Download/Doc/Recent Judgments/S 207 2018 EN.Pdf [Accessed on April 17, 2020] 24 A

Dipartimento di Scienze Politiche Corso di Laurea in Politics, Philosophy and Economics Cattedra di Public Law

The Judgment no.242/2019 by the Italian Constitutional Court on the ‘Cappato Case’: substantial and procedural traits

RELATORE Nicola Lupo

CANDIDATO Lorenzo Giannì Matr.085662

ANNO ACCADEMICO 2019/2020 Index

Introduction…………………………………………………………………………………………… 4

Ch.1: The ‘Cappato case’: facts and trial process………………………………………………….. 6

1.1 Fabiano Antoniani and Marco Cappato: an instance of civil disobedience………………………… 6

1.2 The incidenter proceeding: the role of the a quo judge and thema decidendum of the review…….. 8

1.3 The Constitutional Court replies: Order 207/2018………………………………………………… 12

Ch.2: Judgment no.242/2019: substantial traits…………………………………………………….. 16

2.1 Art. 580 of the Italian Penal Code: its rationale in light of the current constitutional framework.... 16

2.2 Law no.219/2017: the emergence of its role as tertium comparationis……………………………. 19

2.3 The final decision of the Constitutional Court: the limited area of constitutional non-compliance in article 580 of the Italian Penal Code and critical readings of the merits……………………………… 23

Ch.3: Judgment no.242/2019: formal traits…………………………………………………………. 27

3.1 The typology of decision: a description of interpretative, manipulative and exhortative judgments 27

3.2 The technique of a new double ruling: detection of the vulnus and creative judgment……………. 32

3.3 Legislative discretion and guarantee of constitutionality: a challenging dialectic in the background of Or- der 207/2018 and Judgment 242/2019…………………….………………………………………… 37

Conclusions…………………………………………………………………………………………….. 40

Riassunto in Italiano…………………………………………………………………………………... 42

Bibliography…………………………………………………………………………………………… 47

“Nam Sibyllam quidem Cumis ego ipse oculis meis vidi in ampulla pendere, et cum illi pueri dicerent Sibylla ti theleis; respondebat illa: apothanein thelo.”

Petronio, Satyricon

Introduction

The so called ‘Cappato case’ has produced considerable echoes in the Italian public opinion and in the academic discourse: as a matter of fact, both in light of the sensible ethical issues at stake and of the peculiar procedural techniques adopted by the Constitutional Court, the trial has been the object of the attention of several readers and commentators. So as to honour the bifold value of the discussion, it is the aim of this thesis to enucleate the core substantial and procedural features of Judgment 242/2019 by the Italian Constitutional Court.

The enquiry will depart from the facts leading to the proceeding - namely the dire and irreversible condition of Fabiano Antoniani in the aftermath of an appalling car accident, the development of his suicidal purpose and the aid provided by Marco Cappato in the circumstance, who had acquainted the former on both legally available possibilities in Italy and abroad. Given Antoniani’s firm desire to end his existence through assisted suicide – an illegitimate option within the Italian legal order – Cappato agreed to second his wish and drove him to Switzerland, where a private clinic would host the final act.

Shortly thereafter, this work will investigate the various trial stages that inhered the position of Cappato. Charged with a bifold accusation subsumed from article 580 of the Italian Penal Code, he was brought before the Court of Assizes of Milan. In that forum, however, a question of unconstitutionality was raised by the a quo judge – remitting his doubts on the applicative perimeter and sanctioning traits of article 580 p.c.. The thesis will then explore the procedural and technical significance of the incidenter proceeding, emphasising the intermediary role carried on by the a quo judge and the resolutory potency in the a quem judgment.

The following Order 207/2018, through which the incidental question was addressed, consisted in a ‘surgical cut-out’ of the petitum by the Constitutional Court: although the perduring validity of the challenged law was confirmed – as well as its profitable interlocution with the axiological spirit of the legal order – some illegitimate profiles in article 580 p.c. were detected by the Court. Through the employment of a new procedural device, which allowed the adjourning of the hearing in eleven months’ time – contextually to a monitory exhortation posed to the Legislator in order to address the devised normative vulnera – the Constitutional Court suspended the relevant proceeding.

Given the legislative inertia of the Parliament, notwithstanding the caveat in Order 207/2018, the Constitu- tional Court issued its Judgment 242/2019: the precise area of constitutional non-compliance within article 580 p.c. was further specified and formally declared. At this point, the thesis will thoroughly enquire the telos subtending the challenged piece of legislation, highlighting both its constitutional values and its aporias. Sub- sequently, the substantial traits of Judgment no.242/2019 will be the object of the enquiry: the rationale of the Constitutional Court will be explored, with particular attention devoted to the conceptual link that the latter has envisaged in Law no.219/2017, tertium comparationis in the decision.

This will further lead the thesis to appreciate the final decision approached by the Constitutional Court in its formal dimension. With this focus, a series of procedural devices that subtend the ratio of different typologies of decisions will be analysed. This enquiry will emphasise the ontological autonomy of the new monitory technique, acknowledged in doctrine with the idiomatic solution of incostituzionalità prospettata. The novelties inherent in this unprecedented device will be enucleated, drawing attention on the issues that it raises in the realm of institutional balance. In conclusion, some critical stances on Judgment 242/2019 will be presented – with particular devotion to those features that concern the troublesome relation of the Constitutional Court and the Legislator.

Chapter 1

The ‘Cappato case’: facts and trial process

1.1 Fabiano Antoniani and Marco Cappato: an instance of civil disobedience

The facts leading to the trial publicly acknowledged as the ‘Cappato case’ trace back to 2014. On 13th June of that year, Fabiano ‘DJ Fabo’ Antoniani fell victim to an appalling car accident: the consequences were considerably dire and life-altering. Although having escaped the risk of obtuseness and deterioration of his mental faculties, he incurred in blindness and tetraplegia – a clinical status that caused him constant and excruciating pain. Once the irreversibility of his condition appeared clear, he envisaged the path of ending his life as a desirable route: thus, the suicidal purpose (proposito suicidiario) that will act as the leitmotif throughout the various phases of the trial had been autonomously elaborated.

This is the stage in which Marco Cappato - treasurer of the Association Luca Coscioni, supporter of the cam- paign Eutanasia Legale (lethal euthanasia) and of the World Congress for Freedom of Scientific Research – entered the scene. Simultaneously to the political experience that he gained as a Member of the European Parliament and representative of the Partito Radicale Transnazionale at UN, Marco Cappato developed particular devotion to the question of euthanasia – notoriously in the context of the Piergiorgio Welby case of 2007.1 In light of the latter’s experience, Antoniani chose to seek Cappato’s support in order to pursue the solution that he had foreseen as the preferable one. According to possibilities available in Italy, Cappato proposed heavy sedation as a legal and feasible manner to accomplish Antoniani’s wish; nonetheless, the latter made his willingness to submit himself to a procedure of assisted suicide in Switzerland clear through hunger strikes and public communications.

Also referred to as physician-assisted suicide, the practice in question is carried on with the aid of a doctor who plays a pivotal role in both informing and providing the patient with means and information required to finalize the act. While illegal in Italy, Switzerland has strictly legislated on the issue allowing for assisted suicide as long as it is acknowledged as a not-for-profit procedure conducted under medical supervision: in the Swiss instance, ‘the person autonomously ingests the supplied lethal drug without the intervention of a third party’.2 Given the firm desire matured by Antoniani, Cappato agreed to second his wish and drove him to ‘Dignitas’, the Swiss clinic designed as the one in which the act would have been finalized. Two days after the admission and hospitalization, on 27th February 2017, Antoniani underwent the practice of assisted suicide: through a mouth-activated plunger, the lethal drug was injected into his veins.3

1 Associazione Luca Coscioni. Available at: https://www.associazionelucacoscioni.it/chi-marco-cappato/ [Accessed on April 15, 2020] 2 Ibidem. 3 C. Cupelli, Il Parlamento decide di non decidere e la Corte costituzionale risponde a se stessa. La sentenza n. 242 del 2019 e il caso Cappato, Sistema Penale, Fascicolo 12/2019, p.35. 6

Coming back from Switzerland, Cappato reported himself before the Carabinieri of Milan and explained that he had driven Antoniani to Dignitas. Following said development, he was added to the list of suspects by the Public Prosecutor of Milan and charged with a bifold accusation: Cappato was held responsible both for having acquainted Antoniani and his family with the Dignitas-related possibilities – thus allegedly strengthening his suicidal purpose – and for having materially supported the realization of the aforementioned by physically accompanying DJ Fabo. Notwithstanding that, on the basis of a constitutionally oriented interpretation of article 580 p.c.4, the Tribunal of Milan filed a request for dismissal (richiesta di archiviazione) which would have favoured the thesis of Cappato’s conduct as not being criminally relevant and therefore not punishable; subordinately, the Public Prosecutors asked that a question of constitutional legitimacy regarding article 580 p.c. was raised – the same request that was forwarded by Cappato’s lawyer in the defence (memoria difensiva). However, the justice for preliminary investigations (Giudice per le indagini preliminari) rejected all of the aforementioned requests and asked the Attorney General to draw up the charge against Cappato.

As a consequence, his defence proceeded with the formulation of a request of summary judgment (giudizio immediato) which was accepted by the Tribunal of Milan. Between September 2017 and February 2018, the Court of Assizes of Milan would host a number of sessions consisting of the admission of evidence provided by the parties, the hearing of witnesses and the examination of Cappato himself. At the hearing that preceded the decision of the Court, both the Public Prosecutors and the defence argued once again in favour of either the acquittal of Cappato or the raising of a question of unconstitutionality regarding article 580 p.c.: on the 17th February 2018, the Court of Assizes finally issued an order to the spirit of the latter request, therefore challenging article 580 p.c. constitutional validity.

Before moving to the next paragraph, in which the salient features of an incidenter proceeding will be out- lined together with the analysis of the contextual dimension of this peculiar constitutional claim, it is of ut- most importance to assess the civil value of Cappato’s conduct. In his personal website, a sentence pro- nounced during one of the sessions before the Tribunal of Milan is quoted: ‘Rather than being acquitted for a help deemed irrelevant, while it was crucial, I would rather be condemned. A different matter would have been to be acquitted because of the unconstitutionality of the crime. If I am acquitted, we would need to ac- cept that only those who are able to go to Switzerland can be free to choose how to end their life’5. The extent to which this act can be interpreted as pertaining to an ampler effort of civil disobedience is vividly summed up in this sentence. As evident from his words, Cappato’s intentions cannot be understood as aim- ing to solely solve the contingency in which he had been actively involved: they should rather be inscribed

4 ‘Chiunque determina altri al suicidio o rafforza l'altrui proposito di suicidio, ovvero ne agevola in qualsiasi modo l'esecuzione, è punito, se il suicidio avviene, con la reclusione da cinque a dodici anni. Se il suicidio non avviene, è punito con la reclusione da uno a cinque anni, sempre che dal tentativo di suicidio derivi una lesione personale grave o gravissima [583]. Le pene sono au- mentate [64] se la persona istigata o eccitata o aiutata si trova in una delle condizioni indicate nei numeri 1 e 2 dell'articolo pre- cedente. Nondimeno, se la persona suddetta è minore degli anni quattordici o comunque è priva della capacità d'intendere o di volere [85], si applicano le disposizioni relative all'omicidio [575-577]’. Italian Penal Code. 5 Associazione Luca Coscioni, cit. 7 in a wider attempt to elicit an answer by the Italian Parliament on a delicate issue – with the implicit corollary of provoking a relevant debate within the national public discourse. The general objective of this act of civil disobedience was, in line with the content of article 32 of the Italian Constitution6 – which safeguards health as a fundamental right, together with the possibility for the individual to refuse certain medical treatments – to annul the relevant prohibitions contained in article 580 p.c.. More in particular, Cappato’s conduct also aimed at influencing the parliamentary discussion regarding the Living Will whose legislative possibilities were being explored at the time.

1.2 The incidenter proceeding: the role of the a quo judge and thema decidendum of the review

Two proceedings may bring to instances of constitutional review in the Italian legal system: the principaliter and the incidenter. Order 1/2018 by the Court of Assizes of Milan7, through which the question of unconstitutionality of article 580 p.c. was raised in the context of the ‘Cappato case’, pertains to the latter category. As stated by article 1 of Constitutional Law 1/19488, the incidenter proceeding occurs when the question of unconstitutionality is raised ‘during the course of a court case’. Its nomenclature is due to the fact that the question arises not per se but as an ‘incident’ in procedural terms; contrarily to a principaliter proceeding, the incidenter is concrete – the contested law is challenged at the moment of its application and due to its employment – general – it may concern every law in the context of its application – non-disposable9 – the a quo judge, who sits in the ordinary court and is responsible for the formulation of the question, must remit the doubts of his Court to the a quem judge – i.e. the Italian Constitutional Court10.

Theoretically, the process within which the question of unconstitutionality arises shall not be interpreted as the occasion that instrumentally enables the challenging of a law, but rather as the main root and raison d'être of the doubt – which ought to incidentally derive from the process. However, as in many instances of civil disobedience, it might be that the procedural stage is meant as a dialectical phase that preludes to the authentic objective of the act itself – namely, eliciting judicial and legislative attention on a certain issue. As Zagrebelsky and Marcenò pointed out, the question of unconstitutionality can be interpreted as a jurisdictional tool that shades light on potential antinomies between the lex and the iura, respectively law as perceived

6 ‘The Republic shall safeguard health as a fundamental right of the individual and as a collective interest and shall guarantee free medical care to the indigent. No one may be forcefully submitted to medical treatment unless provided for by law. In no case may the law violate the limits imposed by respect for the human being’. Senate’s official translation of the Italian Constitu- tion. 7 The full text of the Order is available at: https://www.associazionelucacoscioni.it/wp-content/uploads/2017/11/Ordinanza- Corte-di-Assise-Milano-Processo-Cappato.pdf [Accessed on April 17, 2020] 8 ‘La questione di legittimità costituzionale di una legge o di un atto avente forza di legge della Repubblica rilevata d'ufficio o sollevata da una delle parti nel corso di un giudizio e non ritenuta dal giudice manifestamente infondata, è rimessa alla Corte costituzionale per la sua decisione.’ 9 Indisponibile. 10 G. Zagrebelsky, V. Marcenò, Giustizia Costituzionale**: Oggetti, provvedimenti, decisioni, Il Mulino, Bologna, 2018, p.95. 8 by the ‘political’ and the individuals.11 Within this conceptual framework, the Constitutional Court in its a quem role can be understood as the bearer of a synthesis at the vertex of a triadic system. Even though the constitutional process is mainly of an ‘objective law’ typology, as it aims at the elimination of unconstitutional vices which hinder the consistency of the normative system, its very premises lay in the protection of subjective stances which confer meaning to judgments arising out of questions of unconstitutionality.

In the context of such antithetical tension, the function of the a quo judge shall be appreciated in its mediating relevance. In spite of the fact that doubts of unconstitutionality may depart from both the parties involved in the process and the a quo judge, there is a substantial difference in the scope of action of the two. While the power of the parties is of indirect kind, the power of the a quo judge is direct. When the parties or the State’s Attorney expose to the a quo judge their doubts concerning the constitutionality of a law, it is the latter who, after having ascertained the properness of the question, transmits the aforementioned to the Constitutional Court. Whereas, when the a quo judge himself incurs in a doubt deriving from the application of a law in the context of a process, he may directly refer to the Constitutional Court ex officio. In both instances, the media- tion stage between the doubt and the resolutory judgment is ascribed to the remitting judge.

Article 23 of Law 87/195312, which covers the features of the incidenter proceeding, illustrates the procedural stages that are to be observed in order to confer validity to a question of unconstitutionality. Whether the doubt is raised by the parties or by the a quo judge, it is imperative that the thema decidendum is clearly indicated – i.e. ‘the provisions of the law or the act having force of law that are considered to be unconstitutional (the object of review) and the provisions of the Constitution or other constitutional laws that are presumed to have been violated (the parameter of the review)’13.

The a quo judge’s pivotal role is furtherly emphasized by the verification of two conditions that precede the suspension of the case and the referral to the Constitutional Court: as provided for by article 23.4 of Law 87/1953, the a quo judge should ascertain that the question of unconstitutionality is relevant to the case and that it is not clearly unfounded. The question will be considered relevant if the provisions presented as the object of the claim are effectively essential for the a quo judge to ponder a decision in the case. The second condition highlights the preventive power of constitutional review retained by the referring judge, since he must ensure, to a general degree, that the question is not clearly unfounded.

The concept of thema decidendum can be employed to brighten the procedural significance of Order 1/2018 by the Court of Assizes of Milan. Question of unconstitutionality of article 580 p.c. was raised in the part in which: a) it prosecutes the conducts of helping to commit suicide (aiuto al suicidio) alternatively to those of

11 Ibidem, p.96. 12 ‘Nel corso di un giudizio dinanzi ad una autorità giurisdizionale una delle parti o il Pubblico Ministero possono sollevare questione di legittimità costituzionale mediante apposita istanza, indicando: a) le disposizioni della legge o dell’atto avente forza di legge dello Stato o di una Regione, viziate da illegittimità costituzionale; b) le disposizioni della Costituzione o delle leggi costituzionali, che si assumono violate.’ 13 G.F. Ferrari, Introduction to Italian Public Law, Giuffrè, 2008, p.197. 9 incitement to commit suicide (incitamento al suicidio), therefore regardless of the contribution to the determination or strengthening of the suicidal purpose. Contrast is estimated with articles 314, 13 (subparagraph 1)15 and 11716 of the Italian Constitution, in light of articles 217 and 818 of the ECHR; b) it provides that the conducts aimed at facilitating the act of suicide (agevolazione del proposito di suicidio) – which do not affect the deliberative autonomy of the aspiring suicide – are punishable by imprisonment from 5 to 10 years, without discerning the aforementioned from those of incitement to commit suicide. Contrast is estimated with articles 3, 13, 25 (subparagraph 2)19 and 27 (subparagraph 3)20 of the Italian Constitution.

From the reasons stated by the Court of Assizes of Milan, it is possible to enucleate the features of thema decidendum that confer substance to the question of unconstitutionality. In both arguments forwarded by the a quo judge, the object of review is article 580 of the Italian Penal Code. The reasoning of the remitting Court departs from the belief that committing an act of suicide shall be treated as the consequence of an individual’s freedom: it follows that only those actions aimed at jeopardizing self-determination and autonomy in the establishment of the suicidal purpose should be punishable. As previously mentioned, Antoniani’s suicidal purpose had been formed in thorough autonomy: the legal asset in question is preserved by the conceptual poste- riority of Cappato’s contribution, which is of mere physical and material relevance. According to this rationale, contrast is found with articles 3, 13 (subparagraph 2), 25 (subparagraph 2) and 27 (subparagraph 3) of the Italian Constitution, whose conjunction expresses the principles of reasonableness and proportionality21 relat- ing to the offensiveness of the conduct. As regards to this argument, the abovementioned articles of the Italian Constitution are recognisable as the parameter of the review.

In order to determine the content of the norm which has been acknowledged as the object of the review, it is worth mentioning that article 580 p.c. covers a crime a fattispecie alternative: it gains relevance in presence

14‘All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions. It is the duty of the Republic to remove the economic and social obstacles which by limit- ing the freedom and equality of citizens, prevent the full development of the human person and the effective participation of all workers in the political, economic and social organisation of the country.’ Senate’s official translation of the Italian Constitution. 15 ‘Personal liberty is inviolable.’ Senate’s official translation of the Italian Constitution. 16 Full text is available at: https://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf [Accessed on April 17, 2020] 17 ‘Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection’. European Convention of Human Rights. 18 ‘Everyone has the right to respect for his private and family. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’. European Convention of Human Rights. 19 ‘No punishment may be inflicted except by virtue of a law in force at the time the offence was committed.’ Senate’s official translation of the Italian Constitution. 20 ‘Punishments may not be inhuman and shall aim at re-educating the convicted’. Senate’s official translation of the Italian Con- stitution. 21 Ragionevolezza e proporzionalità. 10 of three distinct conducts. The first two interfere with the authenticity that should inhere to the deliberative space of the suicide: both originating from the broader idea of instigation (istigazione), which posits the existence of an exogenous factor intruding in the causal unravelling of the suicidal purpose, they are respectively determination (determinazione) and strengthening (rafforzamento) of the aforementioned. The third plausible conduct within the sphere of action of article 580 p.c. is helping to commit suicide – i.e. any conduct which facilitates the act of suicide. The only judgment which may have provided the opportunity of teleologically interpreting the norm – which was introduced by the legislator in 1930 – was judgment 3147/1998 by the Italian Court of Cassation: nonetheless, the alternativity of the three conducts was at the time confirmed with no discerning scope between the broad area of instigation and helping to commit suicide.

With the support of the Italian Constitution, Italian statute law and European law, the Court of Assizes of Milan adduced a number of plausible motives in favour of article 580 p.c. unconstitutionality. The most immediate substantial vice resides in the different understanding of the act of suicide at the time in which the Penal Code was drawn up. The right to life was understood as having ontological autonomy, notwithstanding the deliberative space of its retainer: the individual. This argument suggests a fundamental peculiarity of the pre-constitutional legal order, which either through statute law and the Italian Constitution has been overcome: the ponderous paternalism which situated the State at the core of social life – and the citizen as a mere surrogate of this organic hypostasis. The ‘Copernican revolution’ which has reallocated the individual out of this heteronomous process of dependency, is testified by the appearance of the principio personalista and the inviolability of personal freedom – respectively article 2 and 13 – in the Italian Constitution. The idea of freedom from ‘arbitrary interference of the state’ acts as a substantial premise of other rights that participate in the composite texture of the Constitutional Charter: article 32, as an example, which grants the power of the individual to refuse ‘to be subject to any non-desired medical treatment’, enshrines the right to self-determination.

The Living Will Law, furtherly argued the Court of Assizes of Milan, grants the possibility for the individual to preventively dispose his/her wishes regarding il fine vita (end of life): it ensures the possibility for the ill to autonomously decide to end his/her sufferings by refusing any medical treatment. Since the Parliament has not legislated on the possibility for physicians to administer medications that would lead to the patient’s death, assisted suicide remains not covered by Italian statute law. However, the denial of a legal route to assisted suicide would imply the existence of a limitation to a right – that of consciously deciding when and how ending one’s life - which has constitutional foundations in article 2 and 13.

Another source evoked to corroborate the Court of Assizes stand is European law. Whilst in Pretty v United Kingdom the European Court of Human Rights had stated the impossibility to infer a right to die from article 2 of ECHR and the non-detrimental character of national laws which incriminate the helping to suicide with

11 respect to article 322 of ECHR, more recent case-law suggests a transition. Departing from the conceptual premises of articles 2 and 8 of the ECHR, the European Court of Human Rights has stated the following on the occasion of the case Haas v Switzerland (2011): ‘An individual’s right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of Article 8 of the Convention’.

The aforementioned are the arguments adduced by the Court of Assizes of Milan to legitimate the remission of the question to the Constitutional Court. The next paragraph will assess the bifold value – both substantial and procedural - of Order 207/2018, through which the Court examined the petitum of the a quo judge.

1.3 The Constitutional Court replies: Order 207/2018

Order 207/201823 suggested that the ‘Cappato case’ would be the bearer of remarkable novelties within the realm of the constitutional process. As pointed out by Antonia Baraggia24, the stance of the Constitutional Court that emerged in Order 207/2018 vividly highlights the previously cited ‘synthetic’ duty that the latter performs within the Italian legal system. The Constitutional Court was called to define the conciliatory scope that may arise out of antithetical phases given by the tension ‘between life and liberty, between self-determination and the protection of the most vulnerable, between the refusal of medical treatment and euthanasia’ and, on ampler institutional merits, ‘between the role of the judiciary and the legislative power’25.

In this chapter, the answers provided by the Constitutional Court with respect to Order 1/2018 of the Court of Assizes of Milan will be explored in their substantial significance. In the third chapter, plausible reasons will be addressed to explain the procedural solution chose by the Court in the specific case – i.e. the incostituzion- alità prospettata (deferred declaration of unconstitutionality).

It appears noteworthy to clarify that the Constitutional Court has not shared the thesis of unconstitutionality elaborated by the a quo judge nella sua assolutezza (in its integrity): as a matter of fact, it stated that the indictment of helping to suicide is not per se incompatible with the Italian Constitution. Quite the contrary: it finds a perduring justification in the latter, more in particular to the extent in which it protects individuals ‘from decisions that will cause them harm’. Of course, since this form of tutelage cannot be directly effective upon individuals who elaborate a suicidal purpose, ‘it creates a sort of protective belt around them, preventing third parties from colluding with them in any way’.

22‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. European Convention of Human Rights. 23 Full text is available at: https://www.cortecostituzionale.it/documenti/download/doc/recent_judgments/S_207_2018_EN.pdf [Accessed on April 17, 2020] 24 A. Baraggia, The Italian Constitutional Court on Assisted Suicide, Int’l J. Const. L. Blog, 2018, p.3. 25 Ibidem. 12

Here, with an argument that appreciates article 580 p.c. in its general legal significance rather than that of single fattispecie alternative, the Constitutional Court reiterates that assisting suicide in any form is an act that transcends the personal sphere – thus sparking a relatio ad alteros worthy of legal tutelage. In light of this conclusion, the Court – contrary to the a quo judge - clarifies the compatibility of a generic right to self- determination derived from articles 2 and 13 (subparagraph 1) of the Italian Constitution and article 580 p.c.: should the latter disappear from the framework of penal legislation, fragile individuals ‘could easily be induced to take their leave of life prematurely if the system allowed others to cooperate even only in the execution of their suicidal choice, perhaps for reasons of personal gain’. It is the duty of the Republic, the Constitutional Court insists, to preside over interferences that may obstacle the full development of individuals – and therefore their right of self-determination: in the contextual case, the above mentioned may be put at risk by the appearance of a vulnus in the abrupt absence of article 580 p.c..

The next consideration of the Constitutional Court inheres to the reasoning devised by the remitting judge with regard to the right to life. The conceptual operation brought forward in Order 1/2018 was inferring the plausible existence of a right to die – as well as its legal foundation - from the aforementioned; the Constitutional Court, however, brings the discussion back to the literary interpretation of the articles in question – article 2 of the Italian Constitution and article 2 of the ECHR. The Court clarifies the limited scope of action of the two, arguing that they second the right to obtain the protection ‘of the life of every individual, and not the diametrically opposed right to ensure that each individual may obtain assistance to die, from the State or from third parties’.

Notwithstanding these observations of the Constitutional Court with respect to the question of unconstitutionality as formulated by the Court of Assizes of Milan, the former acknowledges that ‘it is important to specifically consider situations like the one in the present case: situations that were unimaginable at the time when the challenged law was introduced, but which have been brought within its scope of application by medical and technological advancements, which are often able to save the lives of patients in extremely dire conditions, but not able to restore a sufficient level of vital functions’. This passage preludes to a phase of pars construens in which the Constitutional Court identifies a precise circumstance of assisted suicide – evidently influenced by the case at hand – with the following features: the ill is ‘affected by an illness that is incurable’; the illness ‘causes physical or psychological suffering’, which the ill finds ‘absolutely intolerable’; the ill is ‘kept alive by means of life support treatments’; the ill remains ‘capable of making free and informed decisions’. Under these circumstances, it would appear that the only pursuable route for the individual to accomplish his constitutional right to reject clinical treatments by preserving his own realm of dignity would be seeking help of a third person.

At this point, the Constitutional Court devises the possibility of interlocution with statute law – more in detail, as envisaged by the Court of Assizes of Milan and the parties during the previous stages of the trial, with Law 219/2017. In actuality, according to the legal possibilities set out in the aforementioned, the ill may benefit 13 from the possibility of interrupting life-sustaining treatments with the subordinate option of constant deep sedation that would slowly accompany him/her to death: this request is binding upon third parties also in the wake of constitutional case-law which enlightened the weight and value of informed consent (Englaro and Welby cases). In the realm of current Italian legislation on the issue, however, the above mentioned remains the sole possibility for a terminally ill patient to end his/her life.

As a matter of fact, Law 219/2017 does not allow doctors to administer treatments that could lead to patients’ death: the immediate consequence is that the preservation of the terminally ill’s own concept of dignity – a constitutional guarantee that he/she should dispose of – can, operatively, exclusively coincide with the mo- nadic solution offered by Law 219/2017. Other than restricting the realm of a subjective right to a unique translatory concretization, which legally constrains other objective transformations of ‘dignity’ from taking place, the terminally ill is forced to face a slower process that exacerbates his/her sufferance and that of his/her loved ones. The conceptual path of the Constitutional Court is evidently related to the contextual foundation of the question referred by the Court of Assizes of Milan: the vicissitudes of Fabiano Antoniani. Since he did not completely depend on a respirator, the binomial solution constituted by the interruption of life-sustaining treatments and constant deep sedation would have brought DJ Fabo to die in a considerable amount of time. The framework as here depicted did not respond to Antoniani’s idea of dignified death, nor was it deemed sustainable on an emotional level for his loved ones.

The Constitutional Court, following the fattispecie arose out of its narrow conceptualization of ‘terminally ill’, identifies a limited area of constitutional non-compliance of art.580 p.c.. Two are the logical-argumentative motives that subtend this observation of the Court: a) ‘if, indeed, the primary importance of the value of life does not rule out the duty to respect the patient’s decision to end his or her life by means of suspending healthcare treatments’ - the Constitutional Court argues by ennobling the provisions of article 32 of the Italian Constitution - ‘there is no reason for the same value to become an absolute obstacle, supported by criminal liability, to accepting the patient’s request for assistance in avoiding the slower decline – perceived as running contrary to their idea of a dignified death – which results from the suspension of life support devices’; b) in spite of the fact that terminal patients may be inscribed in the broader category of vulnerable individuals that the Republic should protect through adequate legal devices, the Constitutional Court identifies a procedural vice in the realm of impeded assisted suicide. If they are in full possession of their mental capabilities, ‘there is no clear reason why [they] should instead be considered to be in need of unyielding and indiscriminate protection against their own wills when it comes to the decision to end their lives with the help of others, when they consider this option to be more dignified than the aforementioned suspension of treatment.’

In light of the aforementioned conclusions, the Constitutional Court ascertained the in parte qua incompatibility of an absolute ban on assisted suicide with the constitutional right of self-determination disposable by the ill in the choice of therapies that he wishes to undergo. This right springs from articles 2, 13 and 32

(subparagraph 2) and its limitations – as provided by current legislation – contravene the principles of reasonableness and equality other than that of human dignity.

The decisional technique, which will be thoroughly analysed in Chapter 3, is that of deferred declaration of unconstitutionality. In similar cases, the Constitutional Court had applied the tool of sentenza-monito – i.e. a decision of inadmissibility of the question raised by the a quo judge followed by a ‘warning’ addressed to the legislator in order to foster the correction of the constitutional violation. However, the main consequence of this procedural technique would have resided in keeping the criminalisation of assisted suicide in place – notwithstanding the in parte qua unconstitutionality detected in the Order – while facing the risk of parliamentary inertia. Given the peculiarity of the sensible themes of the case, and by giving the legislator a fixed deadline to comply with its assessments, the Constitutional Court has suspended the a quo judgment and fixed a new hearing in eleven months’ time. The result of the above-mentioned would be Judgment 242/2019, object of discussion for the next two chapters.

Chapter 2 Judgment no.242/2019: substantial traits

2.1 Art. 580 of the Italian Penal Code: its rationale in light of the current constitutional framework With Judgment 242/2019, the Constitutional Court has confirmed the rationale that inspired Order 207/2018 and has found – as a result of arguments that will be further enucleated – a limited area of constitutional non- compliance for article 580 of the Italian Penal Code. The case at hand was of central importance in order to delimit a well-defined contextual basis for the substantial significance of the judgment – and the jurisdictional legacy derived therefrom.

As a matter of fact, within the same line of reasoning that had guided the rejection of several motives addressed by the remitting Court in regard to the ‘integral’ unconstitutionality of article 580 p.c., the Constitutional Court has furtherly elucidated the risks that would stem from normative vulnera should the provision have disap- peared from the legal system: light has been shed on the unflagging relevance of article 580 p.c. within the current constitutional framework.

Notwithstanding that, however, the Court has found that a bifold interlocution with the Italian Constitution and recent statute law suggests the emergence of a new set of rights for those who are terminally ill. Neither a teleological interpretation of article 580 p.c. nor the legislative efforts yielded in this peculiar policy dimension could cover the normative needs of those afore mentioned: situations similar to those cited by the Court in both Order 207/2018 and Judgment 242/2019 were, in light of scientific and clinical progress, unimaginable at the times in which the legislator had firstly approached the penal significance of suicide. Before proceeding with the analysis of Judgment 242/2019 and its implications, it is useful to enquire more thoroughly the position of article 580 of the Italian Penal Code in the current constitutional framework – enlightening its strengths and aporias.

Within the realm of the facts of the ‘Cappato case’, it was pointed out by the remitting court that the material help offered by the defendant – consisting in driving Fabiano Antoniani to ‘Dignitas’, the Swiss clinic in which the assisted suicide would have taken place – could not be inscribed neither in the fattispecie of determination, i.e. the original instigation to suicide, nor in that of strengthening the purpose, which was meticulously docu- mented as pertaining to the autonomous deliberative sphere of the terminally ill. In a conceptual framework as depicted above, the a quo judge questioned the lexical intransigency of article 580 p.c., raising doubts on the penal relevance of a mere executive facilitation following the personal decision of Fabiano Antoniani.

In order to frame the question on an ampler constitutional level, it is of upmost importance to consider the diverse levers that may contribute to several legislative stances on the matter of suicide. When assessing the legal significance of the latter, the dualism of two primary and supreme constitutional principles is of

16 immediate relevance: this dialectic is given by the interaction of self-determination, which is a profound expression of individual freedom, and human life – which ‘is the premise of freedom itself and somewhat its keeper’.26

One of the options that can be pondered by the legislator is that of remaining silent on the matter of suicide. This stance would not necessarily entail an ‘irresponsible’ attitude towards the issue: a choice taken ‘by sub- traction’ might represent the legislative willingness to reckon suicide as pertaining to a sphere of absolute subjective autonomy – one in which the State cannot interfere through any paternalistic instance. Such a solution would imply the plain acknowledgment of an authentic individual right27.

The Italian legislator has not chosen this route: it has positively expressed its idea on the matter. Article 580 p.c. does not punish suicide per se, even because of its impracticable coerciveness; rather, it aims at ensuring that the purpose derives from a genuine deliberation of whoever commits it. In other words, it condemns every form of conditioning and cooperation of third parties in the occurrence of the act; it respects the individual choice but persecutes those who contribute to its concretization. On this behalf, it is interesting to consider the lexical particularities of the provision: expressions such as instigation or strengthening of the purpose, which are usually constitutionally presided as being permissible in the realm of free thought and interchange of ideas, are vested in the penal system of exceptional significance solely when they concur to facts of criminal offences.

As suggested by Romano, ‘this peculiarity signals the legislative intention to disapprove of suicide and punish it despite the fact of being tolerated as a factual liberty that can hardly be countered in its concrete dimension’. Such a legislative stance stems from an ampler normative attitude towards human life as a good that cannot be freely disposed of by its owner: the individual can consent to the damage of several judicial goods, but not his life – as confirmed by article 579 p.c.28.

The person is clearly a value in itself and his/her quality is not in any way bound to an idea of state hypostasis subdued to the attainment of collective goals; however, he/she engages in intersubjective relations which shall not be exempted from bonds of reciprocal solidarity. Within this framework, article 580 of the Italian Penal Code is a fairly paternalistic norm – as it is the case in many other legal systems – which aims at ensuring that the decision integrally derives from the individual’s free will.

A similar standpoint, however necessarily qualified by the axiological attitude of the legislator and its evolution throughout time, justifies the presence of article 580 of the Italian Penal Code in the current constitutional framework.

Nonetheless, as noted by Santosuosso and Belloli, article 580 p.c. is characterized by some aporias that emerge

26 M. Romano, Aiuto al suicidio, rifiuto o rinuncia a trattamenti sanitari, eutanasia (sulle recenti pronunce della Corte Costituzio- nale), Sistema Penale, 2020, p.2. 27Ibidem. 28Ibidem, p.3. 17 once the ‘Cappato case’ is read to a comparative extent with previous case-law, the Constitution and other articles in the Penal Code. One which appears as manifest is that two individuals who have different professional status but engage in the same conduct face different consequences.29

With Law 219/2017 the physician is vested with a bifold chore: the duty to ensure that the ill avoids unnecessary sufferance and the bond to fulfil his/her willingness in case that he/she should refuse clinical treatments. To a certain extent, although within rigid schemes, Law 219/2017 has acknowledged a right for the patient to allow his/her own life to end under certain conditions and a duty for the physician to relieve the former from pain and misery. Given this departing framework, it is natural to envisage a relevant doubt: had Marco Cappato been a physician, would the conduct have assumed penal relevance or would it have been tolerated as effect of article 51 of the Italian Penal Code – with relation to article 32 of the Italian Constitution – as it had already happened in the ‘Welby case’, for having obeyed to the duty of relieving the terminally ill from further stages of pain? Lato sensu, driving a car with the ultimate goal of satisfying the patient’s will concerning his death could be acknowledged as an act of social solidarity – recurrent theme in the Court of Cassation’s words regarding the ‘Englaro case’. Should the private citizen who - although having no thetic duty to do so but driven by social responsibility - engages in the same action of a professional to free the terminally ill from an insufferable sufferance be criminally punishable? The possible inconsistency in the system appears vividly after observing that, as a matter of fact and under certain circumstances, the conduct of a private citizen and that of a physician may coincide in terms of social solidarity, psychological and material relevance, but result in profoundly different consequences: in the latter case it is perceived as deontological dutiful; in the former as criminally punishable30.

On this behalf, it is useful to recall the meaning of the passage in which the Court of Cassation expressed its opinion in the ‘Englaro case’: it was argued that those constitutional principles which are drawn from an inspirational source of solidaristic nature constitute the foundation of the physician’s duties. These principles define the obligatory premise of those urgent interventions which result in the best interest of the patient. It follows that the ‘clinical duty’ is just one of the plausible mundane specifications of the aforementioned abstract constitutional principles, which may also inspire different actions such as Marco Cappato’s one.

Another critical aspect within the realm of the doctrine of suicide in Italy is the asymmetry that takes place in two different conditions, i.e. he/she who can autonomously decide to end his/her life and he/she who can only accomplish his wish through the help of third parties. This material discernment gives rise to a substantial inequality when translated in the legal dimension – and thus comes into conflict with the content of article 3 of the Italian Constitution. 31

29 A. Santosuosso and P. Belloli, Paradossi nel procedimento Cappato. Tre aporie generate dall’art. 580 c.p. a proposito di aiuto al suicidio, Giurisprudenza Penale / Associazione Luca Coscioni, 2018, p.6. 30 Ibidem, p.7. 31 Ibidem, p.7-8. 18

The Court of Cassation, in the ‘Englaro case’, had already emphasised that the rationale to follow is one which overcomes any form of non-legitimate differentiation. At the time, the potential discrimination to erase consisted in the possibility/impossibility to express an informed decision regarding the end of life: the point of reference in order to assess Eluana Englaro’s willingness was traced back to a time in which she was capable of expressing deliberatively sound opinions on the issue. The condition of Fabiano Antoniani was, to the extent of deliberative consciousness, even less extreme: he was endowed with the necessary features that permitted a pondered decision on ending his life. However, even though Antoniani had unimpaired access to deliberation, he did not enjoy the same physical and motor freedom necessary to enact his suicidal purpose on concrete grounds. In spite of this striking limitation, from a judicial standpoint, he enjoyed plain and full personal liberty. Marco Cappato, if theoretically and materially free to assist Antoniani in the attainment of his purpose – which went beyond the possibilities granted by Law 219/2017, as not consistent with his idea of dignified death - was threatened by the criminal relevance of his behaviour according to the provisions of article 580 of the Italian Penal Code.32

Substantially, in the circumstance above depicted, both Antoniani and Cappato saw their personal liberty sig- nificantly qualified. Even though the intervention of the Constitutional Court through Judgment 242/2019 was directed at curtailing a precise area of constitutional non-compliance, many questions pertaining to the domain of assisted suicide in Italy remain unsolved in light of existing legislation.

2.2 Law no.219/2017: the emergence of its role as tertium comparationis

By many commentators, and rightly so, Judgment 242/2019 has been considered as the natural consequence of Order 207/2018: the Constitutional Court rejected the reconstructive thesis of the remitting court, i.e. that the incrimination of an action of support in committing suicide shall be considered as being contrary to the Italian Constitution per se and in its integrity.

However, after having acknowledged the legislator’s inertia to provide new normative grounds for the vulnera highlighted by the Constitutional Court in Order 207/2018, the latter proceeded to justify its proprio motu positive attitude towards the object of the review. The Court clarified that, in spite of the contingent one being a different technique, the rationale that inspired the chosen procedural solution was borrowed from that of double ruling: according to its significance in the constitutional process, the necessity to repair the identified vulnera has such an urgent character that it prevails over the discretion of the legislator in plainly regulating the matter. In the words of the Court: ’When confronted with a violation of the Constitution which cannot be resolved through interpretation – especially when it relates to fundamental rights – the Court is in any case required to provide a remedy’.

32 Ibidem, p. 9-10. 19

Nonetheless, as often observed by the Court itself, a full declaratory of unconstitutionality for article 580 of the Italian Penal Code would, with great probability, have resulted in an even greater regulatory gap. This risk was perceived by the Constitutional Court to the extent that the magnified vulnus could bring to a severely qualified preside over fundamental rights - even more in the case posed by further inertia of the Parliament.

After having reiterated the peculiar validity of this argument in criminal law, where regulatory gaps can be particularly harmful to the homogeneity of the legal order, the Constitutional Court has motivated the formal nature of its declaration of unconstitutionality – one of additive kind: ‘[…] This court can and must shoulder the requirement to prevent them [regulatory gaps], not confining itself to the categorical cancellation of the unconstitutional provision, but deriving the constitutionally necessary, albeit not containing constitutionally bound content, criteria from the coordinates of the current system, until such time as Parliament intervenes on the matter’. Two are the strikingly significant concepts that, in their lexical incisiveness, can be eradicated from this passage: the denial of the categorical cancellation of the norm, which testifies in favour of the only partial envisagement of a destruens behaviour by the Court; and, with the aim of immediately filling the normative gaps flowing therefrom, the option of deriving the necessary points of reference from the current system. This chiasmatic intertwining of voids and solutions is the recurrent theme in the unravelling of Judgment 242/2019, which identifies its tertium comparationis in Law 219/2017.

The Court then proceeded with a substantial enquiry on the reasons of its judgment as shouldered by the content of Law 219/2017. Foremostly, it once again shed the light on the well-delimited contextual basis of application: the declaration of unconstitutionality, clarified the Court, specifically and exclusively ‘concerns assisting the suicide of the individuals who could already otherwise allow their lives to end by renouncing the health treatments necessary for their survival’. This and other conditionalities arise out of a precise attitude embraced by the Constitutional Court when approaching sensitive ethical issues: as already happened in Judg- ment 27/1975 (concerning abortion), Judgment 96/2015 and Judgment 229/2015 (concerning artificial insem- ination), the exemption from criminal liability is subordinated to a pre-emptive control on conditions that may legitimate a particular conduct – above all in cases of perduring legislative silence. On this behalf, in Law 219/2017 and particularly article 1(5)33, special significance is assigned to the importance of informed consent: read in the broader domain of pertinence, this disposition aims at ensuring that the exercise of the patient’s self-determination takes place when assessing his/her willingness to receive or refuse treatments. The absence of informed consent, on the other hand, determines the arbitrariness of the medical process and its criminal relevance.

33 ‘Ogni persona capace di agire ha il diritto di rifiutare, in tutto o in parte […] qualsiasi accertamento diagnostico o trattamento sanitario indicato dal medico per la sua patologia o singoli atti del trattamento stesso’. 20

The reason that lies behind the insistence of the Court on article 1 of Law 219/2017 is given by the presence of a medicalised process through which the patient’s request can be evaluated: in light of the ‘enclosing’ normative needs of the Court, as previously put in, the presence of an existing point of reference in the system that gives plain clinical legitimation to the formulation and acceptance of the patient’s request is of vital importance.

Drawing from bioethical motives of Kantian tradition, namely respect for autonomy and its corollary, article 1(5) of Law 219/2017 puts the deliberative liberty of the ill at the core of the decisional process. To a certain extent, however, the article confirms the idea of the self-determined choice of ending one’s life as perceived in other specifications within the legal order: once the patient has clarified his purpose to interrupt treatments, the physician shall nonetheless let him/her explore every other alternative available before proceeding with the attainment of his/her desire. This entails, even if posterior to the respect of the patient deliberation in the lexical order of the physician’s duties, his responsibility to present every choice that shuns suicide.

The same stance is confirmed by the Court through the reiteration of the dispositions in article 2 of Law 219/2017, which guarantee the perduring possibility for the patient to access appropriate pain management treatment and the provision of palliative care as laid down in Law 38/2010. ‘This provision’, states the Con- stitutional Court, ‘can also be extended to the case at hand: when it is able to eliminate suffering, access to palliative care can often remove the causes of a patient’s desire to end their life’. This passage confirms the axiological consistency of the system, here furtherly corroborated by the Court: suicide, even in conditions of extreme pain and irreversible illnesses, is not contemplated as being as thoroughly desirable in the legal order as continuing one’s life, notwithstanding the criticality of conditions.

The Court proceeded by giving further practical relevance to the measures laid down in the judgment: as it had already been the case in Judgment 229/2015 and 96/2015, ‘the verification that conditions making assisted suicide lawful exist must nonetheless continue to be the province – pending the interpretation that the legislator may give – of public national health service facilities’. The aforementioned would also be the retainers, in procedural terms, of the preside over those motives which have inspired both the arguments of the remitting court and those of the Constitutional Court in assessing a limited area of constitutional non-compliance: public national health service facilities shall ascertain that, in implementing assisted suicide, any form of abuse of the vulnerable is avoided, the dignity of the patient guaranteed and suffering prevented from taking place.

The Constitutional Court is conscious of the inevitable partial nature of its judgment: the conditions enucleated by the dispositions of Law 219/2017, jointed with those that had already been laid out in Order 207/2018, are particularly significant in their interrelation with the case at hand. Its quasi-legislative intervention, although partially motivated by the parliamentary inertia, has a precise contextual premise which can hardly transcend its particular nature. This is the reason that brought the Court to assess the importance of an evaluation conducted on a case-by-case basis. In order to satisfy this requirement, and as a consequence of ‘the importance

21 of the value at stake [which] requires the intervention of a suitably expert third-party collegiate body’, territorially competent ethics committees have been entrusted with the chore of ensuring protection in particularly delicate situations. The uninterrupted regard for the tutelage of rights and values of the individual finds plain expression in the reasons that subtend the choice of ethics committees: they are understood to supervise, through a consultative role, over the relation that occurs between the individual and clinical trials of medicinal products or medical devices.

Confronted with another opportunity to clarify the limited scope in the ‘creative spirit’ of the judgment – as far as any quasi-legislative implication is appreciated – the Constitutional Court proceeded by explaining that excluding the punishment for assisted suicide under certain conditions does not give rise to ‘an obligation for physicians to provide such assistance’. Therefore, whether granting the aforementioned request or not would still be ascribed to an incompressible area of personal deliberation pertaining to individual physicians.

For what regards the effects of the declaration on a temporal dimension, the Constitutional Court left little uncertainty as to the validity of the procedural requirements afore mentioned solely in cases subsequent to the publication of the judgment in the Official Journal of the Republic: as a matter of fact, when considering cases previous to the entry into force of Law 219/2017, hardly would they ever meet the procedural conditionalities laid out by the Court in Judgment 242/2019. However, the newly found possibility for exemption of punishment shall be preserved even retrospectively: the latter, ‘with regards to previous cases […] will depend, specifically, on whether the assistance was provided in ways that, albeit differing from those mentioned, offered substantially equivalent guarantees’.

The ordinary judge would be vested with a considerable responsibility, namely that of assessing the conceptual proximity of the case at hand with the procedural requirements set out by the Constitutional Court in Judgment 242/2019. The case-by-case enquiry would be conducted along the lines that have inspired the rationale of the Court: the presence of ‘incurable illness, serious physical or psychological suffering, dependence on life-support treatment and the ability to make free and informed decisions’ shall be ensured and medically assessed. Furthermore, the applicant should have ‘clearly and unambiguously’ expressed his will as well as having been informed on alternative solutions and plausible consequences.

2.3 The final decision of the Constitutional Court: the limited area of constitutional non-compliance in article 580 of the Italian Penal Code and critical readings of the merits

Following the delimitation of the conditionalities that may lead to the exemption of punishment in cases of assisted suicide - in which, it is worth reiterating, the case at hand has played a shaping role - the Court proceeded by stating the reasons that suggested a limited area of constitutional non-compliance in article 580 of the Italian Penal Code. It is found unconstitutional ‘as it violates articles 2, 13 and 32(2) of the Constitution, insofar as it does not exclude punishment’ for those who participate in the concrete attainment of suicide – whose constitutive purpose has been independently and freely elaborated by the incurable ill, when the latter is ‘fully capable of making free and informed decisions’ and ‘kept alive by life supporting treatments’. The subjective perspective is mildly reaffirmed in the declaratory when reference is made to the patient’s own perception of intolerable physical and psychological suffering, however immediately mitigated by the institutional hint to the verification of ‘conditions and method of implementation’ conducted by a public national health service facility after having heard from the territorially competent ethics committee.

As it had appeared clear from Order 207/2018, the Constitutional Court had no intention to discard article 580 p.c. from the Italian legal system: the moderately paternalistic character of the provision is acknowledged in its consistent and perduring validity in the normative scheme. Notwithstanding the negative stance that the Court has taken when confronting the holistic purpose of the petitum, the latter has proceeded by pondering the judgment in light of the principles of equality and reasonableness: the aforementioned, together with the provisions of article 2, 12 and 32 of the Constitution, have brought to a partial review of article 580 p.c..

As noted by Cupelli34, the abstract validity of life as a constitutional good continues to guide the rationale of the Court: the dispositions of the article object of the review are not incompatible with conventional norms and the spirit of the Constitution. Independently from the axiological orientations which guided the intention of the legislator in 1930, the Court found that the system of criminal law should embrace the duty to protect the most vulnerable ones from an extreme and irreversible choice – which, if cannot be prevented in absolute terms, shall be at least free from interferences of any kind.

On the other hand, if article 580 p.c. abstract validity is perduring, its range of concrete applicability seems to face some criticalities. Inspired by the praxiological nature of this reasoning, the Court has therefore performed a ‘surgical cutout’ of the petitum, highlighting the vulnus which leaves the case of those situations unimaginable at the time of the formulation of the article normatively uncovered. The suicidal purpose which shaped the judgment of the Court is considerably different - in its founding nature – from the ‘spiritual disease’ which the legislator had meant to counter and discourage in 1930. In the clinical framework considered by the Court,

34 C. Cupelli, cit., p.45. 23 patients often mature the suicidal purpose after having engaged in diverse practices – even experimental – to continue their life.35

A critical appreciation of the reasoning of the Court leads to some prima facie doubts on its merits. On this behalf, Romano36 has revealed the ‘optical effect’ which subtends the analogy between the dimension of refusal of treatments and that of the end of life – here understood as assisted suicide. The only illusive character of such isomorphism resides in the assumption that the proximity of the two is not conceptual but contextual: while it appears grounded in instances such as Antoniani’s, where refusing cures can mechanically imply death, it loses any foundational thoroughness if understood in purely absolute terms. On the latter case, the chronological and conceptual distance between the two stands out as quite immediate: on one hand, there is the possibility for the individual to – even anticipately - dispose his/her desires on treatments as a constitutionally and normatively granted right; on the other, the event of death as self-imposed. Law 219/2017, which constitutes the salient tertium comparationis in the reasoning of the Constitutional Court, did not per se norm the specificities of suicide; its regulative field of reference was a broader (and distinct) one, i.e. the end of life. This structural feature may explain the conceptual grinding which hinders the analogy – and the causative relation depicted in the Judgment – between refusal of treatments and assisted suicide.

Another issue which stands out in its potential development is the one linked to the so-called slippery slope argument (china scivolosa). When providing an evaluation of the merits of the case, part of the members of the National Committee of Bioethics (CNB)37 expressed their disappointment on behalf of the solution foreseen by the Constitutional Court. Within a set of reasons which counter the legalization of assisted suicide as laid down in Judgment 242/2019, particularly worthy of attention are those which warn on the risks of a nearly automatic normative passage to euthanasia. Reference is made to those legal orders in which the legalization of assisted suicide has provoked a de facto tendency in the system to reckon progressively less conditionalities to access the practice – instances in which its area of availability was enlarged to comprehend psychologically fragile individuals or non-self-sustaining elderly, paving the route for social and legislative acceptance of euthanasia.

In order to convey juridical legitimation to this line of reasoning, a guiding principle which also enlightened the rationale of the Court was mentioned, i.e. vulnerability. It was argued that permitting the material participation of a third party in the finalization of the conclusive act, as it would take place in euthanasia, would undermine the medical principle of curing and taking care and disrespect the vulnerability of the patient –

35 Ibidem. 36 M. Romano, cit., p.7. 37 Comitato Nazionale di Bioetica, Riflessioni bioetiche sul suicidio medicalmente assistito, 2019. The members to which implicit reference is made are: Amato, D’Agostino, Dallapiccola, Di Segni, Garavaglia, Gensabella, Morresi, Romano, Palazzani, Scaraffia, Sargiacomo. 24 whose moral relevance shall be honoured by psychological aid and palliative cures instead of the mere offering of technological or non-technological means to end his/her life.

In a less axiologically founded fashion, but nonetheless sharing the same doubts on the slippery slope argument, Romano has noted how the language of the Court could constitute a plausible prelude to the legalization of active euthanasia in future times. When possible legislative traits were laid down in the Judgment, a negative remark seemed to arise when observing that the legal system does not foresee any possibility for the physician to provide death-inducing treatments for the terminally ill. The absence of this feature was linked to the auspice that Law 219/2017 would be modified so ‘that this too becomes an option under the framework of the rela- tionship of care and trust between patient and physician’. In spite of the fact that the Court remained within the domain of assisted suicide, Romano points out, it also seemed to touch upon the consented murder (omicidio del consenziente) which – although adjacent – pertains to a different and distinct criminal dimension presided by article 579 p.c.. The Constitutional Court dictum appears to enter the domain of active euthanasia ‘through an extension which would constitute an undue step forward’.38

On the other side of the spectrum, some commentators have signalled the qualified and partial validity of Judgment 242/2019, shading light on various limitations which may hinder the effective availability of the practice and, thus, the concrete attainment of the newly found right for the terminally ill. On this behalf, Cupelli explains how already in Order 207/2018 the Constitutional Court had suggested to find a legislative solution to the issue of conscientious objectors in the medicalised process which would facilitate suicide. Nonetheless, the issue has been scaled down in Judgment 242/2019: no duty coerces the physician to satisfy the request of the terminally ill should he/she wish to proceed with the practice in the manners laid down by the Constitu- tional Court.

If, under the conditionalities afore mentioned, it is of upmost importance to second the autonomous self-determination of a patient who desires a dignified ending to his/her unbearable suffering, how can such argument be paired with the absence of a right to obtain the assistance of at least one physician in the relevant public health facility? The doubt presented by Cupelli resides in the risk that the unarguable step forward made by the Constitutional Court might anchor in the purely formal and conceptual dimension: the newly found right is de facto subordinated to the willingness of single physicians to comply with requests of the terminally ill.39

If the afore mentioned reasoning ascertained some limitations in the concrete accessibility of the right, there are some commentators who have also highlighted some substantial and conceptual vices. Within those, the observations advanced by Tripodina40 seem to be of peculiar interest. Although not explicitly mentioned in the merits adduced by the Court, a shaping constitutional principle appears to be that of

38 M. Romano, cit., p.10. 39 C. Cupelli, cit., p.50. 40 C. Tripodina, La “circoscritta area” di non punibilità dell’aiuto al suicidio – Cronaca e commento di una sentenza annunciata, Giurisprudenza Italiana, Corti Supreme e Salute 2/2019, p.9-10. 25 equality/reasonableness. However, Tripodina argues, such legitimating principle may engender a series of difficulties in maintaining the tightly delimited area of non-compliance laid down in Judgment 242/2019. Why could not the person who is not bound to life-sustaining treatments – but terminally ill - gain access to practices of assisted suicide so as to satisfy the choice of his/her own modus moriendi? Or, in addition, why could not the person who is so much impaired that he/she cannot perform the conclusive act – using his/her lips to push the plunger of the syringe – be helped in the attainment of his/her final desire? Are the discerning criteria of the presence/absence of life-sustaining treatments or of killing/letting die sufficiently robust to motivate dis- tinctions in the domain of terminally ills? Tripodina finds that, eventually, the boundaries assessed by the Court are destined to be overcome in light of the principle of equality/reasonableness.

Chapter 3

Judgment no.242/2019: procedural traits

3.1 The typology of decision: a description of interpretative, manipulative and exhortative judgments

As clearly stated by Zagrebelsky and Marcenò, there is a noteworthy discerning point to be appreciated when discussing manipulative and interpretative judgments by the Constitutional Court41. The latter refer to those decisions that stem from an ascertained difference between provision and norm, namely the legislative act per se as laid down by the Parliament and the relevant meaning conferred by the ordinary courts in the attainment of their interpretative powers. Interpretative judgments may be both of acceptance and dismissal. In the first case, the challenged provision is deemed to be unconstitutional through a peculiar line of reasoning. It is reckoned that several meanings, thus norms, may be paired with the aforementioned: when one of them – challenged in the order of deferral - is not in pursuance of the Constitution, the law is declared to be unconstitutional.

In the instance of interpretative judgments of dismissal, on the other hand, the Constitutional Court quashes the challenge as it clarifies that the provision should be read as resulting in norm X – pursuant to the Consti- tution – and not in norm Y, the one proposed in the order of referral. It shall be noted, however, that judgments of dismissal only yield inter partes effects: in other words, their future concrete application depends on whether ordinary courts follow the route envisaged by the Constitutional Court. Interpretative judgments of dismissal have a persuasive – not strictly legal42 - value that is freely available for appreciation by those who have to interpret the law.

Nonetheless and to a certain extent, it could be argued that they also have a fair orientating function for the a quo judge when assessing whether the question is clearly unfounded or not43. If the a quo judge follows the opinion of the Constitutional Court, then nulla quaestio. But, should the latter adopt the interpretation previously discarded by the Court, the necessity to remit the question once again would rise. In this case, a way may be paved for the so-called technique of double ruling, where the Constitutional Court delivers an interpretative judgment of acceptance following a previous decision of dismissal. In this understanding, interpretative judgments of dismissal do not yield a direct constraint (excluding from the legal system the norm deemed to be unconstitutional – which however is not annulled) but an indirect one, as a requirement to remit the question arise every time an ordinary court wishes to apply the previously discarded meaning to a law44.

41 G. Zagrebelsky, V. Marcenò, cit., p.229. 42 A. Pizzorusso, Le motivazioni della Corte Costituzionale: comandi o consigli?, Rivista trimestrale di diritto pubblico, 1963, p.351. 43 G. Zagrebelsky, V. Marcenò, cit., p.223. 44 V. Crisafulli, Ancora delle sentenze interpretative di rigetto della Corte Costituzionale, Giurisprudenza costituzionale, 1960, p.91. 27

Summing up, three gradually ordered decisional tools available to the Constitutional Court can be appreciated in the domain of interpretative judgments. Firstly, the interpretative decision of dismissal: the Court proposes its interpretation and establishes an own precedent with the aim of orienting the judicial attitude on that behalf. Secondly, the interpretative decision of acceptance: the Court adopts it so as to complete the technique of double ruling, notably when it wishes to rule out an unconstitutional norm however leaving the relevant law effective. Thirdly, the pure decision of acceptance: the Court rules out any form of potential misunderstanding regarding the meaning of a certain law by eliminating the latter in its integrity – with a corollary of legislative void related risks that may arise from such a stance.

Different from interpretative judgments are manipulative ones. Notwithstanding that, to a certain extent, it could be argued that they derive from the former: the possibility to provide judgments on norms – thus decou- pling them from provisions – has historically conduced the Constitutional Court to consider other procedural paths which transcend the mere possibility of choosing between multiple meanings. This motive fostered the need to explore manipulative decisions: their founding scope is transforming a law rather than opting for its elimination or an alternative interpretation.

Once the question of unconstitutionality has been considered founded, should the Court approach the issue in a manipulative understanding, it would declare its illegitimacy by redefining in various ways its normative bearing. The pronouncement has to do with the text of the provision but without destructive or interpretative purposes – rather with reconstructive ones45. There are three types of manipulative judgments which stem from three different areas of employment.

The first one is that of judgments of partial acceptance. Through this procedural expedient, the Constitutional Court tackles a circumscribed area of the provision – namely the one which it considers not in pursuance of the Constitution – thus leaving the remaining parts plainly effective. The reason which subtends the employment of this device stems from the manner in which laws are structured. A pure judgment of acceptance could be delivered when each norm derives from a single provision: in such instance, striking down the whole law may constitute a proper solution. However, when different norms stem from different provisions – all partici- pating to the formation of a single disposition – the sole foreseeable route is selecting those which yield unconstitutional effects. The guiding rationale of decisions of partial acceptance is utile per inutile non vitatur, i.e. avoiding striking down legislation needlessly46.

Before the introduction of judgments of partial acceptance in the domain of the constitutional process - around the 1960s - the same result was attained through pure decisions of acceptance: it was supposed that two inter- pretations of the challenged provision existed - one extensive; the other restrictive - and the law was declared

45 Zagrebelsky and Marcenò suggest the employment of reconstructive rather than manipulative. The lexical and figurative pow- erfulness of the latter was motivated by the historical function of clarifying the question when debating on its judicial properness within the constitutional process. 46 G.F. Ferrari, cit., p.204. 28 unconstitutional in light of the extensive reading. The decisions of partial acceptance substitute the idea of an alternative vision of the meanings of a law with a progressive understanding of the latter: the unconstitutionality resides in those provisions which overcome the constraints posed by the Constitution.

The second one is that of substitutive judgments. This tool is well explicative of the creative possibility that the Constitutional Court may at times enjoy. The area of constitutional non-compliance is here identified in the part of a challenged provision which yields a certain norm rather than another: in this case, the Court itself performs the substitution as a preferable solution to the mere elimination of the law. The manipulative - or reconstructive - character of this procedural device is clear. If the Court opted for a decision of partial acceptance, a legal vacuum would arise that might feed back into the system with augmented uncertainty; through the substitutive decision, however, there is a viable manner to prevent this unfortunate circumstance from taking place. In these instances, the Court usually declares a law to be unconstitutional because – or in the part in which – it contains a certain provision rather than another. Structurally, these pronouncements could be summed up in this understanding: a declaratory of unconstitutionality for what the law says and an additive decision for what it does not say47.

The third one is that of additive judgments. As observed by Zagrebelsky and Marcenò, their conceptual locus of departure is quite the opposite of that legitimizing partial acceptance decisions: as a matter of fact, additive judgments are employed when the law has less normative bearing than the one it shall have pursuant to the Constitution. The Court usually detects the lacking norm within the scope of action of the provision and it adds the missing pieces to the statute. It intervenes to the extent that it declares a law to be unconstitutional in so far as it does not cover certain normative spaces. What is strictly unconstitutional, thus, is not an explicit negative provision integrating the law (as it could be a limitation or an exception) – quite the contrary, it is the mere silence of the provision on a certain theme. Many have interpreted additive judgments as the Court de facto actively legislating: this point is significant in light of the declaratory of unconstitutionality in Judgment 242/2019 and the debate flowing therefrom.

Generally, the issues concerning manipulative judgments, around which numerous debates have historically revolved, regard their capacity to interfere with the existing legal order by introducing new norms – apparently a prerogative which shall solely reside in the domain of the legislative field. Even though additive judgments appear as the prima facie main character of such enquiry, it shall be noted that the milder means as well (where the Court exerts its negative-eliminative duty, i.e. decisions of partial acceptance) can result in the production of effective substantial legislation. It might be that striking down a particular law could lead to a provision differing in spirit and telos from the ones the legislator had considered when redacting it. These considerations lead to a fundamental difference: those interventions on the law which have a confirmative value with regards

47 G. Zagrebelsky, V. Marcenò, cit., p.232-233. 29 to the Constitution (admissible) and those who modify to the extent of being considered a qualitative choice of the Constitutional Court (inadmissible)48.

The diatribe characterizing the problem of additive judgments is particularly vivid due to the highly creative intention behind the aforementioned. One of the main procedural expedients employed by the Constitutional Court to convey judicial legitimation to such operations resides in the employment of the equality principle. As previously mentioned, the object of a declaratory of unconstitutionality of additive character is not the textual relevance of the law nor its interpretation: rather, it is the implicitly omitted norm. The Court reasons through the so-called a contrario method: departing from an instance regulated by a provision that is part of the challenged piece of legislation, the exclusion of another case is inferred and considered49. The latter should, according to constitutional reasons, be normed by the same law. What is declared unconstitutional is therefore the exclusive implicit norm: to this extent, the newly enlarged explicit norm will be extended to cases previously left outside its scope for action. Here lays the employment of the equality principle: through what Elia has called the conversion of sign (conversione di segno)50, the instance that had been unfairly excluded from the area of the norm is included rightly because its reason of exclusion had violated the equality principle51. However, when the judgment of unconstitutionality is not only bound to this relational rationale but has also substantive constitutional directives that inspire the correction of the legislative lacuna, the mere appeal to the equality principle is not sufficient to motivate an additive judgment by the Constitutional Court.

Further limitations on the employment of additive decisions are posed by the nature of the lacuna itself, as observed by Zagrebelsky and Marcenò. When the lacuna is apparent, i.e. when it can be integrated via means already present in the legal system (either constitutional or ordinary), the addition is permitted. On the other hand, when the lacuna is real, i.e. when it cannot be completed by following the afore mentioned process, every addition shall be excluded from the realm of the Courts’ possibilities. This distinction gives rise to a further differentiation: the inadmissibility of the question in light of the discretional space of the legislator and the employment of principle-based additive decisions (di principio).

The real lacuna often coincides with an ideological lacuna. In this case, choosing to rule out a question of unconstitutionality as inadmissible - in light of the discretion of the legislator - has been acknowledged within the established praxis of the Court. In cases of ideological lacunas, the very object of unconstitutionality cannot be found as the relevant general discipline has not been developed by the legislator yet. Should the Court embark in an additive effort on this behalf, it would engage in a purely legislative chore – thus distancing itself from its role as ex post constitutional preside. At times, the real lacuna may not coincide with an ideological one: namely, it is the case in which there could be a law to be challenged in the first place in the deferral order;

48 Ibidem, p.235. 49 Ibidem, p.237. 50 L. Elia, Le sentenze additive e la più recente giurisprudenza della Corte Costituzionale, 1984, p.305. 51 On this reconstructive hypothesis, C. Mortati, Appunti per uno studio sui rimedi giurisdizionali contro comportamenti omissivi del legislatore, Foro Italiano, 1970, V, p.157. 30 it could even be potentially unconstitutional; but there is not an available norm in the system that could accompany the declaratory of unconstitutionality. In this instance, the Court may decide, as in the previous case, to rule out the question as inadmissible in light of the discretion of the legislator.52 This particular instance highlights the presence of one of the leit motives that stand out when assessing the procedural traits of Order 207/2018 and Judgment 242/2019: the so-called rime obbligate (prescribed verses)53.

As put it by William Nardini of Yale Law School, the metaphor of rime obbligate ‘perhaps works better in English this way: judges may not rewrite statutes in free verse. A judge may only add those clauses that the Constitution requires. When the choice among a variety of solutions depends on a discretionary balancing of values, the Court has held that it may not try to fix the statute’54. In order for the Constitutional Court to remain within the borders prescribed by the rime obbligate, ‘the norm chosen in the realm of the additive decision shall not derive from an inadmissible instance of self-legislation, but rather from an interpretative effort whose content is simply declared – not created – by the Court’55.

The Constitutional Court cannot, in light of what has been previously presented, complement the ablative and pars destruens of its decision with a reconstructive phase that is not thoroughly legitimated by its powers. To face this apparently insurmountable issue, the Court has introduced within its procedural praxis the so-called principle-based additive decisions (di principio). In this case, the declaratory of unconstitutionality is not followed by the (piece of) norm theoretically capable of filling the lacuna, but rather by one or more constitutional principles that have been infringed by the law which has been declared unconstitutional. Contrarily to the more usual rule-based additive decision (di regola), the principle-based one cannot be accounted as being self- applicable, ‘as it is not per se sufficient to integrate the legal order pursuant to the Constitution’56. Through the principle-based additive decision, the Constitutional Court does not hinder the legislative discretion of the Parliament – whose (freely determined) future intervention shall nonetheless take into account the principles signalled in the declaratory – and merely orients ordinary judges, who remain responsible for the individuation – when possible – of a rule in the contingent case.

Another type of decision which is worth mentioning in the realm of judgments is the exhortative one (sentenze- monito). In this instance, the Court faces a norm which has been challenged and is unconstitutional in abstract; however, at least on a primary reading, it quashes the content of the deferral (technically through a judgment of dismissal) by arguing for the exemption of the relevant provisions from constitutional adjudication, and at the same time inviting the legislator to act on the statute through a warning (monito). Should the Parliament engage in behaviours of inertia, the Constitutional Court could – but in sentenze-monito there is no binding mechanism – follow up with a judgment of acceptance which would confer further and concrete evidence to

52 G. Zagrebelsky, V. Marcenò, cit., p.238-239. 53 The procedure has been so described by Vezio Crisafulli, one of Italy’s most eminent constitutionalists. 54 G.F. Ferrari, cit., p.205 and Constitutional Court Decision 15/1982. 55 G. Zagrebelsky, V. Marcenò, cit., p.236. 56 Ibidem, p.244. 31 the observations of the Court: the warning would transcend its merely monitory value and assume objective character. Notwithstanding that, Zagrebelsky and Marcenò note how the Constitutional Court itself has seldom interpreted the silence of the legislator – after the warning – as signalling a legitimating expedient to intervene: often the Court tends to re-examine the question once it is raised during a new proceeding rather than actively completing the initial monito in the domain of the same case57. With Order 207/2018 and Judgment 242/2019, the Constitutional Court has created a series of exceptions to some of the aforementioned motives constituting the praxes of these decisions: curiously enough, the behaviour of the Court in the ‘Cappato case’ has been acknowledged as founding a new and independent typology.

3.2 The technique of a new double ruling: detection of the vulnus and creative judgment

As previously suggested, the formal novelties which the ‘Cappato case’ has brought about are of considerable relevance. The ordinary judges, the Constitutional Court, the (absent) Legislator and the constitutional law per se have given rise to what has been called by Epidendio an apocalypsis cum figuris58 – where these characters jointly announce the thorough transformations and new frontiers that the doctrine will enquire in future times. If to a substantial extent the most striking feature resided in the creation of an ad hoc procedure which excludes criminal relevance for assisted suicide, the procedural unravellings of Order 207/2018 and Judgment 242/2019 suggest the rise of a new monitory praxis which enriches the realm of solutions available to the Constitutional Court.

The strategy that has been hinted at, defined as incostituzionalità prospettata by the pro tempore President of the Constitutional Court Giorgio Lattanzi59, aims at overcoming those ineffective features characterizing the customary appeal to the classic exhortative device employed in past occasions, i.e. the double ruling. When certain subjective juridical conditions are reckoned to be urgently worthy of protection, the technique of in- constitutzionalità prospettata allows the Court both to plainly govern the time span within which the final decision takes place and – more importantly – to discard the aleatory character of the aforementioned.

As widely acknowledged in the aftermath of Judgment 242/2019, the relevant decision can be reckoned as an important step towards the definitive abandonment of rime obbligate: according to the latter, the manipulative efforts of the Constitutional Court had to be subordinated to the presence of precise conditions - namely the existence of a constitutionally-obliged solution and the – logically implied – absence of discretional scope for action for the Legislator. Lacking the former criterion, the Court could solely declare the question inadmissible in light of the arbitrary space of the Parliament – which had to be guarded for the sake of balance of powers –

57 Ibidem, p.253. 58 T. Epidendio, La sentenza della Corte Costituzionale n.242/2019: apocalypsis cum figuris, Giudicedonna.it, 2-3/2019. 59 Other idiomatic solutions have been explored: ‘decisione interlocutoria’ (interlocutory decision) by M. Massa in Una ordinanza interlocutoria in materia di suicidio assistito. Considerazioni processuali a prima lettura, Forum, Quaderni Costituzionali, 1/2019 or ‘ordinanza di illegittimità costituzionale accertata’ (order of ascertained constitutional illegitimacy) by M. Cecchetti in Appunti diagnostici e prognostici in vista della definizione del giudizio costituzionale sul caso Cappato, Federalismi.it, 6/2019. 32 and only optionally provide a warning to the Legislator in order to foster and suggest its intervention in the normative arena60.

In opposition to the afore cited procedural scheme, the Constitutional Court has embraced an innovative solution which confers new shape to the guise of double ruling. This unprecedented technique can be understood to be organised in two stages. Firstly, in presence of an ascertained unconstitutional provision, which however has no readymade constitutionally-obliged complementing feature in the legal order, the Court does not declare the question to be inadmissible: rather, it adjourns the hearing, ascertains the unconstitutional character of the provision through the interim decision, temporarily suspends its applicability and obliges the legislator to intervene in the time span conceded. Secondly, in instances of legislative inertia – as it was the case in the Cappato proceeding – the Court intervenes through an additive judgment (provision A is illegitimate in so far as it does not envisage content B). Notwithstanding the attempt of the Court to emphasise the continuity between classic instances of double ruling and the one in the ‘Cappato case’, two main procedural differences stand out: Order 207/2018 is not a declaratory of inadmissibility of the question followed by a caveat to the Legislator, but it is essentially a decision that ascertains the unconstitutionality of the relevant provision; the warning provided to the Parliament is not aleatory but has a defined time span in which its intervention shall take place61.

Pescatore has highlighted the interrelated nature of substantial and procedural traits in the ‘Cappato case’. Departing from the reckoning of a limited area of constitutional non-compliance, in response to which the Court has argued in favour of normative solutions that safeguard the fundamental freedom to decide when and how approaching each own’s end of life, the need to reconstrue the objective scope of action of the challenged provision is inferred. Since the norm is part of the penal order - and converses with the highest constitutional goods – little doubt may arise on the urgency to intervene should a question of constitutionality on its behalf appear founded. On the same line of reasoning, an ascertained constitutional illegitimacy of the relevant norm cannot – in light of its importance and that of the goods entailed in its provision – be indeterminably dilated nor can it incur in uncertainty with regards to the relevant declaratory62.

The afore mentioned premises suggest the need to explore an alternative procedure that considers the structural drawbacks of the customary double ruling. This rationale explains the choice to deviate from the latter in two ways previously appreciated, i.e. suspending the proceeding and refusing the employment of the judgment of dismissal as a prelude to a plausible and non-bounded declaratory of acceptance in future times. With regards to the first variation, the Court has found that its reasonability could be grounded on the importance of the constitutional goods at stake and on fact that the normative scheme would not have been fully unprepared to

60 T. Epidendio, cit., p.2. 61 Ibidem, p. 2-3. 62 R. Pescatore, Caso Cappato-Antoniani: analisi di un nuovo modulo monitorio, Osservatorio Costituzionale AIC, 1/2020, p.347. 33 receive the expected legislative evolution63. The second alteration could be justified through an argument that follows the former: given the ascertained prominence of the question – and the unconstitutional traits emerged in the drafting of Order 207/2018 – the Court has chosen to dispose itself of the possibility to fill the vulnus in case of parliamentary inertia. As a matter of fact, neither the unchanged law nor the inadmissibility of the question could have been wished for once the peculiar features of the case and the values involved had been clarified64: the customary scheme of sentenze-monito would not have given rise to a proper legal constraint for the Court to express itself on the challenged provision in the realm of the same proceeding. Thereby, the Constitutional Court transcends the borders of the double ruling and introduces a temporal expedient of rit- ual6566 which ennobles the ontological status of the warning.

In this newly created formal dimension, the warning inherent in the first procedural step overcomes its mere exhortative significance and essentially awakens questions of constitutional validity on the relevant case – giving rise to a duty to complement the caveat other than simply eliciting the Legislator. Postponing the final judgment has the exact function of suspending medio tempore the applicability of the contested norm. The bifold structure of ascertained unconstitutionality/suspension of the proceeding seems per se to suggest the expectancy of a follow-up: thus, should the Parliament ignore the warning, the intervention of the Court would find logical legitimation in the consistency of this reasoning67. As put in by the Constitutional Court itself, it is rebus sic stantibus bound to complement the ascertainment of unconstitutionality: the main novelty brought about by the technique of incostitutzionalità prospettata resides in the qualitative nature of the warning, which has a strong substantial character and does not solely serve the purpose of notifying the critical content to the Parliament.

Faraguna68 and Fiano69 have observed how the new procedural tool devised by the Constitutional Court can be understood as sharing some elements of the German BVerfG’s Unvereinbarkeitserklärung. Introduced on a case-law basis and partially turned into positive law in 1970, this method provides for a deferral of the effects stemming from a declaratory of unconstitutionality – thus allowing the Legislator to act on the relevant provision with the aim of rendering it pursuant to Constitution70. The main benefit of this procedure resides in the possibility to circumvent the nullity-invalidity principle: even if declared unconstitutional, the provision

63 Given the presence of Law 219/2017, treated by the Court as a tertium comparationis. 64 As already laid down by the Constitutional Court in the 11th conclusion on points of law in Judgment 242/2019. 65 R. Pescatore, cit., p.348. 66 Barbara Pezzini has noted how the decision is essentially one but rendered in two moments, as opposed to the classic double ruling. (B. Pezzini, Dal caso Cappato al caso Fabiano Antoniani e ritorno, note 67). In light of this observation, what was only ex- post identifiable (customary double ruling) is now straightaway clear from the first procedural step (the monitory order) as found by Pescatore. 67 R. Pescatore, cit., p.352-353. 68 P. Faraguna, Constitutional Paternalism and the Inability to Legislate: The Italian Constitutional Court’s Decision on Assisted Suicide, Verfassunblog, 2019. 69 N. Fiano, The Italian Constitutional Court on Assisted Suicide—Court Order no. 207 of 2018: A Particular “Species” of the Ger- man Incompatibility Ruling?, Int’I J. Const. L. Blog, 2018. 70 M. D’Amico, La Corte costituzionale e i fatti: istruttoria ed effetti delle decisioni, La Corte costituzionale e i fatti: istruttoria ed effetti delle decisioni, Editoriale Scientifica, 41/2018. 34 continues to exist within the legal order until legislative revision is undertaken. The latter can either gain retroactive validity or be limited to ex nunc effectiveness – therefore not comprising previous situations under its renewed scope of action.

Within BVerfG’s three solutions concerning incompatibility rulings, the ‘pure’ one71 appears to be functional to assess analogies (and differences) with the new procedural tool employed by the Italian Constitutional Court in the realm of the ‘Cappato case’. Generally, the most striking parallelism can be found in Unverein- barkeitserklärung establishment of a defined deadline which binds the Legislator to approach the challenged – and already ascertained as unconstitutional – law within a certain time span. In Order 207/2018, the Court had further clarified that the provision had to be considered inapplicable in the time frame between the decision and the adjourned hearing: this solution was envisaged in light of the peculiar characteristics of the case and the values entailed. In the ‘pure’ form of BVerfG’s incompatibility ruling, a similar device provides for the same solution – namely Anwendungssperre.

However, an important difference can be appreciated when comparing the procedural tool of the Italian Con- stitutional Court in the ‘Cappato case’ and the Unvereinbarkeitserklärung. This discrepancy is provided by the different nature of the first procedural moment: in the German incompatibility ruling, it consists of a proper declaratory of unconstitutionality, while Order 207/2018 is in itself a mere order of adjournment of the constitutional process. In the Unvereinbarkeitserklärung instance, even if the law is not null nor void yet, it is nonetheless formally declared unconstitutional; in the first procedural step of the ‘Cappato case’, instead, the partially illegitimacy of the norm is substantially – but not formally – ascertained. As further noted by Paris72, the successfulness of Unvereinbarkeitserklärung in Germany is provided by the fact that the Legislator tends to answer in due time to the caveat of the Constitutional Court. Whether this mechanism can prove fruitful in Italy as well is a matter of debate.

The final decision of Judgment 242/2019, which could be included in the broad categories of judgments of acceptance, has a double value: it boldly faces the horror vacui following the device of the declaratory of unconstitutionality and clarifies the meaning of legislative arbitrariness in the legal order. With regards to the first point, the Constitutional Court enlightens that its pronouncement ‘is not precluded by the fact that […] the declaration of unconstitutionality brings to light specific regulatory requirements which, albeit subject to different responses on the part of the legislator, cannot be disregarded’ and that ‘the real or apparent lack of regulation which may arise from declaring laws unconstitutional cannot be considered an obstacle to making such declarations’73. For what concerns the second argument, the Constitutional Court considers that ‘once a reasonable period of time has elapsed, the need to guarantee constitutionality must, in any case, prevail over the need to leave room for the discretion of the legislator in the full regulation of the matter, which has

71 As defined in N. Fiano, cit. 72 D. Paris, The Italian Constitutional Court on Assisted Suicide—Assisted Suicide: Crime or Right?, Int’l J. Const. L. Blog, 2018. 73 4th conclusion on points of law in Judgment 242/2019. 35 priority’74. This holds particularly true ‘in fields such as criminal law, where the need to ensure the real protection of fundamental rights, affected by the choices of the legislator, is critical’75.

With the aim of leading the final decision of Judgment 242/2019 back in one – or more – of the categories analysed in paragraph 3.1, a joint analysis of its substantial and formal features can aid in assessing the question. As originally observed by Panzera76 and confirmed by Pescatore77, the decision has a triple character: principle-based additive with some features of rule-based and procedure-based additive. The judgment is generally ascribable to the first typology as the Constitutional Court makes vast reference to constitutional principles – or interpretatively inferred. The existence of a constitutional area whose protection constitutes the central corpus in the reasoning of the Court is provided by articles 2, 13 and 32(2) of the Italian Constitution. In addition to that, several references are made to the principle of informed consent: the latter is identifiable in Law 219/2017, to which the Court has conferred status of tertium comparationis. Furthermore, the procedural ascertainment of the conditionalities that lead to the acknowledgment of the newly guaranteed right is subordinated to the principle of medicalised process78.

With regards to the content of the decision that hints at the presence of some rule-based and procedure-based additive characters, it is worth mentioning that the envisagement of a limited area of constitutional non-compliance has been furtherly mediated by the attempt to find a substantial point of reference in the system. The Constitutional Court has enucleated the corollary of conditionalities to access the newly assessed perimeter of tutelage from Law 219/2017 – reckoning its borders in the presence of those material conditions deductively subsumed from the case at hand, i.e. those patients who are terminally ill but dependant on life-sustaining treatment. To this main point of reference, integrations have been indicated by the Constitutional Court – rule- based additions – in so far as the verification of conditionalities for accessing the newly found right space has been assigned to the competence of national public health facilities and territorially competent ethics committees have been vested with the duty ‘to ensure protection in particularly delicate situations’. However, this substantial minimum envisaged by the Court has the sole scope to accompany the declaratory of unconstitutionality with some rule-based indications which confer content to the evaluation: the production of a positive discipline that constitutes the real pars construens on this behalf rests in the hands of the Legislator. Its future scope of action is only limited to the extent that assisted suicide, under certain circumstances, will have to be considered criminally irrelevant79.

74 Ibidem. 75 Ibidem. 76 C. Panzera, L’ordinanza una e trina, Forum, Quaderni Costituzionali, 2019. 77 R. Pescatore, cit., p.360. 78 Ibidem. 79 Ibidem. 36

3.3 Legislative discretion and guarantee of constitutionality: a challenging dialectic in the background of Order 207/2018 and Judgment 242/2019

A leitmotif which subtends the academic discussion on the ‘Cappato case’ regards the challenging relation between the Legislator and the Constitutional Court, here embracing the guise of a dialectic arising out of a bifold necessity: ensuring the existence of the scope of action for the Parliament – above all in presence of a plurality of solutions prompted by diverse axiological, political and ethical stances – and the urgency not to disregard certain regulatory requirements – in the case at hand coinciding with particularly sensitive issues and values. To a certain extent, the debate is typical of the exhortative judgments or sentenze-monito, historically yielding a heated confrontation on their role within the delicate balance of powers characterizing the Italian system.

A broad distinction that appears worthy of mention to introduce the question is provided by Zagrebelsky and Marcenò80: it regards the difference between warnings of constitutional legitimacy and of legislative policy. In the first instance, the caveat produced by the Constitutional Court and addressed to the Legislator consists in the assertion of those constitutional principles which are of peculiar importance to the relevant question: the Parliament is required to take them into account in the attainment of its freely determined legislative duty. In the second instance, should the Court transcend its inherent raison d’être linked to the constitutional orientation in order to embrace a proper path of political choices, it would evidently uproot its role within the balance of powers.

The distinction is fairly abstract and can be challenged in the face of the complex and compound nature of many constitutional provisions, where legitimacy and political merits are texturally highly interrelated81. Clearly, should the Court manifestly invade the area of pertinence reserved to the Legislator, it would become a proper political actor which inevitably favours or weakens one or more groups in the bosom of the Parlia- ment. Even if warnings were solely understood in their constitutional legitimacy declination, some challenging traits would nonetheless stand out. As a matter of fact, the role of the Constitutional Court is structurally linked to an ex-post analysis of existing legislation – therefore concrete. Through exhortative judgments, even when limited to the statement of relevant constitutional principles that are signalled for the sake of future legislative action, a route would be paved for the emergence of a role which is diametrically opposite to the one which the Constitutional Court bears: consultative, preventive and abstract82.

The Italian Constitution is not a repository of principles whose relation is characterized by immutable and pre- defined orders or hierarchies: it foresees the necessity to exert efforts of balance. The aforementioned can

80 G. Zagrebelsky, V. Marcenò, cit., p.255. 81 Ibidem. 82 Ibidem, p.256. 37 result from diverse solutions which mirror the plurality of social, political and cultural influences which impact the public discourse. The interpreter of such ever flowing changes is the Legislator.

This line of reasoning appears to be endorsed by a variety of commentators who have approached the ‘Cappato case’ in its procedural dimension: to this extent, Ruggeri83 has emerged as one of the most influential. He re- examines the rationale which appeared to suggest the creative judgment of the Constitutional Court as a logically legitimate – and expected – follow up of the bifold structure held by ascertainment of unconstitutionality/suspension of the trial. Ruggeri reflects on the antinomy that, in his view, is already manifest in Order 207/2018. Either the latter is characterized by the pure exhortative function which defines the customary employment of warnings – and therefore the Legislator is implicitly acknowledged as the sole responsible for the envisagement of some normative solutions over others – or it is in itself a declaratory of unconstitutionality with additive traits - whose deferral is unnecessary once the creative interference of the Court has been accepted. This stance refuses what has been previously reckoned as the ontological renovation of the warning, where the contradiction detected by Ruggeri constitutes its very nature – a binomial combination of monitory intents and binding clauses to complement the ascertained unconstitutionality.

Altogether, Ruggeri acknowledges the joint effects of Order 207/2018 and Judgment 242/2019 as constituting the conclusive act of a trend which has been showing the Constitutional Court as a purely legislative actor. With regards to its creative spirit, he believes that the – mildly accepted – coexistence of a jurisdictional soul with a positively normative one has been progressively undermined by the predominance of the latter – now definitive. In his view, although tardiness and inertia by the Legislator shall be tempered with the devices disposable by the other powers involved, the remedy cannot coincide with the stressing of that balanced order of which the Constitutional Court itself is guarantor. If the sacrifice to be made in order to see a constitutional good adequately covered in the normative domain is the disfigurement of the institutional equilibria, the Mach- iavellian motif of the end which justifies the means is perceived by Ruggeri as not employable.

Furthermore, Ruggeri points out other criticalities that hinder the functioning of the new technique devised by the Court. He argues that, de facto, the time span that interposes between the two moments constituting the decision of incostituzionalità prospettata could give rise to some paradoxes: what if, medio termine, a new composition of the Constitutional Court panel determines the development of a belief that contradicts the merits of the order? Could the new components be obliged to follow the former directives? Similarly: what if the legislator acts on the ascertained vulnus in the wake of the indications provided for in the order and the new normative solution is later discarded by a panel differently oriented? These questions remain unanswered.

83 A. Ruggeri, Rimosso senza indugio il limite della discrezionalità del legislatore, la Consulta dà alla luce la preannunziata regolazione del suicidio assistito (a prima lettura di Corte cost. n. 242 del 2019), Giustizia Insieme, 2019; A. Ruggeri, Venuto alla luce alla Consulta l’ircocervo costituzionale (a margine della ordinanza n.207 del 2018 sul caso Cappato), Consulta Online, 3/2018; A. Ruggeri, Pilato alla Consulta: decide di non decidere, perlomeno per ora… (a margine di un comunicato sul caso cappato), Con- sulta Online, 3/2018. 38

In this respect and with a similar sceptical attitude, Di Maria84 questions various aspects of Order 207/2018, identifying the latter as constituting a genuine tertium genus that will provide an alternative to decisions of inadmissibility in light of legislative discretion and judgments of acceptance in the guise of principle-based additive decisions – where the Court is bound by the mechanism of rime obbligate. Di Maria expresses his reservations on the effects that the first procedural moment of incostituzionalità prospettata - namely the order containing the adjournment of the hearing – determines on ordinary judges, more in particular with respect to the purpose of avoiding the employment of the challenged law in the time span disposed by the Court. The incidenter proceeding, he argues, cannot prevent other judges – with the exception of the a quo one – from issuing a decision whose merits are determined by the provision medio tempore under scrutiny.

Another critical aspect depicted by Di Maria highlights an issue already surfaced in the comparison of the new technique with Unvereinbarkeitserklärung, i.e. the missed coincidence of the substantial ascertainment of the illegitimate traits in the provision with its formal translation through a declaratory of unconstitutionality. If de facto fruitful in the contingent proceeding – as the suspension of the trial effectively refrains the a quo judge from employing the norm under scrutiny – its hybrid nature hinders the potential effectiveness on the Legis- lator, which can choose to overlook the warning in light of the political circumstances characterizing its historical moment.

84 R. Di Maria, Brevi considerazioni sul rapporto tra tutela sostanziale dei diritti (fondamentali) e rispetto delle forme processuali: la Corte costituzionale e gli ‘animali fantastici’. The final cut, Consulta Online, 1/2020. 39

Conclusions

In 1996, the President of the Constitutional Court Granata emphasised how ‘it is not the duty of the Court to replace the Legislator through positive choices that would arise if, rather than eliminating an unproper exclusion deriving from the system, it would fill itself a normative vulnus’85. These words appear to establish a regime of continuity with the opinions of Epidendio86, who devotes part of his analysis to the creative attitude of the Court – and its problematic effects on the relation with the Legislator. He observes how the Constitu- tional Court has employed the idiomatic solution ‘constitutionally necessary criteria’ in place of ‘constitutionally bound content’ (typical of the rime obbligate scheme) to introduce its judgment. The difference is not of mere lexical relevance but signals a pivotal aspect in the new tool employed by the Court, namely enucleating those criteria that are deemed necessary on a casuistic basis and from the relevant fact of the proceeding.

The content of the additive integrations of the Court, above all those stemming from the tertium comparationis, is not derived from legal provisions; rather, it appears to be the by-product of certain features of the case that have suggested the remission of the question of unconstitutionality (the suicidal purpose as being freely determined, the irreversible pathology, the presence of life-sustaining treatments, the capacity of the patient to consciously deliberate). Accordingly, Epidendio finds that Judgment 242/2019 is not a decision of ius dicere character – i.e. one that enunciates positive law in the concrete case – but rather of de-caedere kind – i.e. one which transcends the conflict and solves the doubts within the concrete case87. Ius dicere and de-caedere coincide only when the concrete case is suitable in a normative provision88 – as a ‘constitutionally bound content’ may be – and in this rationale resided the raison d’être of rime obbligate. In cases of pure de-caedere, as Norberto Bobbio suggested, ‘the criterion’ does not transcend the contingent specificity, but rather lives a process of ‘identification with the object of the judgment’89.

Other commentators, such as Pescatore90, have proposed a less pessimistic stance on the effects that Order 207/2018 and Judgment 242/2019 will yield in the discourse of institutional balance. Contrarily to Ruggeri91, who believes that the ‘Cappato case’ represents a milestone that signals the end of limitations posed to the Constitutional Court in the implementation of its creative potentiality – at least in those cases where the challenged norm is not approached by the Legislator in due time – Pescatore finds that the new technique does not hinder the discretion of the Parliament: rather, the latter is once more invoked by the Constitutional Court. If Order 207/2018 had made explicit reference to the need of a legislative response, Judgment 242/2019 does not however invade the sacred scope of action of the Legislator. The latter has been determined to a

85 R. Granata, La giustizia costituzionale nel 1996, Giur. Cost., 1997, 1258. 86 T. Epidendio, cit. 87 The distinction between ius dicere and de-caedere has been clarified by Norberto Bobbio in N. Bobbio, Un diritto incalcolabile, Torino, 2016. 88 T. Epidendio, cit., p.6. 89 N. Bobbio, Un diritto incalcolabile, Torino, 2016. 90 R. Pescatore, cit., p.358. 91 A. Ruggeri, cit. 40 heteronomous extent only in a temporal fashion (limitation which however ceases to exist after the release of the Judgment) and in a minimal ontological spectrum constituted by articles 2, 13 and 32(2) of the Constitution (limitations which have been preventively clarified by the Court, but which the Parliament would have had to respect in any case).

However, if a critical compendium of both substantive and formal expedients in the realm of the ‘Cappato case’ had to be redacted, the conclusion reached by Epidendio would appear to be particularly convincing. Being it excessively case-based, the merits risk to displease those terminally ills who cannot access the newly found right lacking even one out of the four criteria enucleated by the Court; at the same time, having inevitably expressed a (minimal) value-driven choice, it will be easily countered by those who oppose its merits in light of personal convictions92.

In conclusion, notwithstanding the attempts of the Court to legitimate both the procedural and substantial novelties afore presented, it would appear that the joint spirit of Order 207/2018 and Judgment 242/2019 is bearer, merits-wise, of a positive axiological orientation – which inevitably represent one choice over a plurality of solutions – and, procedurally, of an abstract control on legislation – which contravenes the ex-post function that accompanies the negative duty of the Constitutional Court in assessing the legitimacy of existing legislation. On the other hand, the unresponsiveness of the Italian Parliament gains particular vividness in similar instances – when inertia can entangle positive law in a status of uncertainty, which in turn yields particularly frustrating effects on the skin of long-suffering people expecting a clear answer on their spectrum of legally available possibilities.

Although the ‘Cappato case’ may have signalled – independently from its (minimal) axiological direction – a jurisprudential predisposition to discuss themes long neglected, it remains unanswered whether the development of the new technique of incostituzionalità prospettata will overcome sentenze-monito in the exhortative efficacy that both ought to project in the legal order. Thus, it is a matter of debate whether the Constitutional Court will succeed in fostering the interest of the Legislator through a new procedural device – as it is the case with Unvereinbarkeitserklärung in Germany. All the more because the Constitutional Court appears, in the occasion of the ‘Cappato case’, to have stretched at its maximum its creative-integrative powers.

92 T. Epidendio, cit., p.7. 41

Riassunto in Italiano La vicenda processuale Cappato-Antoniani ha generato un vivo dibattito accademico e politico: sia alla luce delle questioni etiche ivi discusse che dei nuovi strumenti decisionali adoperati dalla Corte Costituzionale, il combinato disposto dei tratti sostanziali e formali contenuti nella Sentenza 242/2019 risulta d’interesse pecu- liare nel perimetro d’indagine della dottrina costituzionalistica. Il presente lavoro di tesi si propone di inquisire e la portata rivoluzionaria del nuovo modulo monitorio adottato dalla Corte – la cui possibilità d’insemprarsi tra i più canonici dispositivi rimane oggetto di dibattito – e la direzione assiologica indicata a proposito della futura (se vi sarà) opera legislativa in merito al suicidio assistito. Entrambe le direttrici d’analisi s’instillano nel solco già tracciato dalla Corte Costituzionale mediante l’Ordinanza 207/2018, nella quale veniva rilevato il vulnus nella chiusura lessicale dell’articolo 580 c.p. - che vieta in via assoluta l’aiuto al suicidio – in guisa di giudizio “di incostituzionalità prospettata”, così denominato da Giorgio Lattanzi. La ratio che sottende la scelta di suddetta tecnica monitoria risiede nel sospendere l’efficacia della disposizione, i cui effetti sono stati reputati ‘costituzionalmente non compatibili’, nell’ambito del processo a quo e nell’esortare il Legislatore a sanare un possibile vuoto di tutela di beni costituzionali in una finestra temporale definita. Palesatasi l’infrut- tuosa interlocuzione con il Parlamento, che non ha raccolto l’invito della Corte, quest’ultima ha inteso portare a compimento motu proprio la già delineata decisione di liceizzare, entro un’area definita di condizionalità, la condotta di agevolazione al suicidio.

I fatti dai quali il processo in questione origina risalgono a giugno 2014: Fabiano Antoniani (noto ai più come DJ Fabo) è vittima di un grave incidente automobilistico. La circostanza perniciosa ha delle importanti conse- guenze per Antoniani, che rimane tetraplegico nonché affetto da cecità permanente, mancanza di autonomia nell’alimentazione, nell’evacuazione e nella respirazione. Lo stato di acuta e costante sofferenza derivatovi determina la volontà di Antoniani di porre fine alla sua vita. È importante, ai fini delle valutazioni giuridiche che investono il merito del caso, ricordare che DJ Fabo aveva conservato piena capacità intellettiva: la sua capacità di autodeterminazione, e altresì la consapevolezza dell’irreversibilità della sua condizione, configu- rano una condizione di accertata facoltà deliberativa - libera e informata. Tale volontà determina l’incontro di Antoniani con Marco Cappato, che in prima istanza lo informa delle possibilità di interruzione dei trattamenti – contestualmente alla sedazione profonda – valide per legge in Italia. Tuttavia, la richiesta di DJ Fabo concerne la sola opzione di assistenza alla morte volontaria: per questa ragione, Cappato decide di accompagnarlo presso la clinica svizzera Dignitas, ove il 27 febbraio 2017 ha luogo la procedura di suicidio assistito. Ritor- nando dal viaggio, Marco Cappato si autodenuncia presso la stazione dei Carabinieri di Milano e viene inserito nella lista degli indagati con l’imputazione di istigazione e aiuto al suicidio ai sensi dell’articolo 580 c.p.. In occasione del processo celebrato presso la Corte di Assise di Milano, la suddetta ritiene di sollevare dubbio di costituzionalità in merito al perimetro applicativo e al trattamento sanzionatorio dell’articolo 580 c.p. laddove non prevede distinzione alcuna tra la condotta di aiuto al suicidio e di istigazione e punisce con la pena della reclusione da 5 a 10 anni le forme di agevolazione del proposito autonomamente formatosi. Si rileva quindi

42 contrasto con gli articoli 3, 13 comma 1, 25 comma 2, 27 comma 3 e 117 della Costituzione e con agli articoli 2 e 8 della Convenzione Europea dei Diritti dell’Uomo.

Tale meccanica processuale s’inscrive nella prassi della sollevazione della questione incidentale, la quale, come stabilito dall’articolo 1 della Legge Costituzionale 1/1948, deve sorgere ‘nel corso di un giudizio din- nanzi a un’autorità giurisdizionale’. Come rilevato da Zagrebelsky e Marcenò, in tale contesto il giudice a quo obbedisce a una funzione intermediaria nell’ininterrotto dialogo tra lex – il diritto dal punto di vista del ‘politico’ – e iura – i diritti dal punto di vista dei singoli. Laddove il contemperamento dei due elementi non si sostanzia, ma dà anzi luogo a certe antinomie, il giudice a quo ha la possibilità di riferire alla Corte Costitu- zionale che ottempera alla risoluzione del sopracitato contrasto latente. Applicando le caratteristiche generali della questione incidentale al caso specifico, è possibile chiarire la natura del thema decidendum indicato dalla Corte di Assise di Milano: l’oggetto della questione è l’articolo 580 c.p., mentre il parametro si compone degli articoli della Costituzione che si ritengono violati.

Non ostante la contrarietà della Corte Costituzionale rispetto alla condivisione della tesi di illegittimità costituzionale ‘nella sua assolutezza’, la suddetta ha chiarito nell’ambito dell’Ordinanza 207/2018 come ‘situazioni inimmaginabili all’epoca in cui la norma incriminatrice fu introdotta’ suggeriscano l’esistenza di profili di incostituzionalità nell’incriminazione all’aiuto al suicidio. Sebbene l’articolo 580 c.p. non sia di per sé incom- patibile con il tessuto costituzionale nel suo significato generale e indipendente dalle fattispecie alternative – trovandovi anzi perdurante giustificazione nell’esigenza di tutelare i soggetti più deboli e vulnerabili da decisioni che arrechino loro danno - la Corte Costituzionale ha effettuato un taglio chirurgico del petitum e ne ha enucleato alcuni elementi utili per l’analisi. Le condizionalità alle quali si fa riferimento per immaginare la liceizzazione della prassi riguardano un paziente affetto da una patologia irreversibile che sia fonte di sofferenze psichiche o psicologiche intollerabili; tenuto in vita a mezzo di trattamenti di sostegno vitale; capace di prendere decisione libere e consapevoli. In queste circostanze, ribadisce la Corte, l’assistenza di terzi nel porre fine alla vita del malato si configura come ‘unica via per sottrarsi, nel rispetto del proprio concetto di dignità della persona, a un mantenimento artificiale in vita non più voluto e che egli ha il diritto di rifiutare in base all’art. 32, co.2, Cost.’.

La Sentenza 242/2019, che conferma il suddetto sistema circostanziale da appurare perché un malato terminale possa godere di assistenza al suicidio, offre uno spunto di riflessione di più ampia natura sul telos dell’articolo 580 c.p. e sulle riflessioni della Corte Costituzionale a proposito della sua perdurante validità. Sebbene la Costituzione si componga di un sistema di beni giuridici la cui interrelazione è definita da un dinamico eser- cizio di bilanciamento, ne esistono alcuni di cardinale importanza che dominano l’ordine lessicale in cui i rimanenti si dispongono: tra i suddetti vi è il bene vita, ritenuto nell’ordinamento indisponibile dall’individuo stesso e dagli altri. Ciò a segnalare come l’articolo 580 c.p. - che dialoga direttamente con il bene costituzionale in questione, similarmente all’articolo 579 c.p. - confermi un atteggiamento moderatamente paternalistico da parte del Legislatore: non si punisce il suicidio in sé, anche per via dell’impraticabilità di tale ipotesi coercitiva, 43 ma si condanna qualsiasi forma di condizionamento o cooperazione di terzi che intervengano nella realizza- zione dell’atto finale. Tale scelta normativa rivela la volontà – e la responsabilità – statuale di proteggere gli individui da un atto irreparabile, ancor più quando si ritiene che i soggetti coinvolti siano particolarmente fragili o vulnerabili. La Corte Costituzionale ribadisce la funzione di ‘cintura protettiva’ dell’articolo 580 c.p. e ne conferma la coerenza teleologica nel rapporto con l’ordinamento a cui fa capo. Tuttavia, se il valore della vita testé citato non è in contrasto con la libera scelta di un malato che intende porre fine alla propria esistenza mediante sospensione dei trattamenti sanitari, appare irragionevole presidiare penalmente l’accoglimento della richiesta di un malato che abbisogna di un sostegno mirato a sollevarlo da un decorso lento e che inficia la sua percezione di morte dignitosa. In altre parole: se certe condizioni consentono già al malato – anche ai sensi della Legge 219/2017 – di procurarsi la morte mediante la rinuncia ai trattamenti sanitari, non vi è ragione per cui la stessa persona non possa avvalersi del supporto altrui per realizzare il medesimo proposito. È l’implicita esclusione della casistica qui delineata (che appare modellata sul caso in questione), avvenuta per effetto del presidio penale disposto dall’articolo 580 c.p., a violare, a detta della Corte, la libertà del malato nella scelta delle terapie, comprese quelle finalizzate a liberarlo dalle sofferenze. Tale libertà appare sussunta dal combinato disposto degli articoli 2, 13 e 32(2) della Costituzione.

Oltre all’interlocuzione con la Costituzione, la Corte si è asservita di un preciso riferimento nel sistema legislativo vigente: la Legge 219/2017. La densità di riferimenti a questa cornice normativa fa assurgere la Legge sul Fine Vita a tertium comparationis nel ragionamento sviluppato in occasione dell’Ordinanza 207/2018 prima e della Sentenza 242/2019 poi, evidenziando la salienza di tale riferimento legislativo per la struttura- zione di una disciplina minima e cedevole – in attesa del Legislatore – che regoli l’accesso al (limitato e condizionato) diritto a morire. In particolare, la Corte Costituzionale ha fatto esplicito riferimento agli articoli 1 e 2 della Legge 219/2017. Per il primo, è stata posta in risalto la centralità del consenso informato - a sua volta legato ai motivi di origine kantiana di autonomia e auto-determinazione fondamentali nel dibattito bioe- tico contemporaneo. Per il secondo, si mette in luce la rilevanza dell’accesso alle cure palliative, a volte capaci di sottrarre il malato terminale dalla volontà di porre fine alla sua esistenza. Generalmente, si evidenzia l’irri- nunciabile necessità di una procedura medicalizzata – presente nella Legge 219/2017 – che coadiuvi il corro- boramento della presenza delle condizioni poste dalla Corte e conferisca valore clinico al processo.

Il merito della Sentenza 242/2019 ha generato un dibattito vario e composito circa la matrice sostanziale delle conclusioni raggiunte dalla Corte. Si nota anzitutto come il valore astratto dell’articolo 580 c.p. sia stato conservato, benché riconsiderato alla luce del progresso medico-scientifico e le nuove fattispecie che possono scaturirne. Sebbene la direzione indicata dalla Corte, appannaggio di un futuro intervento legislativo, sia ri- sultata in un diritto significativamente circoscritto alla pratica dell’aiuto al suicidio, alcuni osservatori – come parte dei membri del Comitato Nazionale di Bioetica – adducono a sostegno delle loro perplessità l’argomento della china scivolosa. Si ritiene, infatti, che l’apertura al diritto a morire possa de facto preparare l’opinione pubblica e la realtà legislativa a un seguito normativo che legittimi pratiche di eutanasia e para-eutanasia. Si

44 sostiene, inoltre, che la c.d. ‘burocratizzazione della morte’ mortifichi il principio di curare e prendersi cura che dovrebbe guidare l’operato del medico davanti a un paziente. D’altro canto, si sostiene l’esistenza del rischio che il lascito della Sentenza 242/2019 rimanga ancorato alla dimensione eidetica della normativa senza risultare fruibile nella prassi: la vaga conferma dell’obiezione di coscienza nell’accoglimento della richiesta del malato non è bilanciata dalla garanzia che vi sia almeno un medico nella struttura sanitaria che possa realizzare il proposito del paziente. Sempre sulla scia della paventata incompletezza delle disposizioni sostanziali nella Sentenza, si lamenta l’indebita esclusione di altre categorie di persone – ad esempio i malati termi- nali che, pur rientrando nel sistema di condizionalità previsto dalla Corte, soffrono di una disabilità che non permette loro di finalizzare la procedura atta a terminare la loro vita – che contravviene gli stessi principi di equità e ragionevolezza impiegati dalla Corte.

L’analisi degli aspetti procedurali, altrettanto discussi e dibattuti, non può che principiare dall’analisi delle tecniche decisorie già presenti in dottrina e che appaiono prossime alla nuova tipologia impiegata dalla Corte Costituzionale – così da comprendere ragioni e origini dell’inedito modulo monitorio. La prima distinzione che appare opportuno operare concerne le decisioni interpretative e le decisioni manipolative. Le prime si dividono in interpretative di accoglimento e interpretative di rigetto: in entrambi i casi, si adotta un ragionamento per cui la conformità o non-conformità costituzionale della legge contestata non è assoluta – bensì legata all’interpretazione che se ne dà nell’ambito dell’ampio spettro di norme che ne derivano. In caso di sentenza interpretativa di rigetto, la Corte riconosce che la lettura costituzionalmente orientata della legge non corrisponde a quella proposta dal giudice a quo nella questione sollevata in fase incidentale. In caso di sentenza interpretativa di accoglimento, invece, la Corte riconosce che la norma – ossia l’interpretazione della legge – contestata è invero incostituzionale. Mediante lo schema della doppia-pronuncia, ancora, è possibile impiegare prima l’interpretativa di rigetto e in seguito l’interpretativa di accoglimento c.d. parziale: questo mecca- nismo consente di non eliminare la disposizione ma di caducare una norma vigente ritenuta incostituzionale.

Sebbene le sentenze manipolative costituiscano un dispositivo di diversa natura, si può inferirne l’origine a partire da un più ampio proposito che investe anche le sentenze interpretative – ossia la possibilità che la Corte Costituzionale possa intervenire in modi alternativi alla semplice eliminazione della legge. Obiettivo delle sentenze manipolative è, infatti, trasformare una disposizione in luogo della sua eliminazione o altra interpretazione. È possibile impiegare questo strumento allorquando l’illegittimità della legge non può risolversi in via interpretativa ma unicamente mediante una manipolazione che la riconduca alla conformità costituzionale. Esistono tre tipologie di sentenze manipolative. Le decisioni di accoglimento parziale, ove non cade l’intero disposto legislativo ma solo alcune parti di testo – opportunamente modificate dalla Corte. Le decisioni sosti- tutive, ove la Corte dichiara l’incostituzionalità di una legge in quanto indica una certa prescrizione in luogo di un’altra – opportunamente enunciata dalla Corte. Le decisioni additive o aggiuntive impiegate allorquando l’incostituzionalità risiede nella portata normativa insufficiente della disposizione contestata, nella parte in

45 cui non prevede ciò che dovrebbe – opportunamente indicato dalla Corte. In questo caso l’illegittimità è ne- gativa, nel senso che inerisce a un’omissione.

Di per sé e indipendentemente dalle recenti evoluzioni in dottrina, l’impiego delle sentenze additive ha inne- scato un dibattito sull’effetto che le stesse proiettano nella sfera dell’equilibrio di poteri e del bilanciamento istituzionale. Il principio quasi-legislativo che regola questo tipo di decisioni è stato mitigato dallo schema crisafulliano delle rime obbligate, laddove la norma integrativa indicata dalla Corte Costituzionale deve potersi ricondurre a un contenuto dichiarato (dunque già presente nell’ordinamento) e non a una pura operazione di politica legislativa per cui risulterebbe creato ex nihilo. Alla luce di quanto espresso, la pars destruens deve accompagnarsi a un ‘contenuto costituzionalmente obbligato’ che componga la pars costruens. Quando la Corte riconosce di non poter completare il giudizio con una costruzione positiva esaustiva – in quanto aldilà dei suoi poteri – indica uno o più principi costituzionali ai quali il prossimo intervento legislativo dovrà con- formarsi: in questo caso il dispositivo prende il nome di sentenza additiva di principio. In altre circostanze, quando è possibile identificare più precisi riferimenti nell’ordinamento, si tratta di sentenza additiva di regola.

Le sentenze-monito, in conclusione, si reggono su due direttrici temporali e concettuali. In prima istanza, la questione viene reputata inammissibile alla luce, ad esempio, dello spazio discrezionale riservato al Legisla- tore; contestualmente, tuttavia, il Parlamento viene esortato ad intervenire mediante un monito. In caso di inottemperanza all’invito della Corte Costituzionale, quest’ultima può – ma non vi è vincolo formale – ritor- nare sulla questione tramite una decisione di accoglimento che paleserebbe in guisa ancor più concreta la necessità di un intervento legislativo.

Benché la Corte abbia ricondotto la tecnica decisoria dell’incostituzionalità prospettata adottata nel caso Cap- pato alle sentenze-monito e alla doppia pronuncia, vi sono almeno due tratti che la rendono essenzialmente distinta. Primariamente, l’Ordinanza 207/2018 non è, come nel caso della prima fase procedurale delle sentenze-monito, una decisione di inammissibilità: l’incostituzionalità della norma è accertata sostanzialmente ma non resa formalmente. In aggiunta, il monito ha un valore temporale preciso – nel caso in questione undici mesi – all’interno del quale il Legislatore è chiamato ad intervenire: nella mora di quest’ultimo, la Corte sta- bilisce già ex-ante il suo ritorno sulla questione. Al contrario delle sentenze-monito, l’esortazione ha un vincolo temporale definito e compie un salto ontologico in quanto prelude a un - non più aleatorio – giudizio di accoglimento. In definitiva, la Sentenza 242/2019 può identificarsi in quanto additiva di principio con alcuni elementi pertinenti a una decisione additiva di regola e di procedura cedevoli.

Diverse sono state le critiche mosse all’impiego di questo inedito dispositivo, specie laddove si evidenzia la problematicità del rapporto della Corte con il Legislatore. Ruggeri riconosce nella Sentenza 242/2019 il defi- nitivo trionfo dell’anima legislativa su quella della iuris-prudentia – vocazioni che coesistevano neutralmente in seno alla Corte Costituzionale. Il machiavellico principio del fine giustifica i mezzi, ove si voglia por rimedio alle inottemperanze del Parlamento, non può legittimare, a suo dire, una così evidente interferenza nell’area

46 di arbitrarietà del Legislatore. Epidendio rievoca le categorie dello ius dicere e del de-caedere già esaminate da Bobbio, laddove la prima richiama la mera enunciazione del diritto positivo nel caso concreto e la seconda riguarda la risoluzione del conflitto di specie nel e mediante gli elementi del fatto. Si reputa che la Sentenza 242/2019 abbia trasceso i limiti della coincidenza delle due categorie, possibile esclusivamente nel caso in cui il diritto positivo possa impiegarsi agevolmente nel caso concreto – e che dunque sia in sostanza un giudizio di puro de-caedere ben aldilà delle rime obbligate. Pescatore, invece, sostiene che il perimetro di principio stabilito dalla Corte Costituzionale sia stato meramente chiarito, in quanto il Legislatore ne avrebbe, in ogni caso, dovuto tener conto in sede di produzione normativa.

A ben vedere, sebbene il ‘caso Cappato’ abbia segnalato la presenza di una tendenza giurisprudenziale alla discussione di temi a lungo negletti nel discorso pubblico, rimane incerta l’incisività del nuovo modulo monitorio sull’operosità del Parlamento – unico e vero detentore del potere legislativo e protagonista indiscusso della normazione sulle questioni qui trattate.

Bibliography

- A. Baraggia, The Italian Constitutional Court on Assisted Suicide, Int’l J. Const. L. Blog, 2018. Available at: http://www.iconnectblog.com/2018/12/introduction-to-i-connect-symposium-the-italian-constitutional-court- on-assisted-suicide

- O. Caramaschi, La Corte costituzionale apre al diritto all’assistenza nel morire in attesa dell’intervento del legislatore (a margine della sent. n. 242 del 2019), Osservatorio AIC, 2020. Available at: https://www.osservatorioaic.it/images/rivista/pdf/2020_1_15_Caramaschi.pdf

- M. Carotti, The Italian Constitutional Court and the Lawmaker: the Cappato case (Order no.207/2018), 2019. Available at: http://tesi.luiss.it/24455/1/082972_CAROTTI_MARGHERITA.pdf

- C. Cupelli, Il Parlamento decide di non decidere e la Corte costituzionale risponde a se stessa. La sentenza n. 242 del 2019 e il caso Cappato, Sistema Penale, 2019. Available at: https://sistemapenale.it/pdf_contenuti/1575474580_cupelli-2019a-corte-costituzionale-242-2019-corte- risponde-a-se-stessa-caso-cappato.pdf

- R. Di Maria, Brevi considerazioni sul rapporto tra tutela sostanziale dei diritti (fondamentali) e rispetto delle forme processuali: la Corte costituzionale e gli ‘animali fantastici’. The final cut, Consulta Online, 1/2020. Available at: http://www.giurcost.org/studi/dimaria2.pdf

- T. Epidendio, La sentenza della Corte Costituzionale n.242/2019: apocalypsis cum figuris, Giudice- donna.it, 2-3/2019.

- P. Faraguna, Constitutional Paternalism and the Inability to Legislate: The Italian Constitutional Court’s Decision on Assisted Suicide, Verfassunblog, 2019. Available at: https://verfassungsblog.de/constitutional-paternalism-and-the-inability-to-legislate/

- N. Fiano, The Italian Constitutional Court on Assisted Suicide—Court Order no. 207 of 2018: A Particular “Species” of the German Incompatibility Ruling?, Int’I J. Const. L. Blog, 2018. Available at: http://www.iconnectblog.com/2018/12/i-connect-symposium-the-italian-constitutional-court-on-assisted- suicide-court-order-no-207-of-2018-a-particular-species-of-the-german-incompatibility-ruling/

- G.F. Ferrari, Introduction to Italian Public Law, Giuffrè, 2008.

- E. Furno, Il “caso Cappato” ovvero dell’attivismo giudiziale, Osservatorio AIC, 1/2020. Available at: https://www.osservatorioaic.it/images/rivista/pdf/2020_1_18_Furno.pdf

- C. Masciotta, La Corte costituzionale riconosce il diritto, preannunciato, a morire rapidamente e con di- gnità con una tecnica decisoria dalle dirompenti implicazioni, Consulta Online, 1/2020. Available at: http://www.giurcost.org/studi/masciotta.pdf

- D. Paris, The Italian Constitutional Court on Assisted Suicide—Assisted Suicide: Crime or Right?, Int’l J. Const. L. Blog, 2018. Available at: http://www.iconnectblog.com/2018/12/i-connect-symposium-the-italian-constitutional-court-on-assisted- suicide-assisted-suicide-crime-or-right/

- R. Pescatore, Caso Cappato-Antoniani: analisi di un nuovo modulo monitorio, Osservatorio AIC, 1/2020. Available at: https://www.osservatorioaic.it/images/rivista/pdf/2020_1_03_Pescatore.pdf

- A. Ridolfi, Un nuovo tipo di doppia pronuncia: la via italiana alla Unvereinbarerklärung? (Osservazioni su C. Cost., ord. n. 207/2018 e sent. n. 242/2019), Nomos, Le attualità nel diritto, 2020. Available at: http://www.nomos-leattualitaneldiritto.it/wp-content/uploads/2020/02/Ridolfi-1-ver.pdf

- M. Romano, Aiuto al suicidio, rifiuto o rinuncia a trattamenti sanitari, eutanasia (sulle recenti pronunce della Corte costituzionale), Sistema Penale, 2020. Available at : https://www.sistemapenale.it/pdf_contenuti/1578432588_romano-2020a-aiuto-al-suicidio-eutanasia-corte- cost-242-2019.pdf

- A. Ruggeri, Rimosso senza indugio il limite della discrezionalità del legislatore, la Consulta dà alla luce la preannunziata regolazione del suicidio assistito (a prima lettura di Corte cost. n. 242 del 2019), Giustizia Insieme, 2019. Available at: https://www.giustiziainsieme.it/it/attualita-2/802-prima-lettura-di-corte-cost-n-242-del-2019-di-antonio-ruggeri

- A. Ruggeri, Venuto alla luce alla Consulta l’ircocervo costituzionale (a margine della ordinanza n.207 del 2018 sul caso Cappato), Consulta Online, 3/2018. Available at: http://www.giurcost.org/studi/ruggeri82.pdf

- A. Ruggeri, Pilato alla Consulta: decide di non decidere, perlomeno per ora… (a margine di un comunicato sul caso cappato), Consulta Online, 3/2018. Available at: http://www.giurcost.org/studi/ruggeri81.pdf

- A. Santosuosso and P. Belloli, Paradossi nel procedimento Cappato. Tre aporie generate dall’art. 580 c.p. a proposito di aiuto al suicidio, Giurisprudenza Penale / Associazione Luca Coscioni, 2018. Available at: http://www.giurisprudenzapenale.com/wp-content/uploads/2018/09/Santosuosso_seminarioalc.pdf

- C. Tripodina, La “circoscritta area” di non punibilità dell’aiuto al suicidio – Cronaca e commento di una sentenza annunciata, Giurisprudenza Italiana, Corti Supreme e Salute, 2/2019. Available at: http://www.cortisupremeesalute.it/wp-content/uploads/2019/12/Tripodina.pdf

- B. Vimercati, The Italian Constitutional Court on Assisted Suicide—The Italian Constitutional Court and the Recent Decision on Assisted Suicide: The Guardian of the Constitution or the “Guardian” of the Parlia- ment?, Int’l J. Const. L. Blog, 2018. Available at: http://www.iconnectblog.com/2018/12/i-connect-symposium-the-italian-constitutional-court-on-assisted- suicide-the-italian-constitutional-court-and-the-recent-decision-on-assisted-suicide-the-guardian-of-the-constitution/

- G. Zagrebelsky, V. Marcenò, Giustizia Costituzionale**: Oggetti, provvedimenti, decisioni, Il Mulino, Bo- logna, 2018.