Article NJECL

New Journal of European Criminal Law

2019, Vol. 10(4) 376–388
The Italian Constitutional ª The Author(s) 2019
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Court and the constitutionality sagepub.com/journals-permissions

DOI: 10.1177/2032284419872268
njecl.sagepub.com
of the criminalisation of assisted
suicide of patients suffering from
serious and incurable diseases

Javier Escobar Veas

Universidad Mayor, Chile

Abstract
On 16 November 2018, the Italian Constitutional Court addressed for the first time the
controversial issue of the constitutionality of the criminalisation of assisted suicide of patients
suffering from serious and incurable diseases. In its judgment, the Court held that the crim-
inalisation of assisted suicide is not contrary to the Constitution, rejecting the existence of a right
to die, in line with the European Court of Human Rights case law. Nevertheless, the Constitutional
Court recognised that in cases of patients suffering from serious and incurable diseases, an
absolute prohibition on assisted suicide could run contrary to the freedom of self-determination
and the constitutional principles of human dignity and equality. The present note describes and
analyses the facts of the case and the reasoning of the Constitutional Court, especially the
structure of the argument and the new ‘decision technique’ adopted.

Keywords
Assisted suicide, euthanasia, right to life, right to die with dignity

Introduction
On 16 November 2018, the Italian Constitutional Court delivered its first decision on the contro-
versial issue of the constitutionality of the criminalisation of assisted suicide of patients suffering
from incurable diseases.1 The legal problems posed by the ordinance 207/2018 are unquestionably
of great interest, both from a national and a comparative perspective.

1. Ordinance 207/2018. Available at: http://www.giurcost.org/decisioni/2018/0207o-18.html (Accessed 23 August 2019).

Corresponding author:
Javier Escobar Veas, Department of Criminal Law, Mayor University, Santiago, Chile.
E-mail: javier.escobar@mail.udp.cl
Veas 377

The constitutional question was raised by the Milan Court in the context of criminal prosecution
for the offence of assisted suicide. The defendant, having been previously requested to do so by the
patient suffering from a serious and incurable disease, took him to a Swiss medical centre where
the patient underwent a medically assisted suicide procedure.
In its decision, the Italian Constitutional Court ruled that the legislature is sovereign to establish
an offence of assisted suicide, its criminalisation not being contrary to the Constitution. Never-
theless, the Court held that there are exceptional situations in which an absolute prohibition on
assisted suicide could be considered contrary to the Constitution. The Court referred specifically to
those cases in which patients suffer a serious and incurable disease but retain their full mental
capacity.
The decision of the Italian Constitutional Court represents a new chapter in the comparative
scenario of judicial decisions on end-of-life issues.2 In this context, the decisions of the Colombian
Constitutional Court, the Canadian Supreme Court and the United Kingdom Supreme Court are
pertinent, and will be reviewed throughout this note. The first part of this article describes the facts
of the case and the questions raised before the Constitutional Court. The second part examines the
reasoning of the Italian Constitutional Court. Finally, the third part addresses four legal issues
arising from the ordinance that, in my opinion, stand out after a first reading.

The case
Following a car accident in 2014, Fabiano Antonioni remained tetraplegic and irreversibly blind
due to cortical damage. He was artificially fed 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. Yet, he had retained a
full mental capacity, being able to communicate with the world through the help of a voice
synthesiser.
Two years after the accident, and due to his condition, Fabiano decided to put an end to his life,
sharing his wish with his family. His fiancée and his mother attempted to dissuade him, but he
maintained his resolution.
In May 2016, Fabiano contacted the Swiss association Dignitas, whose core mission is to help
people exercise their ‘right to die with dignity’.3 In the same period, he got to know Marco
Cappato, who declared himself available to accompany Fabiano to a Dignitas facility, in Switzer-
land. Fabiano then made an application to the association, which allowed his request. In the
following months, Fabiano confirmed his decision, communicating it publicly.
In February 2017, Marco drove Fabiano to the Swiss facility. Fabiano’s mother and fiancée also
accompanied him. Once in Switzerland, he was examined by doctors, who authorised the proce-
dure, which took place on 27 February. Through a device operated by the patient’s tongue, he was
able to inject a lethal substance into his veins, which caused him a quick and painless death.

2. F. Viganò, ‘The Italian Constitutional Court on Assisted Suicide’ (Criminal Justice Network, 27 November 2018).
Available at: http://www.criminaljusticenetwork.eu/it/post/the-italian-constitutional-court-on-assisted-suicide (acces-
sed 7 March 2019).
3. According to the Swiss legislation, aiding suicide is only criminally punished when the assistance is given for selfish
motives. F.R. Martı́nez, ‘El debate de la Eutanasia y el Suicidio Asistido en Perspectiva Comparada. Garantı́as de
Procedimiento a Tener en Cuenta ante su Eventual Despenalización en España’, UNED-Revista de Derecho Polı́tico
71–72 (2008), pp. 441–442.
378 New Journal of European Criminal Law 10(4)

Back in Italy, Marco reported himself to the police. A criminal proceeding was initiated against
Marco for the offence of assisted suicide, provided by Article 580 of the Italian criminal code
(ICC).4 In February 2018, the criminal court in charge of the case decided to halt the proceeding
and refer two preliminary questions to the Constitutional Court:

(a) Is Article 580 ICC compatible with the patient’s fundamental rights, insofar as it encom-
passes the conduct of merely ‘helping’ another person to commit suicide, even if the latter
has spontaneously, and with full mental capacity, decided to take his or her own life?
(b) Is the harsh penalty (imprisonment from 5 to 12 years) provided by Article 580 ICC for the
mere assistance to the suicide of a fully determined person compatible with the proportion-
ality principle?

The reasoning of the Italian Constitutional Court

1. Regarding the constitutionality of the criminalisation of mere assistance to suicide, the
Court held that it is not contrary to the Constitution by itself.5 Analogously to what happens
in other countries,6 although the Italian legislature does not sanction suicide as such, it does
so with respect to who participates in the suicide of another, by way of either moral or
material assistance. Through the criminalisation of assisted suicide, the legislature seeks to
protect the victim from decisions that cause harm to himself: not considering advisable to
impose criminal sanctions on persons who attempt to commit suicide, the legislature has
chosen to create a kind of protective belt around them.7
2. The Court ruled out any violation of the right to life, recognised by Article 2 of the Italian
Constitution, as well as by Article 2 of the European Convention on Human Rights
(ECHR). According to the Court, the right to life comprises an obligation to protect the
life, and not a right for the individuals to obtain any assistance to commit suicide.8 The
conclusion is consistent with the European Court of Human Rights case law, which ruled
in Pretty v. United Kingdom that a ‘right to die with dignity’ is not implied in the right to
life.9

Neither can the right to personal autonomy be invoked as a ground upon which to consider
Article 580 ICC unconstitutional. The Court underlined that the aim of the criminal provision is to
protect life, especially of weak and vulnerable persons. The law wants to protect them from the
irreversible consequences of suicide decisions, as well as against external undue interference.10
According to the Court, the prohibition on assisted suicide is then important with respect to persons

4. ‘Articolo 580. Istigazione o aiuto al suicidio. Chiunque ( . . . ) agevola in qualsiasi modo l’esecuzione, è punito, se il
suicidio avviene, con la reclusione da cinque a dodici anni’.
5. Italian Constitutional Court, ord. 207/2018, para 8.
6. For instance, Chile (Article 393 Criminal Code), Argentina (Article 83 Criminal Code), Spain (Article 143 Criminal
Code).
7. Italian Constitutional Court, ord. 207/2018, para 4.
8. Italian Constitutional Court, ord. 207/2018, para 5.
9. ECtHR, Pretty v. United Kingdom, 29 April 2002, § 39–40.
10. Italian Constitutional Court, ord. 207/2018, para 6.
Veas 379

suffering from a physical or psychological medical condition, or simply loneliness, who could be
induced to end their lives prematurely if the legal system allowed assisted suicide.11
Article 580 ICC is not incompatible either with the right to private life of the suicidal person,
recognised by Article 8 ECHR. Citing the European Court of Human Rights case law (Haas v.
Switzerland,12 Koch v. Germany13 and Gross v. Switzerland14), the Italian Constitutional Court
points out that the State has a wide margin of appreciation in balancing the necessity to protect
human life and the right to a private life, being entitled to regulate through the operation of the
general criminal law activities which are detrimental to the life and safety of other individuals.15 In
this case, the State decided to limit the right to a private life of the suicidal person, with the aim of
protecting his or her life, by preventing third parties from assisting his or her suicide.

3. Notwithstanding the constitutionality of the offence of assisted suicide, the Constitutional

Court recognises that there are situations in which an absolute prohibition on assisted
suicide could be considered contrary to the Constitution itself. The Court refers specifically
to those cases where the patients (1) suffer from a serious and incurable disease, (2) which
causes them severe and subjectively intolerable pain, (3) and are kept alive by life-support
treatments (4) but preserve their full mental capacity.16 All these requirements were met in
the case of Fabiano.

In Italy, according to law 219/2017, which recognises the patient’s fundamental right to refuse
any medical treatment, patients are already allowed to put an end to their life by refusing life-
support treatments.17 At the same time, law 38/2010 authorises them to request the application of
therapies to alleviate pain, which includes the possibility of continuous deep palliative sedation.18
However, current Italian legislation does not allow patients to receive a treatment aiming at
directly causing their death. As a result, the patient who wishes to put an end to his life is obliged
to undergo a slower and more extensive process, due to the withdrawal of life-support
mechanisms.19
These cases also call into question the reasons that justify the criminalisation of assisted suicide.
‘If, in fact, the cardinal value of life does not exclude the obligation to respect the patient’s decision
to end his life, through the interruption of life-support treatments ( . . . ), there is no reason why the
same value should be translated into an absolute obstacle’20 to accept the request for help from the
patient who wishes to avoid a slower and wider process of death. If the persons who depend on this
type of treatment can decide to end their life by interrupting such mechanisms, there is no reason

11. Italian Constitutional Court, ord. 207/2018, para 6.

12. ECtHR, Haas v. Switzerland, 20 January 2011.
13. ECtHR, Koch v. Germany, 14 May 2013.
14. ECtHR, Gross v. Switzerland, 30 September 2014.
15. ECtHR, Pretty v. United Kingdom, 29 April 2002, § 74; Italian Constitutional Court, ord. 207/2018, para 7.
16. Italian Constitutional Court, ord. 207/2018, para 8: ‘Il riferimento è, più in particolare, alle ipotesi in cui il soggetto
agevolato si identifichi in una persona (a) affetta da una patologia irreversibile e (b) fonte di sofferenze fisiche o
psicologiche, che trova assolutamente intollerabili, la quale sia (c) tenuta in vita a mezzo di trattamenti di sostegno
vitale, ma resti (d) capace di prendere decisioni libere e consapevoli’.
17. Italian Constitutional Court, ord. 207/2018, para 8.
18. Italian Constitutional Court, ord. 207/2018, para 10.
19. Italian Constitutional Court, ord. 207/2018, para 9.
20. Italian Constitutional Court, ord. 207/2018, para 9.
380 New Journal of European Criminal Law 10(4)

why these same persons would need unbreakable protection against their own will to die in a
manner that they consider more dignified.
The Court concludes, consequently, that the absolute prohibition on assisted suicide, in this
specific context, restricts the freedom of self-determination of patients, imposing on them a single
way to end their life, contravening the principles of human dignity and equality.21

4. Notwithstanding the foregoing, the Constitutional Court pointed out that the constitutional
issue addressed cannot be solved, at least not for the moment, by declaring Article 580 ICC
to be unconstitutional.

Such a declaration would produce a legal vacuum, allowing anyone to offer assistance in the
suicide of others, without prior control of their effective capacity for self-determination or under-
standing of the consequences of their choice.22 Therefore, a legal framework that establishes the
conditions and procedures through which a person can be legally assisted to end his or her life,
which also provides the safeguards to prevent the risk of premature refusal by the patient of
palliative care that could allow him or her to live a dignified life even with an incurable illness
is necessary. On these issues, there are multiple options, and Parliament is the appropriate insti-
tution to adopt the appropriate decisions and the legal framework.
Therefore, the Court decided, using its ‘powers of management of the constitutional procedure’,
to schedule a new hearing on 24 September 2019, in order to grant Parliament the opportunity to
adopt a comprehensive legislation on the subject.23
The Court highlighted that the solution adopted addressed analogous concerns of those that
inspired the Canadian Supreme Court judgment in Carter v. Canada, which declared void the
offence of assisted suicide, insofar as it absolutely prohibited physician-assisted death for a com-
petent adult person who clearly consents to the termination of life, and has a serious and incurable
disease that causes him intolerable enduring suffering. The Canadian Court suspended the effects
of the decision for 12 months, in order to give Parliament ‘the opportunity to craft an appropriate
remedy’, since ‘complex regulatory regimes are better created by Parliament than by the courts’.24
The Italian Constitutional Court also recognised that it had drawn inspiration from the judgment
of the United Kingdom Supreme Court in Nicklinson,25 where the majority of the justices decided
not to issue a declaration of incompatibility of the offence of assisted suicide precisely in order to
give Parliament the opportunity to legislate on the matter.26

Comment
Undoubtedly, ordinance 207/2018 poses legal questions of great interest, both from a national and
a comparative perspective. The Italian Constitutional Court addresses highly complex issues, such
as assisted suicide; the content and limits of the rights to life, to private life and the right to self-

21. Italian Constitutional Court, ord. 207/2018, para 9.

22. Italian Constitutional Court, ord. 207/2018, para 10.
23. Italian Constitutional Court, ord. 207/2018, para 11.
24. Supreme Court of Canada, Carter v. Canada [2015], para 125.
25. Supreme Court of the United Kingdom, Nicklinson and others v. United Kingdom [2014].
26. Italian Constitutional Court, ord. 207/2018, para 11.
Veas 381

determination; the rationale of the offence of assisted suicide; as well as the role of the Constitu-
tional Court in assessing the legitimacy of Parliament’s criminalisation decisions.
Since it is not possible to analyse all the standpoints of the Court, nor its implications, in the
following paragraphs I will comment on four matters that, in my opinion, stand out after a first
reading.

(1) Assisted suicide or active euthanasia?

In order to determine the scope of the reasoning of the Constitutional Court, and avoid con-
ceptual overlap, it is essential to clarify the object of ordinance 207/2018. In this regard, it is
important to highlight that both the constitutional question and the Court’s ordinance refer to
assisted suicide at all times.
Although the Court does not define ‘assisted suicide’, it is possible to affirm, in simple terms,
that it includes cases in which a third party supplies the suicidal person with the elements necessary
to end his life.27 In contrast, active euthanasia is different because the third party causes the death
of the suicidal person, at the request of the latter.28 The distinction, despite being rejected by some
scholars,29 has been expressly recognised by a multiplicity of legal systems, which have estab-
lished different regulations for cases of suicide aid and active euthanasia. For example, in Switzer-
land, Washington and Oregon,30 assisted suicide is allowed under certain circumstances but not
euthanasia.31
On this point, ordinance 207/2018 differs from the Colombian and Canadian experiences. In
relation to the first, the Colombian Constitutional Court, in its ruling C-239-97, explicitly
addressed active euthanasia, exempting doctors who practice it on a person suffering from a
terminal illness that causes him or her intense suffering or pain, as long as he or she has requested
the practice of euthanasia freely and in full use of his or her mental faculties, from criminal
liability.32
Carter v. Canada, instead, is a case of conceptual unification. Indeed, despite the fact that, as in
the Italian case, the trial was about the constitutionality of the criminal prohibition of assisted
suicide,33 the Canadian Supreme Court created the concept of ‘physician-assisted death’, which
includes assisted suicide and active euthanasia.34 For this reason, the Medical Assistance in Dying

27. P. Lewis, Assisted Dying and Legal Change (Oxford: Oxford University Press, 2007), p. 5; G.L. Villegas, ‘La Euta-
nasia Activa en Colombia. Algunas Reflexiones Sobre la Jurisprudencia Constitucional’, Revista Derecho del Estado
11 (2001), p. 96.
28. Lewis, Assisted Dying and Legal Change, pp. 4–5; M. Otlowski, Voluntary Euthanasia and the Common Law (Oxford:
Oxford University Press, 2000), p. 5.
29. A. Goic, ‘Apuntes Sobre la Eutanasia’, Revista Médica de Chile 3 (2005), p. 374.
30. An interesting study on the Oregon experience can be found in B. Rosenfeld, Assisted Suicide and the Right to Die
(Washington, DC: American Psychological Association, 2004), pp. 147–164.
31. F.R. Martı́nez, ‘La Ayuda Médica a Morir Como Derecho Fundamental. Comentario Crı́tico de la Sentencia de la Corte
Suprema de Canadá de 6 de Febrero de 2015, asunto Carter v. Canadá’, BioLaw Journal – Rivista di BioDiritto
2 (2015), p. 248. Active euthanasia, on the other hand, is regulated in the Netherlands, Belgium, Luxembourg,
Colombia and Canada. V.H. Carrasco and F. Crispi, ‘Eutanasia en Chile: Una Discusión Pendiente’, Revista Médica de
Chile 144(12) (2016), p. 1599.
32. Constitutional Court of Colombia, judgment C-239-97 [1997], para 3.
33. Supreme Court of Canada, Carter v. Canada [2015], paras 1–2.
34. Supreme Court of Canada, Carter v. Canada [2015], para 66.
382 New Journal of European Criminal Law 10(4)

Act 2016, enacted as a response to Carter v. Canada, regulated both medical options for the
patient.
It is positive that the Italian Constitutional Court has not confused both types of conduct in
its ordinance. The Court only referred to assisted suicide and not to euthanasia, ruling only
regarding the first.35 This has special relevance if it is considered that there are opinions in
doctrine that advocate the adoption of a system, such as the one in Oregon, which
exclusively regulates assisted suicide, noting that such a model, in addition to safeguarding
the patient’s freely given consent more vigorously, decreases the possible risks of slippery
slope.36

(2) Methodological structure of the argument underlying the ordinance

Regarding the methodological structure of the ordinance, it should be noted that the
Constitutional Court rejects, from its first considerations, the existence of a ‘right to die’.
As has been stated, the Court holds that the right to life comprises an obligation to
protect life, and not a right for individuals to obtain assistance to commit suicide. This
circumstance constitutes a second contrast with the Colombian Constitutional Court
case law, which has ruled that the right to life with dignity includes the right to die with
dignity.37
However, the rejection of the right to die does not resolve the discussion. Although the State is
obliged to protect life, this function must be compatible with respect for other constitutional
values.38 Under this perspective, the problem is presented as one of balancing the different rights
involved.
In my opinion, this is the second positive aspect of the ordinance: the Italian Constitutional
Court avoided entering into the swampy discussion about the existence or not of a ‘right to die’.
Instead, the core of the legal issue was defined as an analysis of the reasonableness of a legal
limitation (the offence of assisted suicide) to a fundamental right, closer to the daily work of the
Constitutional Court.
This analytical model was the same as that used in Carter v. Canada. On that occasion,
the Canadian Supreme Court held that the question under consideration was whether the
absolute prohibition on physician-assisted dying, with its heavy impact on the rights to life,
liberty and security of the person, was the least drastic means of achieving the legislative
objective. The task of the Court was to determine whether a regime less restrictive of life,
liberty and security of the person could address the risks associated with physician-assisted
dying.39

35. For example, Italian Constitutional Court, ord. 207/2018, paras 6–9.
36. Martı́nez, ‘El Debate de la Eutanasia y el Suicidio Asistido en Perspectiva Comparada’, pp. 474–475.
37. Constitutional Court of Colombia, judgment C-239-97 [1997], para 3; Constitutional Court of Colombia, judgment
T-970-14 [2014], para 5.
38. Villegas, ‘La Eutanasia Activa en Colombia’, p. 98.
39. Supreme Court of Canada, Carter v. Canada [2015], para 103; Martı́nez, ‘La Ayuda Médica a Morir Como Derecho
Fundamental’, p. 252.
Veas 383

(3) Constitutionality of the criminal prohibition on assisted suicide and cases of patients with
serious and incurable diseases.

It is now necessary to analyse the arguments in relation to the constitutionality of the offence of
assisted suicide.
The Constitutional Court held that, in compliance with its duty to protect life, the State can
legitimately establish a criminal offence of assisted suicide. It must be clarified, however, that this
was never in dispute. The Criminal Court of Milan did not question the constitutionality of the
offence of assisted suicide in its entirety, but only its application to cases in which the assistance
had not determined or reinforced the suicidal purpose of the patient. Therefore, the questioning was
not restricted to cases of patients with serious and irreversible diseases.
Notwithstanding the constitutionality of the offence of assisted suicide, the Constitutional Court
recognised that there are exceptional situations in which an absolute prohibition on assisted suicide
could be considered contrary to the Constitution. The Court referred to those cases in which
patients suffer from a serious and incurable disease and depend on life-support treatments but
retain their full mental capacity.
In this specific context, the absolute criminal prohibition of assisted suicide configures an
unjustified limitation on the right to self-determination of the patient, imposing a single way
to end his or her life on him or her, contravening the principles of human dignity and
equality.
This argument is similar to the one developed in Carter v. Canada. The Canadian Supreme
Court held that the criminal prohibition on assisted suicide infringed the fundamental right to
life,40 liberty and security of the persons,41 insofar as it prohibited the:

physician-assisted death for a competent adult person who (1) clearly consents to the termination of
life; and (2) has a grievous and irremediable medical condition (including an illness, disease or
disability) that causes enduring suffering that is intolerable to the individual in the circumstances of
his or her condition. ‘‘Irremediable,’’ it should be added, does not require the patient to undertake
treatments that are not acceptable to the individual.42

In general terms, in my opinion, the reasoning of the Italian Constitutional Court seems
reasonable. As indicated, in these cases, the patients are already authorised to reject life-
support treatment, causing their death. However, it is absolutely forbidden for a doctor to make
available to patients treatments that are intended to cause their death. Thus, if the patients wish to

40. The violation to the right to life constitutes a truly novel and interesting argument. The Canadian Supreme Court shared
the argument of the first instance judge, who argued that an absolute ban on assisted death had caused certain patients to
make the decision to commit suicide prematurely. This occurs mainly in the case of diseases that, after a certain time,
incapacitate the patient, not allowing him to subsequently commit suicide autonomously. In this way, these people
decide to end their lives while still retaining their full autonomy, for fear of not doing so in the future, thus shortening
their lives. Supreme Court of Canada, Carter v. Canada [2015], para 56 et seq. O. Polipo, ‘La legalizzazione del
suicidio assistito in Canada: quando i poteri costituzionali sono complementari’ (Diritto Penale Contemporaneo,
16 November 2016), p. 12. Available at: https://www.penalecontemporaneo.it/upload/POLIPO_2016a.pdf (accessed
9 March 2019). Unfortunately, this argument was not present in the constitutional Italian debate.
41. Supreme Court of Canada, Carter v. Canada [2015], para 126.
42. Supreme Court of Canada, Carter v. Canada [2015], para 127.
384 New Journal of European Criminal Law 10(4)

end their lives, their only available option is to endure a process of death which can be slow and
painful.
If in these situations the legal order already authorises the patients to ‘let themselves die’,
why is it prohibited, in absolute terms, for a doctor, previously requested to do so by the
patient, to help them to end their lives, preventing them from suffering a death process that
they consider incompatible with their own concept of dignity? This is the question that the
Italian Constitutional Court poses and answers: if the cardinal value of life does not exclude
the obligation to respect the patient’s decision to end their own existence, through the inter-
ruption of life-support treatment, there is no reason why the same value should be an absolute
obstacle to accepting the request for help from the patient, who wishes to avoid a slow
process of death.
Despite agreeing with the Court’s conclusions, I see two problematic issues in the ruling.
First, the Constitutional Court does not clearly define the circle of persons who exception-
ally could assist a suicide. Even though the Court on several occasions refers to or uses the
word ‘medic’,43 it did not establish as a requirement that a health professional be the person
that helps the patient to end his or her life, unlike the Colombian Constitutional Court44 and
the Canadian Supreme Court,45 which did establish that the active subject should be a
physician.
Second, the Court did not resolve the main constitutionality question raised by the Milan
Court.46 In effect, the preliminary question challenged the application of the offence of
assisted suicide to cases in which the assistance had not determined or reinforced the
suicidal purpose of the patient, who was a person fully responsible and aware of his or her
decisions.
If, as the Court affirms, the intervention of the criminal legislature must aim at the protection of
a constitutional interest, and be proportional to the achievement of that end,47 how could the
absolute prohibition on assisted suicide be justified with regard to an adult who, in spite of not
suffering a serious and incurable illness, has decided in an absolutely autonomous way to commit
suicide?48 In my opinion, it seems difficult to justify an absolute criminalisation of these cases. It
must be considered that in these situations, the suicidal person retains his or her full mental
capacity and is not a vulnerable individual. If the rationale to criminalise assisted suicide, as the
Constitutional Court stated, is to protect the suicidal person, creating a kind of protective belt
around him or her, does a totally free willed person need this kind of safeguard? This issue should
be explicitly addressed by the Constitutional Court.

43. For example, Italian Constitutional Court, ord. 207/2018, paras 8–10.
44. Constitutional Court of Colombia, judgment C-239-97 [1997], para 3.
45. Supreme Court of Canada, Carter v. Canada [2015], paras 1, 4, 5 and 126.
46. P.F. Bresciani, ‘Termini di giustificabilità del reato di aiuto al suicidio e diritti dei malati irreversibili, sofferenti, non
autonomi, ma capaci di prendere decisioni libere e consapevoli (Nota a Corte cost., ord. n. 207/2018)’ (Forum di
Quaderni Costituzionali Rassegna, 14 Dicembre 2018), p. 11. Available at: http://www.forumcostituzionale.it/word
press/wp-content/uploads/2018/12/nota_207_2018_bresciani.pdf (accessed 9 March 2019).
47. Regarding the harm principle a hermeneutical criterion, V. Manes, Il principio di offensività nel diritto penale (Torino:
Giappichelli Editore, 2005), pp. 245–277.
48. In the same sense, Bresciani, ‘Termini di giustificabilità del reato di aiuto al suicidio e diritti dei malati irreversibili,
sofferenti, non autonomi, ma capaci di prendere decisioni libere e consapevoli’, p. 11.
Veas 385

(4) New decision technique? Deferred unconstitutionality?

As the Italian doctrine has pointed out, one of the most novel aspects of ordinance 207/2018 is
the ‘decision technique’ adopted,49 called by some ‘deferred unconstitutionality’.50
Notwithstanding that the Constitutional Court affirmed that the current Italian regulation of the
offence of assisted suicide may contravene the Constitution, this situation was not resolved by a
simple declaration of unconstitutionality. In the opinion of the Court, such a declaration would
create a legal vacuum, allowing any person to offer assistance in committing suicide to others,
creating a risk of abuse. In order to avoid this, the adoption of a legal framework that regulates the
matter is required; Parliament is the ideal institution to do so.
Therefore, the Court decided, using its ‘powers of management of the constitutional procedure’,
to schedule a new hearing on September 2019, in order to grant Parliament the opportunity to
legislate on the matter.
Having regard to the foregoing, in my opinion the use of the term ‘deferred unconstitutionality’
is an error, since the Court, in fact, has not formally declared Article 580 ICC unconstitutional, nor
is it legally obliged to do so.51
The Italian Constitutional Court recognises that it drew inspiration from the judgment in Carter
v. Canada, in which the Canadian Supreme Court, after declaring void the offence of assisted
suicide, decided to suspend the effects of the decision for 12 months, in order to give the Parlia-
ment ‘the opportunity to craft an appropriate remedy’, since ‘complex regulatory regimes are
better created by Parliament than by the courts’.52
The solution adopted by the Italian Constitutional Court raises a series of questions, requiring
further analysis.
First, it is relevant to address briefly the Canadian case law on suspended declarations of
invalidity. The Canadian Supreme Court used this authority for the first time in re Manitoba
Language Rights.53 In this case, Manitoba had breached its constitutional obligation to enact
legislation in both French and English, meaning that almost all of the province’s laws were
invalid.54 The Canadian Supreme Court, despite finding the constitutional violation, stated that
if the declaration of invalidity causes immediate effects:

49. U. Adamo, ‘La Corte è ‘attendista’ . . . «facendo leva sui propri poteri di gestione del processo costituzionale». Nota a
Corte cost., ord. n. 207 del 2018’ (Forum di Quaderni Costituzionali Rassegna, 23 November 2018), pp. 2–3. Available
at: http://www.forumcostituzionale.it/wordpress/wp-content/uploads/2018/12/nota_207_2018_adamo.pdf (accessed
9 March 2019); M. Bignami, ‘Il caso Cappato alla Corte costituzionale: un’ordinanza ad incostituzionalità
differita’, (Questione Giustizia, 19 November 2018), para 1. Available at: http://questionegiustizia.it/articolo/il-caso-
cappato-alla-corte-costituzionale-un-ordinanza-ad-incostituzionalita-differita_19-11-2018.php (accessed 9 March 2019);
C. Cupelli, ‘Il caso Cappato, l’incostituzionalità diferita e la dignità nell’autodeterminazione alla morte’ (Diritto Penale
Contemporaneo, 3 December 2018). Available at: https://www.penalecontemporaneo.it/d/6357-il-caso-cappato-l-
incostituzionalita-differita-e-la-dignita-nell-autodeterminazione-alla-morte (accessed 9 March 2019).
50. Bignami, ‘Il caso Cappato alla Corte costituzionale: un’ordinanza ad incostituzionalità differita’, para. 1; Cupelli,
‘Il caso Cappato, l’incostituzionalità diferita e la dignità nell’autodeterminazione alla morte’.
51. Bignami, ‘Il caso Cappato alla Corte costituzionale: un’ordinanza ad incostituzionalità differita’, para 3.
52. Supreme Court of Canada, Carter v. Canada [2015], paras 125–128.
53. Supreme Court of Canada, Carter v. Canada [1985]; K. Roach, ‘Remedial Consensus and Dialogue Under the Charter:
General Declarations and Delayed Declarations of Invalidity’, University of British Columbia Law Review 2 (2002),
p. 218.
54. S. Burningham, ‘A Comment on the Court’s Decision to Suspend the Declaration of Invalidity in Carter v. Canada’,
Saskatchewan Law Review 2 (2015), p. 202.
386 New Journal of European Criminal Law 10(4)

The Province of Manitoba would be faced with chaos and anarchy if the legal rights, obligations and
other effects which have been relied upon by the people of Manitoba since 1890 were suddenly open to
challenge. The constitutional guarantee of rule of law will not tolerate such chaos and anarchy.
Nor will the constitutional guarantee of rule of law tolerate the Province of Manitoba being without a
valid and effectual legal system for the present and future. Thus, it will be necessary to deem tempo-
rarily valid and effective the unilingual Acts of the Legislature of Manitoba which would be currently
in force, were it not for their constitutional defect, for the period of time during which it would be
impossible for the Manitoba Legislature to fulfil its constitutional duty.55

The Canadian Supreme Court justified the suspension pointing out that the opposite solution
would have generated a situation of anarchy and chaos56 contrary to the rule of law. The original
rationale for the suspension is quite clear: the Court faced a choice between maintenance of
unconstitutional laws or ‘chaos and anarchy’. Under these circumstances, as one author has stated,
‘the suspension was originally understood as the lesser of two evils: while not desirable, it was
necessary to avoid a greater harm’.57
Subsequently, in Schachter v. Canada, the Canadian Supreme Court intended to articulate a
framework for granting suspensions, holding that a suspended declaration of invalidity is ‘clearly
appropriate’ if an immediate declaration of invalidity (1) ‘poses a potential danger to the public’;
(2) ‘threatens the rule of law’; or (3) ‘in cases of underinclusiveness as opposed to overbreadth. For
example, in this case some of the interveners argued that in cases where a denial of equal benefit of
the law is alleged the legislation in question is not usually problematic in and of itself. It is its
underinclusiveness that is problematic so striking down the law immediately would I deprive
deserving persons of benefits without providing them to the applicant. At the same time, if there
is no obligation on the government to provide the benefits in the first place, it may be inappropriate
to go ahead and extend them’.58 This legal framework reaffirmed the exceptionality of suspended
declarations.59
Unfortunately, since 1985, suspensions have been granted with increasing frequency and flex-
ibility,60 Carter v. Canada being a good example.61 Periods of delay have also increased, even
reaching 18 months in some cases.62

55. Supreme Court of Canada, Carter v. Canada [1985], p. 758.

56. One author even uses the expression ‘constitutional crisis’. G. Hoole, ‘Proportionality as a Remedial Principle: A
Framework for Suspended Declarations of Invalidity in Canadian Constitutional Law’, Alberta Law Review 1 (2011),
p. 111.
57. Burningham, ‘A Comment on the Court’s Decision to Suspend the Declaration of Invalidity in Carter v. Canada’,
p. 202.
58. Supreme Court of Canada, Carter v. Canada [1992], pp. 715–716.
59. Burningham, ‘A Comment on the Court’s Decision to Suspend the Declaration of Invalidity in Carter v. Canada’,
p. 202.
60. Hoole, ‘Proportionality as a Remedial Principle’, p. 108; Roach, ‘Remedial Consensus and Dialogue Under the
Charter’, p. 218.
61. Burningham, ‘A Comment on the Court’s Decision to Suspend the Declaration of Invalidity in Carter v. Canada’,
p. 202.
62. Roach, ‘Remedial Consensus and Dialogue Under the Charter’, p. 218.
Veas 387

The problem with the ‘decision technique’ adopted by the Italian Constitutional Court is, in my
opinion, precisely its justification. Indeed, the Court based its decision on hypothetical practical
risks: it stated that a declaration of unconstitutionality would create a legal vacuum, which would
allow any person to offer assistance to a person to commit suicide.
First of all, it should be noted that these concerns are hypothetical, as they were not part of the
debate. In effect, there is no information available on the universe of patients with serious and
incurable diseases to be found in the conditions indicated in the ordinance.
Second, it is strange that the Italian Constitutional Court does not take into consideration the
Colombian experience, which shows that a declaration of unconstitutionality in this matter does
not have the chaotic consequences described.63 In 1997, the Colombian Constitutional Court
established the conditions under which active euthanasia would be allowed and urged Congress
to establish, in the shortest possible time, a legal framework for this matter. However, it was not
until 2015 that, due to a second judgment of the Constitutional Court,64 the Ministry of Health and
Social Protection of Colombia issued the required regulations.65 What happened between 1997
and 2015? During this period, active euthanasia was simply practised only by those doctors and
institutions that agreed to it, always under the circumstances established by the Constitutional
Court.66
Notwithstanding the foregoing, even if the concerns of the Italian Constitutional Court could be
true, it would still be necessary to examine whether the decision of the Court was found to be
justified or not. In my opinion, the only possible grounds for suspending the effects of a declaration
of unconstitutionality, or for deferring its pronouncement, as occurred in this case, is the one that
motivated the first judgments of the Canadian Supreme Court: that the declaration of invalidity is
necessary to avoid a greater unconstitutional effect.
Indeed, as the law at issue is contrary to the Constitution, any kind of suspension granted has the
consequence of maintaining this situation of unconstitutionality. The criminal procedure against
Marco remains suspended, and patients who are in the same situation as Fabiano will have to
continue to endure their slow and tortuous death process, suffering incurable diseases that cause
them intolerable pain.
Possible practical difficulties should not be enough to maintain a state of affairs contrary to the
Constitution.
What effects does this ordinance generate in other criminal proceedings for the offence of
assisted suicide? On this, the Court declares that ‘courts should evaluate whether, in the light of
what has been indicated, similar questions of constitutionality may be raised in order to avoid the
application of the provision at issue’.67 Having not formally declared the invalidity of Article 580
ICC, ordinary courts should carefully analyse the circumstances of each case and decide to raise a
preliminary question or not.

63. In 2009, Sabine Michlowski already criticised that the discussions and papers written in English rarely consider the
Colombian experience. S. Michlowski, ‘Legalising Active Voluntary Euthanasia Through the Courts: Some Lessons
From Colombia’, Medical Law Review 17(2) (2009), p. 183.
64. Constitutional Court of Colombia, judgment T-970-14 [2014].
65. E. Dı́az-Amado, ‘La despenalización de la eutanasia en Colombia: contexto, bases y crı́ticas’, Revista de Bioética y
Derecho 40 (2017), p. 132.
66. Op. cit.
67. Italian Constitutional Court, ord. 207/2018, para 11.
388 New Journal of European Criminal Law 10(4)

In conclusion, the Italian Constitutional Court has created a problematic ‘decision technique’
insofar as it is not binding on ordinary courts, not in relation to Parliament nor of itself,68 and
neither was it fully justified.

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship and/or
publication of this article.

Funding
The author(s) received no financial support for the research, authorship and/or publication of this article.

ORCID iD
Javier Escobar Veas https://orcid.org/0000-0001-9266-0396

68. Adamo (2018), p. 11, note 28.