(Jan. 7, 2020) On November 22, 2019, the Italian Constitutional Court declared that application of article 580 of the Penal Code penalizing assisted suicide is unconstitutional in certain circumstances. (Decision No. 242 of November 22, 2019 (the Decision) (in Italian).)
Background of the Case
The case was referred to the Constitutional Court by the Court of Assize of Milano, which raised questions related to the constitutional legitimacy of the part of article 580 of the Penal Code that
- punishes assisting in (determina) the commission of a suicide or reinforcing the suicidal intent in someone else, as opposed to instigating (istigazione) the suicide, and
- provides that any conduct aimed at executing the suicide that does not affect the deliberative process of the suicide aspirant is punishable by five to 10 years’ imprisonment, without distinction between the assistance and instigation. (Decision, considerations of fact §§ 1(a), (b).)
In the underlying case, the suicide aspirant suffered a serious traffic accident in 2014 that left him a quadriplegic and permanently affected by bilateral cortical blindness. He could no longer breathe, ingest food, or excrete autonomously, and suffered constant painful spasms and contractions that that could not be completely alleviated pharmacologically. His intellectual abilities remained intact, however. After long and repeated hospital admissions and several attempts at rehabilitation and healing, including a stem cell transplant, his condition became irreversible. These circumstances led him to decide to end his life, and he communicated this decision to his loved ones. When his mother and fiancée attempted to dissuade him, he expressed even greater resolve by refusing to eat and speak. In 2016, through his fiancée, he contacted several organizations promoting assisted suicide in Switzerland, where the practice is legal. Simultaneously, he entered into contact with the person prosecuted in the underlying case (the “petitioner”), who had already proposed that the suicide aspirant subject himself to profound sedation in Italy to interrupt artificial respiration and nutrition. (§ 1.1, paras. 1–7.)
Eventually, the petitioner decided to accompany the suicide aspirant on a car trip to Switzerland to carry out the assisted suicide there; in the meantime, the suicide aspirant reiterated his decision to his family and acquaintances, expressed it in a film, and communicated it in a letter to the president of Italy. Ultimately, the suicide aspirant traveled with the petitioner, followed by his fiancée and his fiancée’s mother, from Milan to Switzerland, where the suicide took place on February 27, 2017. Upon his return to Milan, the petitioner turned himself in to the local police, who charged him with reinforcing and facilitating a suicide under article 580 of the Penal Code. The judge of first instance considered that the suicide aspirant had decided to commit suicide independently of the petitioner’s intervention. The court of second instance, however, overturned the acquittal, maintaining that accompanying the suicide aspirant in the car constituted assisting in the suicide in that it was a condition for carrying out the act. (§ 1.1, paras. 8–9, 11, 13–16.)
In its referral, the Milanese Court of Assize noted that a 1998 decision by the Court of Cassation had held that facilitating a suicide was punishable independent of instigating a suicide. The 1998 decision was the grounds for the provision in article 580 that punishes those who “in whatever manner” facilitate another person’s suicidal intentions. The 1998 decision thus favors a broad interpretation of the punishable conduct that includes anything contributing to the implementation of the victim’s intentions, which includes failing to intervene to prevent the suicide. (§ 1.1, para. 16.)
The Milanese Court expressed its doubts about the constitutional legitimacy of the part of article 580 of the Penal Code that penalizes assisting suicide, even in situations where one has not assisted in the commission of the suicide or reinforced the suicide aspirant’s intent. The Milanese court noted that article 580 must be read according to the provisions of the Italian Constitution (English translation) that grant individuals the right to choose when and how to put an end to their own lives. (§ 1.2, paras. 1, 3.)
The Milanese Court also mentioned the right consecrated in article 32 of the Constitution providing that “[n]o one may be obliged to undergo any health treatment except under the provisions of the law,” which was further enunciated in prior judicial rulings. The Court also referred to Law No. 219 of December 22, 2017, on Informed Consent and Advanced Trials, which expressly recognizes the right of any able person to reject any type of health treatment, even those necessary for survival (including nutrition and artificial hydration). (§ 1.2, para. 4.)
On the basis of this reasoning, the Milanese Court referred to the Constitutional Court the question whether article 580 of the Penal Code violated the Constitution. (§ 1.3 paras. 2, 3.)
Reasoning of the Constitutional Court
The Constitutional Court mentioned its precedent contained in Ordinance No. 207 of 2018 (Ordinanza n. 207 del 2018), holding that (a) the suicide aspirant must be a person affected by a pathology that is irreversible, (b) the pathology must be the source of physical or psychological suffering that is absolutely intolerable, (c) the person can be kept alive only through life support treatments, and (d) the person remains able to adopt free and informed decisions. (Considerations of law § 2.3, para. 1.)
The Court considered that, on the basis of current legislation, the suicide aspirant’s decision to put an end to his life has binding effects on third parties. In addition, the Court noted that Law No. 219 of 2017 recognizes the citizen’s right to reject or interrupt health treatment. (Considerations of law § 2.3, paras. 3, 4.)
The Court clarified, however, that under current legislation, medical doctors are prohibited from making available to patients in the aforementioned conditions substances or procedures that would cause them death. The Court recalled that in the underlying case, the suicide aspirant had rejected the alternative of going into profound sedation accompanied by a disconnection of the artificial respirator because doing so would have caused a slow death that the suicide aspirant considered undignified. This, in the Court’s view, would have nullified the patient’s will. (§ 2.3, paras. 6–7.)
Likewise, the Court reasoned that if current legislation allows ill persons to interrupt treatment, there is no valid reason to forbid the same persons from carrying out their decision to end their own lives with the assistance of another. The Court pointed out that the absolute prohibition of assistance to suicide ends up unjustifiably and unreasonably limiting the freedom of self-determination of an ill person in the choice of therapy, which includes the freedom to be released from suffering. (§ 2.3, paras. 8, 9.)
The Court’s declaration of unconstitutionality refers, then, exclusively to the case of assistance to suicide rendered to persons who were already in the position to let themselves die by renouncing health treatment necessary for their survival. (§ 5, para. 5.)
Concerning the topic of conscientious objection by health personnel, the Court clarified that its current decision was limited to declaring the constitutional illegitimacy of punishing assistance to suicide in the cases under consideration, without creating an obligation for medical doctors to render such assistance. Whether to provide assistance to a suicide aspirant remains subject to the conscience of each individual doctor. (§ 6, para. 1.)
The Court concluded that the conditions for the decriminalization of assistance to suicide under the Italian Constitution include the following:
- The suicide aspirant has the ability to make free and conscious decisions.
- The aspirant suffers irreversible pathology or serious physical or psychological suffering and is kept alive only through life-sustaining treatments.
- The aspirant’s physical or psychological suffering is considered to be intolerable.
- The territorially competent ethics committee must make a pronouncement on the case.
- The conditions and modality of executing the suicide must be approved by a public entity of the national health service.
- The aspirant has been adequately informed about the aforementioned conditions, in particular, on the possibility of accessing palliative care, including continuous sedation, and has rejected this possibility.
- The aspirant has expressed his or her will in a clear and unequivocal manner.
- The conditions have been verified by a judge in each particular case. (§ 7, para. 5.)