1. The Italian Constitutional Court delivered, on the 16th November 2018, the very first decision in its history on the controversial issue of assisted suicide of patients suffering from incurable diseases (see also, the post on this decision by U. Adamo).

2. The case originated from a criminal trial against a politician and civil rights activist, Mr Marco Cappato, who had helped a young man, Mr Fabiano Antoniani, to put an end to his own life.

Following a car accident in 2014, Fabiano had remained tetraplegic and irreversibly blind due to cortical damage. He was artificially fed through parenteral nutrition, and his breathing was partially supported by means of a ventilator. He was suffering from frequent muscular spasms, causing him considerable pain and suffering, which could not be eliminated through palliative treatments. On the other hand, he had retained a full mental capacity, being able to communicate with the world through the help of a voice synthesizer.

About two years after the accident, he had shared with his fiancée his wish to put an end to his life. As a reaction against the attempts made both by his mother and fiancée to dissuade him, he called a “hunger and speech strike”, refusing to be fed and communicate for several days.

In May 2016 he first contacted the Swiss association Dignitas, whose core mission is to help people exercise their “right to die with dignity”. In the same period, he got to know Mr Cappato, who declared himself available to accompany him to a Dignitas facility, in Switzerland.

Fabiano made then an application to the association, which allowed his request.

Eventually, in February 2017 Mr Cappato drove him to the Swiss facility. In the car sat also his mother, as well as his fiancée and her mother.

Once arrived in Switzerland, Fabiano was examined by doctors, who gave their green light to the procedure, which took place on the 27^th February of that year. Through a device operated by the patient’s tongue, he was able to inject into his veins a lethal cocktail of barbiturates, which caused him a quick – and apparently painless – death.

Back in Italy, Mr Cappato denounced himself to the police.

After a relatively short investigation, the public prosecutor in Milan asked the judge in charge over the preliminary investigation for a non lieu. The judge, however, rejected the request, and ordered a criminal trial to be instituted for the offence of aiding and abetting suicide, provided for by Article 580 of the Italian criminal code (ICC).

In February 2018 the criminal court in charge of Mr Cappato’s case – having considered that the mere fact of accompanying Fabiano to the Swiss facility constitutes itself the offence described in Artcile 580 ICC – decided to halt the proceeding, and raise the two following preliminary questions to the Constitutional Court:

(a) is Article 580 ICC is compatible with the patient’s fundamental rights (including the right to private life recognised by Article 8 ECHR, as interpreted by the ECtHR), in as far as it encompasses the conduct of merely “helping” another person to commit suicide, even if the latter has spontaneously, and in his or her full mental capacity, decided to take his or her own life? and, in the affirmative,

(b) is the harsh penalty (imprisonment from 5 to 12 years) provided for by Article 580 ICC for the instance of mere assistance to the suicide of a fully determined person is itself compatible with several Constitutional provisions?

3. The Constitutional Court, by its decision of 16^th November 2018, held that Article 580 ICC, in as far as it criminalises mere “assistance” to suicide, does not violate vis-à-vis the Italian Constitution.

Firstly, the Court rules out any violation of the patient’s right to life, recognised by Article 2 of the Italian Constitution, as well as by Article 2 ECHR. From these provisions stems, according to the Court, an obligation to protect the life of every individual, rather than an obligation to grant the individual a right to obtain, from the State or third parties, any help to carry out suicide. The conclusion is consistent with the Strasbourg case law, which already in the seminal case Pretty vs. UK had held that a “right to die with dignity” is not implied in the right to life.

Nor can the right to personal autonomy, or self-determination (allegedly based on the protection of the personal liberty afforded by Article 13 of the Constitution), be invoked as a ground to consider Article 580 ICC unconstitutional. The Court underlines that the criminal provision at stake – which also exists in many other legal orders – is functional to the legitimate aim of protecting life, especially the lives of the weak and vulnerable, which the law wants to be protected against the irreversible consequences of suicidal decisions, as well as against any kind of undue interferences by third parties. The prohibition of any assistance to a suicide is then crucial, according to the Court, in respect to persons suffering from physical illness, psychological distress, or simply from age and loneliness, who could be tempted to make such an extreme decision just out of lack of sufficient support by relatives or the society as a whole. Therefore, the legislator cannot be considered to be prevented – just «for the sake of the protection of an abstract concept of personal autonomy, that would not take into consideration the concrete conditions of isolation and abandonment in which decisions to die are most frequently made» – from issuing a general ban on assisting suicide,

Article 580 ICC is not incompatible, either, with the right to private life recognised by Article 8 ECHR (to which Article 117 of the Italian Constitution, stating that national legislation shall respect the international obligations binding on the State, implicitly refers). Quoting the Strasbourg case law on the issue (Pretty vs. UK, Haas vs. Switzerland, Koch vs. Germany and Gross vs. Switzerland), the Constitutional Court points out that the ECtHR jurisprudence has always granted States parties a wide margin of appreciation in balancing the need to protect human life with the protection of the right to private life, recognising – in particular – the compelling force of the preoccupation to protect the lives of the weak and vulnerable as a legitimate rationale of criminal provisions such as the one at stake in this case.

4. However, according to the Constitutional Court, there are situations – that were probably not imaginable at the time when the current ICC was enacted – in which the strict enforcement of Article 580 ICC would, indeed, run contrary to the constitutional principles.

The Court refers here to those instances where the individual wishing to put an end to his or her life is – just as it was the case for Fabiano – (i) a patient suffering from an incurable disease (ii) that causes him or her severe and subjectively intolerable pain and distress, and is (iii) kept alive by life-sustaining treatments, but (iv) retains full mental capacity.

In such cases, the patient is already allowed, under the legislation in force, to put an end to his or her life by refusing the life sustaining treatments, and waiting for the death which will inevitably follow the withdrawal of such treatments in a condition of deep sedation induced by the doctor. This option is, namely, granted to the patient by the recently enacted law No 219/2017, which explicitly recognises the patient’s fundamental right to refuse any medical treatment (including artificial feeding and hydration, according to the explicit provision of Article 1 (5) of the law) that case law had already derived from Article 32 (2) of the Constitution, and – ad the same time – grants him or her the right, based on his or her consent, to obtain a continuous deep sedation by a doctor, at the patient’s request, in the “imminence of death” (see Article 2 (2) of law No 219).

The current state of the Italian law, instead, does not allow patients to have a treatment administered aiming at directly causing his or her death. As a result, patients depending on life-sustaining treatments who wish to put an end to their suffering are de facto compelled to undergo the much more prolonged dying process, resulting from the withdrawal of those treatments, especially of artificial hydration and nutrition.

This result could turn out, according to the Constitutional Court, to be inconsistent with the patient’s own concept of dignity in dying, and could clash with the understandable patient’s desire to protect his or her beloved ones from the distress and suffering caused by the assistance to the progressive deterioration of the patient’s vital functions during his or her dying process.

On the other hand, whilst it is undeniable that a patient in such conditions is a particularly vulnerable person, once he or she is considered by the law capable of making an autonomous decision as to the withdrawal of life-sustaining treatments – and as to the death that will inevitably follow from that decision –, there is no reason more to protect him or her against a decision to die in a manner that he or she considers more dignified.

The Court concludes, therefore, that the current state of law is not in line with the principles of equality of treatment in respect of the enjoyment of the right to refuse a medical treatment (Articles 2, 13 and 32 (2) in conjunction with Article 3 of the Italian Constitution), and – ultimately – with the overarching principle of respect for human dignity.

5. From this conclusion does not follow, however, that the criminal provision at stake should immediately be declared unconstitutional in parte qua.

Such a declaration, according to the Court, would create a legal vacuum, where highly vulnerable persons would not be adequately protected against potential abuses.

A legislative framework establishing in detail the conditions under which a patient can be lawfully helped to put an end to his or her life, according to the principles set above, is therefore necessary in order to prevent such abuses; to ensure that such decisions are made under medical control, within the context of a relationship based on mutual trust between the patient and the doctor; and, last but not least, to avoid the risk of a premature renounce by the patient to palliative care, that could allow him or her to live a dignified life even in a context of an incurable illness.

Therefore, the Court decided to adjourn the case to a new hearing, scheduled on 24 September 2019, in order to give the Parliament an opportunity to consider the adoption of a comprehensive legislation in line with the principles set forth in the decision.

The Court itself recognises to have drawn inspiration from the judgments of both the UK Supreme Court in Nicklinson, 2014 – where the majority of the justices decided not to issue, for the moment, a declaration of incompatibility of the criminal provision on assisted suicide with the ECHR in respect of the situation of patients in conditions similar to those affecting Fabiano, precisely in order to give the Parliament the opportunity to legislate on the matter – and the Canadian Supreme Court in Carter vs. Canada, 2015. The latter judgment immediately declared void the criminal provisions concerning assisted suicide, insofar as they prohibited physician-assisted death for a competent adult person who clearly consents to the termination of life, and has a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition; however, the effects of the decision were suspended for 12 months, with the very similar aim of giving the Parliament «the opportunity to craft an appropriate remedy», since «complex regulatory regimes [such as those needed to ensure the patient’s rights in those extreme cases] are better created by Parliament than by the courts» (at para. 125).

In the end, the solution adopted by the Italian Constitutional Court – which has never been recognised a power to suspend the effects of its own judgment, or to declare the incompatibility of a particular provision with the Constitution without annulling at the same time the provision, as the German Bundesverfassungericht often does – stands midway between the Canadian and the UK precedents, by unequivocally recognising that the existing criminal legislation is not in line with the patient’s fundamental rights, while refraining from directly declaring void that legislation. 

The Italian Court has, thereby, added a new chapter in the comparative scenario of judicial decisions on end-of-life issues, which will for sure give rise to animated discussions, in Italy and abroad.