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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 arti- cle 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 2 “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 3 Introduction The so called ‘Cappato case’ has produced considerable echoes in the Italian public opinion and in the aca- demic 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 illegiti- mate 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. 4 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 novel- ties 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. 5 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 con- siderably 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 par- ticular 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 pro- posed 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

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