Carmela Salazar

«Dying, Not Being Attacked by Death». Reflections on Ordinance 207/2018 of the Italian Constitutional Court

  • Abstract

Informations and abstract

Keywords: Art. 580 Italian Penal Code; Ordinance of Future Unconstitutionality; Right to Refuse Medical Treatment; Medically Assisted Suicide; Relationship between the Constitutional Court and Parliament.

The essay reflects on Ordinance 207/2018 of the Italian Constitutional Court, better known as the Cappato Ordinance. While formally deferring the decision to a later hearing, in substance the ordinance accepts the question of unconstitutionality of art. 580 Italian Penal Code (CP) insofar as it criminalizes assistance to commit suicide. The author reconstructs the complex argumentative structure of the ordinance. While recognizing that art. 580 CP pursues an objective of enduring relevance such as protection of certain vulnerable subjects, the Court found elements of supervening partial unconstitutionality, different from those identified by the judge a quo - relating in particular to artt. 2, 3, 13 and 32 Italian Constitution. The essay focuses on the cases for which the Court identifies a conflict between art. 580 CP and the forgoing articles, to then examine the reasons for which the Court refused to deliver a judgment of unconstitutionality tout court and rather encouraged the legislature (through a wide and articulated admonition) to provide regulated access to medically assisted suicide. The Court suggests this could be done through integration of the rules concerning the right to refuse medical treatment of Law 219/2017. In the conclusions, the author reflects on the decision that the Court may adopt in the new hearing.

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