[Editor’s Note: I-CONnect is pleased to feature a special symposium on the Italian Constitutional Court’s recent judgment on assisted suicide. The symposium will feature four parts, including this Introduction. We are very grateful to Antonia Baraggia for convening this symposium for the benefit of the I-CONnect community.]
—Antonia Baraggia, Assistant Professor of Comparative Constitutional law, University of Milan
End of life decisions push legal systems and the institutional actors involved in ruling on its legality into a grey area where the foundations of constitutional order – the right to life on one side and liberty (or self-determination) on the other – radically clash. This is what the case law on assisted suicide in Canada, the UK, France, Colombia and the ECHR – just to mention the most famous jurisdictions called to rule on the topic – has shown. And this what we are witnessing now in Italy where recently the Constitutional Court (ICC) was pushed to cross the threshold of the controversial issue of assisted suicide: indeed, on October 24 2018, the ICC ruled on the constitutionality of art. 580 of the Criminal Code, which considers “assisted suicide” a criminal offence punishable with from 5 to 10 years of prison as well as the “instigation” to suicide.
The case brought to the ICC dealt with the dramatic condition of F.A., a young man, who after a car accident was left by permanently blind, needing artificial support for nutrition and respiration and suffering from convulsions and pains. After a failed stem cell treatment in India, his condition was deemed irreversible.
F.A. perceived his condition as unbearable, a violation of his human dignity. He refused the “palliative care” program proposed to him by his physicians on the grounds that taking away his artificial nutritional and respirational aids would have cause a slow and painful death. He asked for assisted suicide: a practice which is, however, forbidden in Italy. Undeterred, he traveled to Switzerland, where assisted suicide is legal and was accompanied by M.C., an Italian politician and activist who campaigned for the legalization of assisted suicide. In Switzerland F.A. was willfully administered the lethal drugs after pushing a button with his mouth and died in just a few hours.
M.C. returned to Italy and turned himself in to the public authority to be prosecuted according to art. 580 of the Criminal Code, for having actively helped F.A. in his suicide. The judges of the Assise Court in Milan, called to rule on the criminal offence committed by M.C., suspended the trial and issued a request to the ICC in order to assess the constitutionality of art. 580 of the criminal code. The judge in Milan argued that M.C.’s conduct can be considered as a case of assisted suicide in light of art. 580 CC, since he actively set the conditions necessary for the realization of the suicide, even though it had no impact F.A.’s intentions which had already been formed and publicly expressed. The ordinary judge doubted, however, that the criminal punishment for assisted suicide was compatible with art. 2 and 13 of the Constitution: he argued indeed that assisted suicide, when it is a conduct aimed at the realization of the freely expressed will of the individual – independently from any assessment on the personal condition and reasons for such a deliberation – should be read in light of the protection accorded to person ex art 2 Const. and to the protection of individual liberty ex art. 13 Const, as a realization of the constitutional liberties of the individual. The ordinary judge, in other words, argued that the criminal regime of assisted suicide was unconstitutional, since it infringed upon the right to self-determination contained in art. 2 and art. 13 of the Italian constitution.
It is in this context that the Court was called to rule on the criminal law provision. The ICC decision can be defined a case law which runs on several diving lines: the one between life and liberty, between self-determination and the protection of the most vulnerable, between the refusal of medical treatment and euthanasia, and, under an institutional point of view, the line between the role of the judiciary and the legislative power.
The ICC dealing with the petitum of the judge a quo, in its decision (Ord. no. 207/2018), seems to reject the argument of the ordinary judge, and in particular its strong reference to right of self-determination. The ICC, instead, seems to move on the thin line between the value accorded to the right to life (and the duty of the state to protect it from third party interference, and especially for the most vulnerable) and the ever pressing recognition of the right to self-determination in the most profound and unfathomable aspects of life – such as end of life decisions – trying to draw a balance among them. The Court emphasizes, on one hand, the rationale of the punishment of assisted suicide (the duty of the state to protect the most vulnerable in condition of need and distress), concluding that the criminal provision on assisted suicide per se “cannot be considered incompatible with the Constitution”. However, on the other hand, the Court stresses that there are certain conditions – not foreseeable at the time of the introduction of the criminal provision because strictly linked to the progress of science and medicine – in which the intervention of a third party in end of life procedure is legitimate and even necessary: in particular, when a) the patient is affected by an irreversible pathology, b) one which causes physical and psychological suffering subjectively perceived as unbearable; c) when the patient is keep alive by artificial means; d) but has the capacity to make decisions freely and consciously.
The Court argues that in such (detailed) circumstances, assisted suicide helps the patient excise his own right to reject medical treatment – a constitutional right protected by art. 32 Const. As Davide Paris will argue in this Symposium, the legal reasoning of order no. 207/2018 “crosses the border between refusal of treatment and euthanasia that the legislature was unwilling to cross”.
After this reasoning one could have expected a declaration of unconstitutionality of the criminal provision at stake, where it does not provide the exemption to the criminal prosecution of assisted suicide pointed out by the Court. Surprisingly, however, the Court crossed the border of the procedural rules of the constitutional process, introducing a new type of decision. Never before had the Court issued a decision of deferment of his judgment of unconstitutionality after the intervention of the legislature, upon which the Court itself passed a duty to enact a new regime for assisted suicide by a fixed deadline. Usually, in similar cases, the Court issues a decision of inadmissibility of the question of constitutionality, addressing the legislator with a kind of “warning” in order to correct the constitutional violation. The ICC, however, considered the case of assisted suicide as somehow a unique and peculiar case: declaring the inadmissibility of the question and invoking the intervention of the legislator would have had the effect to keep in place (and therefore applicable in new concrete cases) the criminalization of assisted suicide – which is, as it is, considered unconstitutional – for an indefinite period of time, waiting for the possible intervention of the legislator or, in case of parliamentary inertia, for a new case brought to the Court. In front of this possible scenario of uncertainty, the Court decided to put upon the Parliament a more stringent constraint, given him a fixed deadline to comply with the Court’s assessment.
As Nannerel Fiano and Davide Paris will highlight in their contribution to this Symposium, the technique is similar to the one extensively deployed by the German Bundesverfassungsgericht in its incompatibility rulings (Unvereinbarkeitserklärung). However, its “importation” in the constitutional procedure of the ICC – appealing on “its own powers for handling the constitutional procedure” – is not exempted from criticism and it will certainly pose new challenges to the Italian constitutional procedure, currently already under a significant process of transformation, especially after the “electoral law saga” of decision no. 1/2014 and following.
Last but not least, the ICC’s “deferred declaration of unconstitutionality” will pose new challenges on the relationship between the Court and the legislator, which will be addressed by Benedetta Vimercati in this Symposium.
Indeed, the invitation to the legislator to enact a new discipline for assisted suicide is not a general one: as we have pointed out, the Court has already identified the unconstitutional aspects of the provision of the criminal law to be addressed by the legislative intervention and the Court suggests even the way to be followed by the legislature: amend the provisions of law no. 219/2017 on informed consent.
How should we consider such intervention on the part the Court? Is it the judiciary trumping parliamentary discretion and influencing the parliamentary determination beyond its prerogatives? Is this a case of “judicial” activism? Or is it a case of mutual cooperation between the Court and the legislator in the name of the role of the latter in setting the balance between the conflicting interests at stake? Moreover, other issues will become relevant in the near future: as Benedetta Vimercati highlights, what if the legislature decide to not intervene? (in the end, also a non-intervention of the legislator might be considered an exercise of legislative discretion); or what if the legislature – in the exercise of its discretionary prerogatives – will intervene in contrast with the ICC “guidelines”, with a legislation either more or less strict than the standard set? Or, again, what if the Court, given the inertia of the legislator, proceeds to declare the unconstitutionality of the criminal law and after that the legislature intervenes with a new legislation providing a different balance of interests and rights?
Given the relevant issues raised up by the ICC’s decision, this Symposium will featured three contributions of Italian legal scholars addressing the most relevant and critical aspects of the decision, here only sketched.
We are grateful to Benedetta Vimercati (University of Milan), Davide Paris (Max Plank Institute for Comparative Public Law and International Law) and Nannerel Fiano (University of Milan), for their contributions which will be published in the days ahead.
Suggested Citation: Antonia Baraggia, Introduction to I-CONnect Symposium–The Italian Constitutional Court on Assisted Suicide, Int’l J. Const. L. Blog, December 5, 2018, at: http://www.iconnectblog.com/2018/12/introduction-to-i-connect-symposium-the-italian-constitutional-court-on-assisted-suicide