard of rights enforcement.
The decisional variable this essay is mainly concerned with corresponds to the “pure” incompatibility ruling.
It is to underline a structural difference between the incompatibility ruling and the deferred unconstitutionality ruling mentioned above: whereas in the first the BVerfG declares a law as unconstitutional yet not null and void, in the second the Constitutional Court restricts itself to ascertaining the unconstitutionality of art. 580 of the Criminal Code.
Order no. 208 of 2017: analogies with the structural characteristics of all the decisional model variants of incompatibility rulings
The Unvereinbarkeitserklärung is characterized by the fact that it establishes a deadline for legislators in order to confine the presence in the legal system of the incompatible law within a definite time frame.
Now, in its Court Order n. 208 the Constitutional Court states that “it must proceed otherwise, resorting to its own powers of management of the constitutional process,” thus “adjourning the current proceedings and rescheduling further discussion of matters of constitutional legitimacy for the September 24, 2019 hearing”.
The constitutional judge has decided “to proceed otherwise” by adopting a wholly innovative decision-making structure, forestalling the possibility of a decision of inadmissibility based on legislative discretion, as is usually the case when it becomes necessary to prevent encroachment upon the prerogatives of the official legislative body.
The Constitutional Court has thus opted to employ “its own powers of management of the constitutional process” in order to guarantee that the laws that concern the end of life stay within the domain of Parliament, and this – as the constitutional judge put it – “in a spirit of true and dialectic institutional collaboration”.
Order no. 208 of 2017: analogies with the structural characteristics of the “pure” incompatibility ruling
The Constitutional Court has determined that, during the period specified in the order itself, judges shall be unable to apply laws that have been declared unconstitutional.
The decision of “pure incompatibility” also comprises a similar mechanism, namely the so-called Anwendungssperre, that is “blocking” the application of the law that has been declared incompatible.
The logic behind this device rests on the need to prevent situations where applying the law before it has been subjected to legislative intervention may give rise to a gap of protection.
To this end, the Constitutional Court has ruled the inapplicability of the law due to the “peculiar characteristics” of the case brought before it and to the “relevance of the values it involves”.
The problem that has drawn the attention of some scholars concerns the cogency of such a prevision, based as it is on the mere ascertainment of the declaration of unconstitutionality, since Court Order no. 208 is not a declarative ruling of unconstitutionality, but only an order of adjournment of the constitutional process.
Though the Constitutional Court, in relation to the decisional model, expressly refers to the Carter vs. Canada (CSC5) ruling, it seems warranted to characterize the underlying logic of Court Order no. 208 and its structural underpinnings as being very similar to that of the Unvereinbarkeitserklärung, which in this author’s opinion can only be positively evaluated, allowing as it does to combine the ability to declare the constitutional illegitimacy of a rule with the need to respect legislative discretion.
Suggested Citation: Nannerel Fiano, I-CONnect Symposium: The Italian Constitutional Court on Assisted Suicide—Court Order no. 207 of 2018: A Particular “Species” of the German Incompatibility Ruling?, Int’l J. Const. L. Blog, December 8, 2018, at: http://www.iconnectblog.com/2018/12/i-connect-symposium-the-italian-constitutional-court-on-assisted-suicide-court-order-no-207-of-2018-a-particular-species-of-the-german-incompatibility-ruling
 Order no. 207 of 2018.
 Klaus Schlaich & Stefan Korioth, Das Bundesverfassungsgericht, C.H Beck, München, 320 (2018); Marilisa D’Amico, La Corte costituzionale e i fatti: istruttoria ed effetti delle decisioni, La Corte costituzionale e i fatti: istruttoria ed effetti delle decisioni, Editoriale Scientifica, 41 (2018).
 Marco Bignami, Il Caso Cappato alla Corte costituzionale: un’ordinanza ad incostituzionalità differita, Questione Giustizia (2018).
 Order no. 207 of 2018.
 Antonio Ruggeri, Venuto alla luce alla Consulta l’ircocervo costituzionale (a margine della ordinanza n. 2017 del 2018 sul caso Cappato), giurcost.org., 574 (2018).