—Tania Groppi, Università degli Studi di Siena
[Editor’s Note: This is one of our ICONnect columns. For more on our 2024 columnists, see here.]
On July 18th, 2024, the Italian Constitutional Court (hereinafter ICC) ruled (for the fourth time in the last few years) on assisted suicide (decision n° 135/2024). This judgment can be considered an excellent example of the attempt of the ICC to find a way to deal with the inability of the legislator to respond to social demands without taking on a substitute role that would require it to replace the legislator.
Since the first case (Cappato/Dj Fabo case) which challenged the absolute prohibition of assisted suicide, the Court urged Parliament to legislate, considering that “the solution to the question of constitutionality involves the intersection between values of primary importance, the balancing of which presupposes, in a direct and immediate way, choices that the legislator is, first of all, authorized to make” (order n° 207/2018). In that unprecedent decision the ICC suspended, with no specific legal basis, the proceedings and accorded the Parliament one year to enact a comprehensive regulation of the matter.
After the one-year term expired without legislation having been passed, the Court could not help but decide the case, filling the legislative void with an additive judgment (decision n° 242 of 2019). The Court considered that the need to ensure observance of the Constitution must prevail. If a declaration of unconstitutionality risks creating a legislative vacuum that puts fundamental rights at risk, the Constitutional Court must strive to avoid such gaps by establishing, on the basis of the law currently in force, criteria to address them, pending Parliament’s intervention.
The Court maintained that it is unconstitutional to criminalize assisted suicide only in certain limited circumstances. This includes the dependency of the patient – who is afflicted by an incurable illness that gives rise to intolerable physical or psychological suffering, and who is fully capable of taking free and informed decisions – on life-sustaining treatment. At the same time, the Court reiterated the need for the Parliament to legislate. In the Court’s view, unconstitutionality cannot be resolved by simply stating that assisting the suicide of people who meet the above conditions cannot be punished. Indeed, without legislation to regulate the provision of assisted suicide, there could arise a serious risk of abuse being committed against vulnerable persons. Moreover, many aspects could be regulated in several different ways on the basis of discretionary choices – which pertain to the legislator.
Since this decision, almost every year the President of the Court in her/his annual report mentions the necessity to fill the legislative void on the end of life, calling on the legislator “to take action in a highly delicate area that has been subject to extensive public debate, and which demands that diverse cultural viewpoints may be reconciled in the first instance through political forums” (in the words of President Cartabia’s 2019 report).
Later on, the Court reaffirmed the principles underlying the judgment n° 242/2019 in the decision that declared inadmissible the proposed referendum questions on “legal euthanasia” (decision n°50/2022, a summary in English in the 2022 Annual Report). According to the ICC, when the ‘paramount’ good of human life is at stake, the “freedom of self-determination can never unconditionally prevail over the reasons for protecting the same good”. Instead, “a balancing act is always a constitutional requirement to ensure its basic protection”. Therefore, in the Court’s opinion, the legislator can amend or replace the provision criminalizing the killing of a consenting person, but it cannot simply be repealed without compromising the constitutionally required basic level of protection of human life.
Finally, in 2024, given the ongoing lack of legislation governing this matter, the Court was asked by a referring judge (the Florence first instance court) to widen the criteria for accessing assisted suicide as set forth in ruling n°242/2019. In this particular case, the patient who was assisted in committing suicide was affected by multiple sclerosis, a pathology that does not require the dependency of the patient on life-sustaining treatment. He was assisted by some activists who drove him to Switzerland, and for this reason, the activists were incriminated.
According to the referring judge, although in the previous decision the ICC did not give a definition of “life-sustaining treatment”, limiting itself instead to mentioning, as examples, “the ventilation, the artificial hydration and nutrition”, it was clear that the reference was to “sanitary treatment”. Therefore, other forms of life-sustaining assistance could not be considered as included in the conditions listed by the Court. The referring judge considered this exclusion unconstitutional, for violating the equality principle, the freedom of self-determination, the principle of human dignity and articles 8 and 14 of the ECHR.
The public hearing, held on June 19, 2024, attracted exceptional public attention. For the first time, the Court allowed the intervention of third parties not directly affected by the judgment: two women suffering from the same pathology as the patient who committed assisted suicide in the case at stake. Numerous amici curiae briefs were submitted in favor and against the unconstitutionality of the law, benefiting from the new procedural rules governing amici, which were adopted by the Court in 2020.
In decision n°135/2024 (authored by two rapporteur-judges, which rarely happens: the constitutional law professor Franco Modugno, who authored the 2018 and 2019 decisions, and the professor of criminal law Francesco Viganò), the ICC took a cautious approach to this delicate issue, rejecting all the constitutional questions raised by the referring judge. Nevertheless, while reiterating many of the arguments already presented in the previous judgment, the Court (1) added some new arguments to reinforce the rationales behind its decision. Additionally, (2) the ICC reinterpreted the circumstances under which the assisted suicide is admitted, and especially the meaning of life-sustaining treatment, extending them well beyond the previous decision.
(1) In the rich and articulated reasoning of the Court, it is worth mentioning the approach of the ICC to the principle of self-determination, which may be of special interest to an international audience.
In an unusual openness towards comparative law (para. 7.2) the Court discussed several recent judgments issued by constitutional courts worldwide, resulting in recognizing a fundamental right to die based on the principle of self-determination (German Federal Constitutional Court, judgment 26 February 2020, 2 BvR 2347/15, 2 BvR 2527/16, 2 BvR 2354/16, 2 BvR 1593/16, 2 BvR 1261/16, 2 BvR 651/16; Austrian Constitutional Court, judgment 11 December 2020, G 139/2019-71; Spanish Constitutional Court, judgment 22 March 2023, 4057/2021; Constitutional Court of Colombia, judgment 20 March 1997, C-239/97; Supreme Court of Canada, judgment 6 February 2015, Carter vs Canada; Constitutional Court of Ecuador, judgment 5 February 2024, 67-23-IN/24).
However, the ICC explicitly diverged from those “foreign precedents”, by stating that “This Court however – similarly to what was decided by the ECtHR ( Dániel Karsai v. Hungary and, previously, Pretty v. United Kingdom) and by the Supreme Court of the United Kingdom (judgment of 25 June 2014, Nicklinson and others, KSC 38) – believes that a different result must be reached”. This is a rare example of “a contrario” use of foreign precedents, according to the Groppi-Ponthoreau classification of the use of foreign cases in constitutional adjudication.
According to the ICC:
It can, of course, be agreed with the referring judge – and with the interveners in the present judgment – that the decision on when and how to end one’s existence can be considered included among the most significant ones in the life of an individual. However, if it is true that every choice to legalize assisted suicide or euthanasia practices widens the spaces recognized for the person’s autonomy in freely deciding on their own destiny, it creates – at the same time – risks that the legal system has the duty to avoid, in fulfillment of the duty to protect human life which also derives from art. 2 Constitution. The risks in question do not only concern the possibility of openly abusive conduct being carried out by third parties to the detriment of the individual person who makes the choice to end their existence, but also concern – as has been observed (Supreme Court of the United Kingdom, Nicklinson and others, paragraph 228) – the possibility that, in the presence of permissive legislation not accompanied by the necessary substantial and procedural guarantees, ‘indirect social pressure’ is created on other sick or simply elderly and lonely people, who could convince themselves of having now become a burden for their family members and for the entire society, and thus deciding to step aside prematurely.
(2) If those arguments justified the rejection of the constitutional questions, the most effective part of the decision aimed at reinterpreting the notion of “life-sustaining treatment”, as one of the circumstances that must exist for the assisted suicide to be legally possible, according to the prior judgment n°242/2019. In that case, the ICC found inspiration from legislation on refusing health treatments that are necessary for the patient’s survival and on guaranteeing the administration of appropriate painkilling medication and palliative care (Articles 1 and 2 of Law n° 219 of 2017). In the 2024 decision (para.8), the Court took a step forward, considering that “life-sustaining treatment”, which the patient has the right to refuse, includes also
those procedures which are normally carried out by healthcare personnel […] but which could be learned from family members or caregivers who take charge of the patient’s care. To the extent that such procedures – such as, to take up some of the examples discussed during the public hearing, the manual evacuation of the patient’s bowel, the insertion of urinary catheters or the aspiration of mucus from the bronchial tracts – prove to be concretely necessary to ensure the performance of the patient’s vital functions, to the point that their omission or interruption would predictably lead to the patient’s death in a short period of time, they must certainly be considered as life support treatments, for purposes of the application of the principles established by the judgment n° 242 of 2019. All these procedures – just like artificial hydration, nutrition or ventilation, in their various ways of execution – can be legitimately refused by the patient, who already has, in this way, the right to expose himself to a proximate risk of death, as a consequence of this refusal. In this case, the patient finds himself in the situation contemplated by sentence n° 242 of 2019, making it therefore unreasonable for the criminally sanctioned ban on assisting suicide against him to continue to operate.
The Court also considered that the right to refuse those treatments refers not only to the right to interrupt them, but also to the right to refuse ab origine their activation (para. 7.2)
In conclusion, how to evaluate this new judicial step in the never-ending saga of the decriminalization of assisted suicide in Italy? Was the Constitutional Court too cautious or too activist in dealing with legislative inertia?
This is an old question. In the Italian political context, severe fragmentation of the political parties and increasing polarization has made it very hard to reach political agreements, even more so on delicate ethical issues. Against this backdrop, the attitude of the Court has been the object of different evaluations by scholars. It has been said that the difficulty of taking legislative action in a fragmented and polarized assembly “has acted as a strong incentive for the Constitutional Court to take on a substitute role” (L. Rullo, ‘The Italian Constitutional Court’, in K. Pócza (ed) Constitutional Review in Western Europe, Routledge 2024, p. 203). Other authors have maintained that the ICC developed its own original approach to the legislator (‘Italian-style’), based on its “relational approach to constitutional adjudication”, (V. Barsotti, P.G. Carozza, M. Cartabia and A. Simoncini, Italian Constitutional Justice in Global Context, OUP, 2015).
As for assisted suicide, in decision n°135/2024 the Court has maintained the attitude developed since 2018, aiming to avoid playing a substitute legislative role while giving the Parliament some additional guidance, according to a ‘relational’ and collaborative perspective. Moreover, by re-interpreting the notion of “life-sustaining treatment”, the Court gives new interpretative guidelines to the physicians, to the National Health system, and to the ordinary judges. In doing so, the attitude of the ICC can be considered as an excellent example of what was defined by W. J Nardini, in 1999, as “passive activism”: in order for the ICC to make the law constitutional, it chooses not to declare the substantive unconstitutionality of the law under review; rather, it creatively interprets that law. The Court, while displaying a “passive”, respectful attitude towards the legislator, displays an interpretative “activism”, by calling upon the “open community of constitutional interpreters” to work together to effectively protect the fundamental values involved in the case.
Suggested citation: Tania Groppi, The Cautious Attitude of the Italian Constitutional Court on Assisted Suicide: An Example of “Passive Activism”? Int’l J. Const. L. Blog, Jul. 24, 2024, at: http://www.iconnectblog.com/the-cautious-attitude-of-the-italian-constitutional-court-on-assisted-suicide-an-example-of-passive-activism/
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