[Editor’s Note: This is Part I of our I-CONnect symposium on the Italian Constitutional Court’s recent judgment on assisted suicide. The Introduction is available here.]
—Benedetta Vimercati, Research Fellow in Constitutional Law, University of Milan
As soon as the press release announcing the Italian Constitutional Court’s decision on assisted suicide had been made available, certain spur of the moment comments arose depicting the Court as a modern Pontius Pilate. The latter washed his hands of the matter, leaving the verdict to the crowd. The Italian Constitutional Court essentially set itself up to be in the same position, choosing to not decide placing the decision in the hands of the Parliament’s Chambers.
But, is this unquestionably true?
Undoubtedly, most scholars never would have expected this solution, which is unusual both substantively and procedurally. This outcome is probably the result of a disagreement within the constitutional judges. But we can only suppose this disagreement due to the fact that the Italian constitutional system asks for the unity of the judicial decision, the collegiality and unity of the panel (not providing, for example, for dissenting opinions).
Unraveling the knot of this highly sensitive issue, the Court delivered a verdict which provides food for thought and in particular two points regarding the content of the decision need to be looked at closely.
Firstly, the Italian constitutional judges essentially ruled the blanket ban on assisted suicide under the Italian Criminal Code as unconstitutional, particularly in the case of patients for whom the assistance of third parties in ending their life can represent the only way out with respect to their personal concept of dignity, to artificial maintenance of a life no longer deemed worth living and that the patient has the right to refuse. In this perspective, the legal reasoning of the Court is underpinned by some constitutional provisions (art. 2, 3, 13, 32 Const.), two of which (art. 3, equality principle and art. 32, right to health and to be protected against forced medical treatments) were not explicitly mentioned as constitutional parameters in the request submitted by the judges of Milan to the Constitutional Court. Despite this lack and according to the fact that they were mentioned in the order even if not within the ruling, the constitutional judges used these provisions to their advantage stating that the absolute prohibition of assisted suicide, therefore, limits the freedom of self-determination in patients, in breach of the principle of human dignity as well as the principles of reasonableness and equality.
The Court embraced a subjective-individualistic approach, inferring from the self-determination principle (as a general right to liberty) a fundamental and constitutional right to die under certain conditions. But can this interpretation be considered an unavoidable outcome imposed by the Constitution? Or is it rather a choice in the discretion of the Parliament (art. 25 Const., principle of legality in criminal law)?
The Constitutional Court did not heed such considerations on the relationship between the Constitutional Court and the Legislator. With respect to this relationship, the Constitutional Court seems to be cautiously taking a step back in this case. Thanks to a comparative approach by referring to the judgments delivered by the UK Supreme Court and the Canadian Supreme Court respectively in Carter v Canada and Nicklinson v Ministry of Justice, the Court displayed its intent to establish mechanisms for collaboration and dialogue between the Constitutional Court and the Parliament. So, according to the Court, it becomes the responsibility of the Parliament determine the balance between many relevant and fundamental rights/interests.
Yet, the subject matter is too sensitive and important to allow for an extended legal vacuum in the interim, since the Parliament may remain unresponsive for a period of up to several years. This is a Parliament which, it is important to remember, has just recently considered the issue. After many years, in 2017 the Italian Chambers passed a bill on informed consent and living will that did not recognize any form of assisted suicide as legitimate.
So, the Court exhorted the Parliament to pass a new bill that will introduce within the Italian legal system some forms of assisted suicide and euthanasia. Along with this request, the Italian Constitutional Court included a few recommendations. Among them, some appear to be more rigorous, when the Court lists the conditions which give legitimacy to assisted suicide: “a) the person must be affected by an irreversible pathology; b) the pathology must be source of physical or psychological suffering, which is absolutely intolerable; c) he/she is kept alive through life-sustaining treatments; d) the patient must be able to make free and conscious decisions”.
Other suggestions from the Court are less compelling and are going to be materially designed according to the legislator’s discretion: the verification activities aimed at ascertaining the existence of the conditions necessary for a person to request assisted suicide; the discipline of the related “medicalized process”; the potential exclusivity conceded to the National Healthcare System in order to administer the drug and the inclusion of a provision allowing healthcare professionals to exercise conscientious objection.
Moreover, the Constitutional Court pointed to the regulatory framework where the legislative interpolation should take place, recommending not a legislative amendment of the Criminal Code but an integration of the recent law on informed consent. As a consequence, the recognition of assisted suicide will be confined to within the conditions prescribed by the Court and it will be limited thanks to its legislative position itself.
The Constitutional Court’s attitude depends on the willingness, on the part of the constitutional judges, to be open to assisted suicide but, at the same time, on the prudence against an excessive openness, particularly in the interest of protecting vulnerable people from abuse.
On a final note, the Constitutional Court not only invited the Legislator to intervene but, by postponing the decision and – as a consequence – suspending the main trial before the Court of Milan, gave Parliament one year to legislate new rules according to its ruling.
From this ruling, it appears that the Constitutional Court cannot be described as a modern Pontius Pilate because the Court in fact chose to decide. It didn’t determine all the precise details of the constitutional scheme of assisted suicide but it released specific information for Parliament to follow in order to prevent a forthcoming declaration of unconstitutionality. But, in a sense, the Italian Constitutional Court – the guardian of the Constitution (watchdog of the Constitution) – appears, in this instance, to take over the role of legal guardian of the Parliament. Can this be considered a mechanism of collaboration between Constitutional Court and Parliament or did the Court, by pointing out to what extent assisted suicide should be criminalized or not, go too far in its judgment?
And what about in the absence of legislative action? Will the Court grant the Parliament an extension to pass the assisted suicide legislation? If the Court will reopen the judgment, what about the verdict? Will the Court declare the unconstitutionality of the assisted suicide ban tout court or will it itself rewrite the law? And what will happen if the Legislator balances the constitutional interests tipping the balance towards the right to life to the detriment of the right to self-determination or, in the opposite case, the Legislator enacts a law that broadens the conditions set forth in the Constitutional Court’s decision? To what extent does the Constitutional Court’s ruling bind the content of a forthcoming piece of legislation?
There are still many cards left to play in the player’s hands.
On the one hand, Italian Parliament is going through a complex phase and the majority is divided on this controversial issue. This Parliament has been challenged on a matter with detailed regulation that will have capital implications (we need only consider the consequences on assisted suicide limits resulting from a broad conception of health, considered not only in a physical sense but also in a psychological sense).
On the other hand, the Constitutional Court has already played its card and opened a significant door through a decision which is able – thanks to the verdict form and its content – to have important effects on the whole Italian constitutional system.
Suggested Citation: Benedetta Vimercati, I-CONnect Symposium: The Italian Constitutional Court on Assisted Suicide—The Italian Constitutional Court and the Recent Decision on Assisted Suicide: The Guardian of the Constitution or the “Guardian” of the Parliament?, Int’l J. Const. L. Blog, December 6, 2018, at: http://www.iconnectblog.com/2018/12/i-connect-symposium-the-italian-constitutional-court-on-assisted-suicide-the-italian-constitutional-court-and-the-recent-decision-on-assisted-suicide-the-guardian-of-the-constitution