On 25 September 2019, the Italian Constitutional Court (ICC) has made clear that assisted suicide is not punishable under specific conditions. The judgment came one year after the ICC had ordered the Italian Parliament to legislate on the matter \u2013 which it did not do. The entire story is indicative of the inability of Parliaments to respond to social demands as well as the current trend of high courts to act as shepherds of parliaments rather than as guardians of the constitution

Faraguna, Pietro

English

On 25 September 2019, the Italian Constitutional Court (ICC) has made clear that assisted suicide is not punishable under specific conditions. The judgment came one year after the ICC had ordered the Italian Parliament to legislate on the matter – which it did not do. The entire story is indicative of the inability of Parliaments to respond to social demands as well as the current trend of high courts to act as shepherds of parliaments rather than as guardians of the constitution

Pietro Faraguna

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Pietro Faraguna Do 26 Sep2019Do 26 Sep2019“Constitutional Paternalism” and the Inability to Legislateverfassungsblog.de/constitutional-paternalism-and-the-inability-to-legislate/On 25 September 2019, the Italian Constitutional Court (ICC) has made clear thatassisted suicide is not punishable under specific conditions. The judgment came oneyear after the ICC had ordered the Italian Parliament to legislate on the matter – which itdid not do. The entire story is indicative of the inability of Parliaments to respond tosocial demands as well as the current trend of high courts to act as shepherds ofparliaments rather than as guardians of the constitution.A case of strategic litigationThe constitutional question was raised by the case of Fabiano Antoniani, known as DJFabo, who was left quadriplegic and blind after a car accident in 2014. His physicalconditions were extremely severe and deemed irreversible:  he needed artificial supportfor nutrition and respiration and suffered from terrible pain and frequent convulsionsand muscle spasms. His case and situation generated an intense public debate, reachingits apex when he decided to get assisted suicide in Switzerland where, unlike in Italy, itwas legal under certain conditions. The politician Marco Cappato, a member of theradical party, drove him to a Swiss clinic where the assisted suicide was carried out andturned himself in to the police after he had returned to Italy. His self-reporting wasaimed at opening a case for strategic litigation, with the objective of challenging theconstitutionality of the criminal implication of his help to carry out the assisted suicide.His plan of strategic litigation succeeded, as Cappato was charged with the crimepunishable under article 580 of the criminal code (“Helping someone to commit suicide,or to convince someone to commit suicide, is punishable with a sentence between 5 and12 years”) before a Court in Milan submitted a question of constitutionality to the ICC.This provision was challenged on the ground of its constitutionality by the ordinaryjudge, who argued that this criminal regime violated the right to self-determinationcontained in art. 2 and art. 13 of the Italian constitution.A decision without a legal basisIn an unprecedented decision, and with no specific legal basis to adopt a decisionalarrangement that resembles the German BVerfG’s Unvereinbarkeitserklärung, the ICCdecided in October 2018 to suspend the proceedings and to accord the Parliament oneyear to provide for a much-needed comprehensive regulation of the matter. The Court,in a sort of interlocutory order, stated that “the current legal framework concerning theend of life deprives specific situations … of adequate protection” and gave theParliament a one-year deadline to fill this legislative void. The ICC not only pushed theParliament to legislate, but also provided some specific guidelines. In fact, in its order,1/4the ICC provided a rather detailed framework of factual conditions for the Parliament toconsider in the desired intervention. In particular, the Court referred to a “scenario inwhich the assisted persons are (a) affected by an illness that is incurable and (b) causesphysical or psychological suffering, which they find absolutely intolerable, and who are(c) kept alive by means of life support treatments, but remain (d) capable of making freeand informed decisions”. In these cases, according to the Court, criminalizing assistedsuicide had to be considered incompatible with the Constitution, also considering that insimilar scenarios existing legislation might already allow patients to decide that deathtake its course. Under the recently approved Law no. 219 of 22 December 2017(Provisions on informed consent and advance medical directives) patients may requestthe interruption of the ongoing life-sustaining treatment and concurrent subjection toheavy and constant sedation, with binding effect on third parties. In the case at hand,however, the patient rejected the interruption of life-sustaining treatment withsimultaneous administration of heavy sedation because this solution would have led toeven more unbearable and durable pain. Indeed, since the patient did not depend totallyon a respirator, death would have occurred only after a considerable amount of time,quantifiable in days. In the view of the patient, this would have been an undignified wayto end his life and his loved ones would have had to share in it on the emotional level.However, in its order, the Court decided not to straightforward declare theunconstitutionality, but to leave the case pending for twelve months to offer theParliament the possibility to intervene with a comprehensive regulation. In the Court’sview, in fact, a straightforward declaration of unconstitutionality would have left anethically and socially sensitive area entirely unregulated and possibly open to abuse,such as amatorial and non-medical assistance to suicide and similar abuses. At the sametime, the Court made clear that in the absence of legislative action, it would reconvene inSeptember 2019 to decide on the pending case. Legislative inertia, however, is exactlywhat happened, with no significant steps having been put in place within the Parliamentin the last year. Finally, the ICC found (or perhaps put) itself in the position of beingforced to take a decision on the merits and it did so yesterday.“Waiting for the Parliament, the Court decides”The full-text of yesterday’s judgment will be published in approximately one month butthe published press release makes clear that it should not always be punishable to helpsomeone “under intolerable physical or psychological suffering” to commit suicide.Anyone who “facilitates the suicidal intention … of a patient kept alive by life-supporttreatments and suffering from an irreversible pathology should not be punished undercertain conditions”. The patient’s condition must be “causing physical and psychologicalsuffering that he or she considers intolerable,” and the patient should be “capable ofmaking free and informed decisions”, the press release reported. Moreover, the Courtconsidered a new comprehensive regulation by the Parliament indispensable andsubjected the non-punishability of assisted suicide to detailed conditions extracted fromthe existing legislation.2/4The matter of end-of-life choices always generates harshly controversial debates, andthe decision of the ICC will certainly provoke strong reactions on both sides of those whosupport the introduction of a legislative framework leaving more space for self-determination and those who – on the contrary – support an interpretation of the rightto life as all-encompassing. However, the precise consequences of the ICC’s decision willbe clear only after the publication of the full text of the court’s decision and reasoning. Infact, the press release suggests that the legal reasoning of the Court will be rathercomplex and that the non-punishability of assisted suicide will be subject to articulatedconditions.Finally, it is far from clear who will be considered winner and loser in these legalproceedings at the end of the day – if these categories even apply. But there is onecertain loser, namely the Italian Parliament. In fact, the Parliament was first pushed intothe fray by a rather paternalistic move by the Constitutional Court. The latter not onlydecided that the Parliament should have taken a decision on the matter, but also drewquite detailed specifications for the needed regulation. After one year of inertia, theConstitutional Court of Italy went one step further by striking down the existing law andonce again called on the Parliament: The ICC’s press release is tellingly titled: “Waiting forthe Parliament, the Court decides”. This paternalistic trend curiously emerges in manyrecent developments involving the relations between high judicial authorities andParliaments: Brexit is a quintessential example of this troubled relation, but also theBVerfG’s protection of the Bundestag’s powers before the (by the Bundestag itself ratifiedand agreed upon) transfers of competences to a supranational level, or recentdevelopments in Israel are part of this common pattern. Courts are increasingly acting asshepherd of Parliaments rather than as guardians of the Constitution. The present caseis an extreme example of this trend as, unlike in similar stories, the Parliament was not tobe saved from any external threat, typically coming from the abuse of executive powers.This paternalistic attitude emphasizes the growing inability of Parliaments to respond tosocial demands.In conclusion, this paternalistic approach seems very unlikely to provide for any efficienttreatment of the various diseases affecting Parliaments in contemporary constitutionalsystems and – on the contrary – ends up helping their suicidal plans. The point is that itis far from certain that there is any life for liberal-democratic constitutionalism after thedeath of Parliaments.3/4Congrats!You read this long post all the way down. Thanks, much obliged! Now, let me ask yousomething: Do you enjoy reading Verfassungsblog? If you do, please support us so thatwe can keep up our work and stay independent.All the best, Max SteinbeisSUGGESTED CITATION  Faraguna, Pietro: “Constitutional Paternalism” and the Inability toLegislate: The Italian Constitutional Court’s Decision on Assisted Suicide, VerfBlog, 2019/9/26,https://verfassungsblog.de/constitutional-paternalism-and-the-inability-to-legislate/.4/4

“Constitutional Paternalism” and the Inability to Legislate

https://arts.units.it/bitstream/11368/2950617/1/2019_9_26_Cappato_VB.pdf

\u201cConstitutional Paternalism\u201d and the Inability to Legislate

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