The guardian of the Constitution or the "guardian" of Parliament?

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Benedetta Vimcarti, Constitutional law, research fellow at Milan University

As soon as the press release of the Italian Constitutional Court was announced for suicides in the press release, some comments of this moment reflect the court as a modern Pontius Pilate. The latter wash their hands in the matter except the crowd's decision. The Italian Constitutional Court is prepared to establish itself in the same situation not to decide the decision in the hands of the Chamber of Parliament.

But, is this indisputably true?

Of course, most scholars have never expected this solution, which is quite unusual and methodically abnormal. This result is probably the result of disagreement within constitutional judges. But we can estimate this disagreement because of this fact that the Italian constitutional system asks for the judicial decision, the formalities of the panel and the demand for unity (for example, do not make ideas available for dissatisfaction).

While highlighting the coalition of this very sensitive issue, the court gave a decision that provides food for thought and two points in particular should be closely watched in relation to the content of the decision.

Firstly, Italian constitutional judges essentially ruled blanket restrictions on supportive suicides as an unbalanced under the Italian Criminal Code, especially in the case of patients for whom third-party assistance was needed to end their life. The only way to be concerned with personal is the concept of dignity, not worth living for the artificial maintenance of life. It has the right to deny the patient. In this perspective, the legal argument of the court has been dealt with by some constitutional provisions (Art 2, 3, 13, 32.), Two of which (Art 3, Equality theory and Art 32, Right to Health and Forced Medical Treatment Remain protected against) in the request presented to the Constitutional Court by the Milan judges was not clearly mentioned in the form of constitutional standards. Despite this lacking and according to the fact that he was mentioned in the order, even though not within the ruling, constitutional judges used these provisions for their benefit, which states that the complete prohibition of auxiliary suicides, The freedom of self-reliance limits the principles of human dignity as well as principles of rationality and equality.

The court embraced a subjective-individual approach, which included a fundamental and constitutional right to die under certain conditions of self-reliance theory (in the form of general right to freedom). But can this interpretation be considered as an inevitable result imposed by the Constitution? Or is it an option in the discretion of Parliament (Art 25 consonance, the principle of legality in criminal law)?

The Constitutional Court did not pay any attention to such views on the relations between the constitutional court and the legislature. In relation to this relation, the Constitutional Court is carefully withdrawing one step in this matter. Thanks to the comparative point of reference given by the UK Supreme Court and the Canadian Supreme Court respectively, the decisions made by the Carter V Canada and the Niklinson V. Ministry of Justice, the court demonstrates its intention to establish a mechanism for collaboration and dialogue between the Constitutional Court. Done Parliament. Therefore, according to the court, it becomes the responsibility of Parliament to determine the balance between many relevant and fundamental rights / interests.

Even so, the subject is very sensitive and important for allowing an extended legal vacuum in the interim interim, because Parliament can not remain liable for a period of several years. It is a parliament, which is important to remember, this issue has been discussed recently. After several years, in 2017, the Italian Chamber passed a bill on knowing the informed consent and life, which did not consider any kind of auxiliary suicide legal.

Therefore, the court encouraged Parliament to pass a new bill which would present some suicide and uplift in the Italian legal system. With this request, there were some recommendations in the Italian Constitutional Court. Some of them appear to be more harsh when the court gives a list of conditions that validates suicide: "A) the person should be affected by the irreversible disease; B) Pathology should be the source of physical or psychological pain, Which is absolutely intolerant; C) is kept alive through life-sustained treatment; D) The patient should be able to make free and conscious decisions ".

Other court judgments are less attractive and are being physically designed according to the discretion of the legislator: Verification activities have been done to ascertain the existence of the necessary conditions to request an Assistant Suicide for a person; Discipline of related "medical procedures"; Potential Specification was accepted to include the provision of allowing the National Healthcare System to administer the medication and healthcare professionals to conduct honestly objectionable exercises.

In addition, the Constitutional Court pointed to the regulatory framework where legislative transfer should be, not the recommendation of the legislative amendment of the Criminal Code, but the integration of recent laws on informed consent. Consequently, the recognition of auxiliary suicide will be confined within the conditions prescribed by the court and it will be limited thanks to its legislative status.

The constitutional court's attitude depends on the wishes in favor of constitutional judges, in the interest of being open to suicide, at the same time, against discrimination against excessive openness, particularly to protect the weaker people from abuse.

On a final note, the Constitutional Court not only invited the legislature to intervene, but adjourned the decision – as a result – after suspending the main trial before the court of Milan, Parliament should make laws of the new rules in accordance with its rule Was given a year for.

With this decision, it appears that the Constitutional Court can not be described as a modern Pontius Pilate because the court had actually chosen to make a decision. It did not determine all the exact details of the Assistant Suicidal Constitutional Plan, but it was issued to issue specific information for Parliament to prevent further declaration of unconstitutionality. But, in a sense, the Italian Constitutional Court – the Guardian of the Constitution (Monitoring the Constitution) – in this example, appears to play the role of the legal guardian of the Parliament. Can it be considered as a mechanism of cooperation between the Constitutional Court and the Parliament, or how far the suicide should be committed to the court in the court, can it go far in its decision?

And in the absence of legislative action? Will the court extend Parliament to pass the Assistant Suicide Act? If the court will reopen the verdict, what about the decision? Will the court support the declaration of unconstitutional of the suicide ban tout court Or will it rewrite the law itself? What will happen if the legislator tends to balance the right of life for the loss of right to self-reliance, or in the opposite case, the legislator implements a law which broadens the conditions laid down in the constitutional court decision? By the decision of the Constitutional Court, to what extent does the content of the coming piece of law be limited?

There are still many cards left to play in the player's hands.

On one hand, the Italian parliament is going through a complex phase and the majority is divided on this controversial issue. This Parliament has been challenged in the case of broad regulation, which will have capital impacts (We should only consider the consequences of assisted suicide limits as a result of the comprehensive view of health, not only in physical sense but also in psychological sense). .

On the other hand, the Constitutional Court has already played its card and has opened an important door through decision-making – thanks to the form of the form and its contents – to have a significant impact on the whole Italian constitutional system.

Suggested citations: Benedetta Vimcarti, I-Connect Symposium: Italian Constitutional Court on Assistant Suicide – Recent Decision on the Italian Constitutional Court and Assistant Suicidal: The Guardian of the Constitution or the "Guardian" of Parliament?, Intel J. Constest L. Blog, December 6, 2018, here: http://www.iconnectblog.com/2018/12/i-connect-symposium-the-italian-constitutional-court-on-assisted-suicide-the-italian-constitutional -court Suicide-Guardian of the Constitution with the help of more recent decisions

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