THEMIS 2017 Semi-Final D: Judicial Ethics and professional conduct

Budapest 3rd-6th July 2017

JUDGING EUTHANASIA

«juger que la vie vaut où vaut pas la

peine d’être véçu, c’est repondre à

la question fondamentale de la

philosophie» [A. CAMUS, Le

mythe de Sisiphe, Paris, 1947]

Italy

Team members: Carlo Di Cataldo, Paolo Magro and Andrea Zoppi.

Team coach: Luca Agostini.

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EUTHANASIA: PRINCIPLES AND VALUES

1. Introduction

When we talk about “euthanasia” and “assisted suicide”, at least two remarks are necessary.

First of all, we are moving in a topic with a strong ethical background, where religion, politics,

philosophy, and even just common sense have to be borne in mind. It is easy to understand why:

euthanasia is about stopping human life and assisted suicide is related to the moral acceptability of

self-killing. Human life is a value; therefore, it can be considered differently from person to person,

because of the subjectivity and relativeness of values.

Religion, politics, philosophy and common sense are the product of people with different

backgrounds. This explain why euthanasia causes opposite reactions in public conscience, because

even the person who is closest to us could have to farthest position about end-of-life practices.

Secondly, what does the word “euthanasia” mean? The preliminary definition is essential to fully

understand what we are talking about, since concepts – in social science – are essentially

fundamental to understand the law.

To discuss about euthanasia and assisted suicide with a legal-theoretical approach means to

understand what should be the best solution for a legal system and for its judiciary, in order to

create a more equal society.

Nowadays, indeed, euthanasia and assisted suicide are in the centre of the public debate because

of several cases where people, thanks to the freedom of circulation inside E.U., decided to travel

from their respective countries to die where end-of-life practices are allowed.

European countries take greatly different approaches to end-of-life decisions. Therefore, in some

countries medical self-determination is fully accomplished (and then euthanasia and assisted suicide

are seen just as a medical treatment that can be used under certain circumstances); in other

countries, instead, it is a crime to help people die, even when they ask for it, or asked, if they are in

an irreversible vegetative state.

1.2. Paper organisation and methodological guidance

The paper is divided in three part: the first one talks about the definition of euthanasia and faces

the problems related to main ethical issues about euthanasia and assisted suicide.

The second part deals with the civil law issue related to end-of-life practices and the third one

considers the criminal law dimension of this topic, as long as in some Members of the U.E.

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euthanasia and assisted suicide are crimes; through the study of International and European Law,

the legislations of European countries, also in a comparative way, and the decisions of European

Court of Human Rights (E.C.H.R.), it will be possible to individuate solutions and best options.

2. Defining “euthanasia”

The term “euthanasia” comes from ancient Greek: εὐθανασία means “good death” (εὖ, eu;

“well” or “good” – θάνατος, thanatos; "death"). As etymology suggests, even in the antiquity life

was not assumed as a value in all cases and the option that a “sweet” death could be more desirable

than a painful existence was also considered.

In the contemporary language, when we talk about “end-of-life” practices, we could observe at

least three different meanings:

a) the voluntary refusal, by the patient, of medical treatments necessary for survival (VPE, i.e.

“voluntary passive euthanasia”)1;

b) the termination of the life of another person at the latter’s explicit request (VAE, i.e.

“voluntary active euthanasia”)2;

c) the assisted suicide (AS)3.

The word “euthanasia” is also used in case of pain therapy, when it causes the shortening of

patient’s life (this practice is also known as “indirect euthanasia”, IE).4 Nevertheless, this work will

be focused on the three meanings mentioned above, because we focused on highlighting the relation

between end-of-life cares and a patient’s will. If there was his will, indeed, there would be no real

difference between the IE and the practice defined as VPE at the point a); and, thus, IE should not

be considered as an autonomous concept.

How can we distinguish among VPE, VAE and AS?

Voluntary passive euthanasia is an end-of-life treatment that is put into practice only when there

is already a cause of death outside the patient will.

In voluntary active euthanasia, however, the causes of death are directly related to patients will

and desires. It means that there is not a biophysics pathological cause of death, but the express

intention of a person to put an end to its own existence with the help of a third person.

Finally, in the assisted suicide the person – by his/her own action, but with the assistance of

another person – puts an end to one’s own life. So, the identity of the person, who really acts

1 SMITH S.W. 2012. End-of-Life Decisions in Medical Care. Principles and Policies for Regulating the Dying Process, in Cambridge University Press, 11-13. 2 GRIFFITHS J., ADAMS M. and WEYERS H. 2008. Euthanasia and Law in Europe, 76. 3 LEWIS P. 2007. Assisted Dying and Legal Change, Oxford University Press S.A. 4 SMITH S.W. 2012; LEWIS P. 2007.

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causing death, is central in order to discern whether it is euthanasia or assisted suicide; in AS,

indeed, the person is a proper suicide victim with just the assistance of another person, who –

however – does not accomplish actions that directly cause death.

What is, instead, the common feature of these practices? Basically, the will to die of the person

who decided to undergo them.

The element of will is central to understand what is, aside from human life, the other central

value involved in this topic.

3. Values, Legal Theory and end-of-life practices

When we talk about end-of-life practices two values must to be considered: on the one hand, we

have the human life and, on the other hand, freedom and self-determination of the individual. Both

are central on the discourse on human rights, enough to be classified as fundamental in all European

legal systems, including the one of the EU, and they form the basis for international declarations of

human rights.

What is the most important value and “wins” in facing euthanasia and assisted suicide issues?

Freedom and self-determination represent one of the pillars of Western legal culture, strongly

oriented towards individuals and individualism. The idea of a society composed by single

individuals has its roots in the principles of the French Revolution, when common people stopped

being treated as slaves – as objects under the law, owned by clergy and aristocracy – to become

citizens, everyone with their own legal subjectivity.

This assumption, simple and obvious nowadays, had already been made by Immanuel Kant in

his Critique of Practical Reasoning, where he had theorized his categorical imperative: individuals

are never to be used as a mere means, but ought to always be treated as an end (Mere Means

Principle, MMP)5. Kant’s assumption thus leads directly to look at human dignity as an unavoidable

element of societies, where respect for every human being, above all for one’s freedom, become

essential.

This freedom is nowadays recognized in all European Constitutions (for instance, in the Italian

one it is contained in articles 2 and 13) and the two most important, regionally, declarations of

human rights: the European Convention on Human Rights (ECHR) and the Charter of Fundamental

Rights of the European Union (CFREU). In the first one, freedom and self-determination are

recognized in article 5, whereas in the second one the article 6 states the right to liberty and

security. 5 KANT I. 1788. Critique of the practical reasoning, Classic Book International, 2010. Cfr. KARSTEIN S. 2009. Treating Others Merely as Means, Oxford University Press.

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In this case, a specific kind of freedom is particularly relevant: patients have the right to make

their own choices about the medical care and treatment they receive, keeping their decisions within

the boundaries of law.

I.e. medical self-determination, which is also recognized in the article 3 of CFREU, as it requires

“the free and informed consent of the person concerned”6. We shall recall Oviedo Convention on

Bioethics, too: in articles 1 and 2, it protects human dignity and freedom; article 5, instead, provides

informed consent as general rule, whereas article 9 requires respect of the will and desires expressed

by the patient when he was still conscious.

Human life here has to be consider as a value; this is why it deserves to be protected by the legal

system and everyone has a right to life, i.e. everyone has to respect the lives of others.

The right to life is also recognized by all the European constitutions and international

convention on Human Rights, because of the universal principle that first of all guarantees the

integrity of the human being. But rights are usually – and in this case too – given to protect the

interests of their holders. If there is a lucid and conscious request of the right’s tenants for stopping

one’s life, everything could change.

Thus, the legal system must make a choice: to protect life of a person even against their own will

or to respect their freedom and desires; in other terms, the Law must take a moral decision, where it

has to balance individual freedom with a supposed public interest of protecting human life at any

cost.

This balance immediately recalls the atavistic clash between interest theory and will theory in

Human Right Theory. The first approach professes to protect human rights in any case, even when

their holders are against such protection or are unable to even understand what it means to be rights’

holders. In other terms, human life will be considered as a value itself, to protect in any case,

because of its public dimension, that it is independent from its ownership. As opposed to that

position the will theorist assumes that it is necessary to always consider the conscience of the right’s

tenant, because it is unacceptable to have a right without the power of its holder to use it or not.

3.1. Balancing values: self-determination versus life

Again, the main question: what is more important between freedom/self-determination and life?

We need an axiological approach to establish what values we want either to protect or sacrifice.

6 Article 3 of CFREU: “1. Everyone has the right to respect for his or her physical and mental integrity. 2. In the fields of medicine and biology, the following must be respected in particular: (a) the free and informed consent of the person concerned, according to the procedures laid down by law”. Article 5 of Convention of Oviedo: “An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time”.

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If we decide to prefer a liberal approach, i.e. to protect the right of everybody to choose

between to live or to die, some advantages come out clearly:

a) first of all, freedom will have its biggest expression. In case of euthanasia, above all,

medical self-determination will be completely accomplished, because of the chance of the patients

to decide for death instead of a life that they consider not worthy of being lived;

b) moreover, equality may be considered more complete. Nowadays, indeed, in some States of

the EU it is possible to resort to end-of-life treatments described above. It means that the access to

these practices depends on the richness of the person demanding them. If every legal system

regularized end-of-life treatments, citizens’ economic ability would not matter anymore.

But some difficulties, of course, must be taken into account. Euthanasia and assisted suicide are

first and foremost social issues, but it is hard to think how to translate this peculiar matter in a legal

way. It is very difficult to decide what the limits of these treatments should be and under which

circumstances to allow these practices.

In this sense, the role of jurists, who are doubly burdened with responsibilities, is fundamental.

In the phase of elaboration of law, indeed, they are called to update each legal system in order to

guarantee and improve as much as possible the institution’s ability to answer better to social issues.

Moreover, the jurist (and particularly the judge) should apply the law in the best way possible, even

supplying the legislator’s updating function, whereby principle and Justice impose it. The protection

of human rights, indeed, is the main aim of the jurisdictional activity (being the idea of the judge as

bouche de la loi generally overtaken).

By the way, this can cause legal uncertainty; this ambiguity in law, obviously, impairs

everyone’s ability to foresee what are the consequences of their actions, both from a civil and from

a criminal perspective.

If, on the contrary, we rely on a system that enhances the principle of inviolability of life, even

the will of stopping one’s own life would not be enough to allow the same right’s holder to demand

euthanasia or commit suicide.

Some benefits of a pro-life direction are:

a) the extreme strengthening of principle of inviolability of life, with some important outcomes

regarding – for instance – criminal law, where death penalty must be definitely banned;

b) legal certainty about what actions are allowed and what are forbidden, giving to every

person the possibility to calculate exactly what are consequences of its actions.

But there are also some consistent risks to be pondered:

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a) the biggest danger coming from this conservative approach is the creation of strongly

paternalistic legal system. In other terms, imposing a certain moral view where human life is

untouchable, despite of the desires and opinions of a person who has to live, creates a sort of duty to

live until you die a natural death. This means that people do not dispose of their own life and they

must accept given values, with a strong lost in freedom and self-determination;

b) also the secular State and its neutrality seem to be endangered. This neutrality must be

considered in a broad sense, not just toward religions, but also with regards to the philosophic and

moral views, in order to allow every person to be free also in an ethical dimension. A nation that is

not neutral and secular puts in danger the essential value of freedom, imposing views and idea to its

citizenship;

c) last but not least, in a State with a conservative approach in end-of-life issue, inequality will

reach its peak, whereby rich people can go to countries where these practices are allowed and poor

ones are forced to follow rules of their nations. It is a phenomenon of forum shopping in bioethical

issues (nowadays a reality in Italy) that have to be faced taking political choices about euthanasia

and assisted suicide.

At the end of the day, until the Legislature makes a clear choice, the Judiciary will have to

decide how to balance these human rights; but the Judiciary is made by individuals, too, with their

own ethical and moral issues.

4. A brief comparative analysis

ECHR, nevertheless the centrality of self-determination principle also in the legal framework of

European Chart of Human Rights, has recognized a significant margin of appreciation to adherent

European Countries. This lack of common guidelines among the European Convention of Human

Rights adherents has contributed to the creation of a fragmented framework within their legal

systems.

In the EU there are only three countries where all end-of-life practices are allowed: Belgium,

Luxemburg and The Netherlands7.

7 In order to understand what is the procedure to follow in case of request of an end-of-life practice, it is interesting to use, as a case study, the example of The Netherland: first country in E.U. to have introduced euthanasia and assisted suicide. The Dutch Termination of Life on Request and Assisted Suicide Act (Wet toetsing levensbeëindiging op verzoek en hulp bij zelfdoding – Wtl – of 2002) intends to increase the degree of due care exercised by physicians when terminating a patient’s life, and to provide a legal framework. Doctors to be enable to proceed with them, thus, must comply with some due care requirements, as referred to in Section 2 Wtl, that emphasise the element of free and informed consent of the patient demanding end-of-life practices. More in detail: a) the physician is convinced that there has been a voluntary and well-considered request by the patient; b) the physician is convinced that the patient is suffering unbearably without the prospect of recovery; c) the physician has informed the patient about his or her situation and outlook; d) the physician is convinced, as is the patient, that there is no other reasonable solution to the

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In Austria, Croatia, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Spain,

Sweden and the UK, instead, just VPE is permitted, even without a clear legal framework. In

Switzerland, getting out of the European Union, but staying always in the Old Continent, law

openly admits assisted suicide, where the help for stopping life is given for a non-egoistic reason.

By the way, the European country with the most wide and permissive law about end-of-life

practices is – without doubt – Albania: where Euthanasia and assisted suicide have been legal since

1999. All these legislations are characterized by the necessity of a clear will of the patient, currently

given or – if in state of unconsciousness – presumed.

Finally, while Poland expressly denies euthanasia and assisted suicide, Portugal and Italy have

an unclear approach about end-of-life practices, with a strong public debate about it.

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CIVIL LAW AND “END OF LIFE” CASES

As seen above, in civil law the basic rule – which can be deduced from the most important

international legal instruments (such as the aforementioned article 3 of the CFREU and article 5 of

the Oviedo Convention (and also from the Italian Constitution)8 – is that, pursuant to the principle

of self-determination, no medical treatment can be imposed without the consent of the patient.

1. The patient’s consent

More in detail, the patient’s consent is a synthesis between two fundamental individual rights:

the right to autonomy of choice (or ‘self-determination’) and the right to health9.

situation in which the latter finds himself; e) the patient has been seen by at least one other independent physician, who has given his or her opinion, in writing, regarding the due care requirements listed in a-d above; f) the termination of life on request has been carried out with due care from the medical perspective. The patient’s request may consist of a current oral request but also of a written declaration of intention (wilsverklaring) by a patient who is no longer capable of oral communication, if the patient was aged sixteen or over when he made the declaration and was still mentally competent at that point. After the requested termination has been carried out, the physician must notify the municipal forensic pathologist. The notification must include a report, with reasons, regarding observance of the due care requirements. The municipal forensic pathologist forwards the report to the appropriate Regional Euthanasia Review Committee. The Committee consists of a lawyer (as chairman), a physician, and an expert on ethical or philosophical issues. The Regional Review Committee reviews each report of termination of life on request in order to determine whether the physician has acted in accordance with the statutory due care requirements. If its finding is that the physician acted with due care then the procedure is complete. If the Regional Review Committee finds, however, that the physician has not acted with due care it forwards the case to the Public Prosecution Service (OM) and the Health Care Inspectorate (IGZ). These two bodies then determine whether any further steps are necessary, and if so what these will be. 8 Articles 2, 13 and 32 of the Italian Constitution. 9 Decision of the Italian Constitutional Court no. 438/2008.

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As a result, the patient’s right to receive medical treatment is coupled with his/her right to

receive prior and adequate information regarding the nature and the development of the therapeutic

process, as well as of any alternative treatment. In this way, the patient will be able to

conscientiously decide whether to undergo a certain medical treatment and will also be able to

choose between different medical treatments or to interrupt them.

Therefore, Law no. 833/1978 allows to the state to force someone to accept a medical treatment

if he/she suffers from mental illnesses, since the patient is not able to conscientiously decide about

it10.

However, to be considered as the result of a conscious and deliberate expression of individual

freedom, the patient’s consent has to be:

- “Personal”, i.e. has to be expressed directly by the patient, provided that he/she is conscious

and capable of discernment;

- “Explicit”: consent has to be expressed, even orally when the written form is not imposed by

the law (as it happens, for instance, for kidney transplants or blood donations). However, doctors

often request a written consent even when this is not expressly required by the law, in order to

facilitate evidence that the patient has been duly informed;

- “Specific”: consent has to relate to the particular medical treatment in question, and cannot

be generic or all-encompassing (except in case of routine and low-risk procedures);

- “Informed”: the patient should receive detailed information in order to get a full knowledge

of the medical procedure’s nature, scope and extent, of its risks, of the expected positive results and

of the possible negative consequences. When the procedure is composed of several phases, the

information requirement extends to each and every phase and the respective risks;

- “Real” and “present”: consent cannot be presumed and has to persist for the entire

procedure’s duration, i.e. it could be withdrawn at any moment.

Absent any of these requirements, the medical treatment would be deemed to be illegal.

2. Medical treatments and end of life

As said, the rule of consent implies the right to refuse or interrupt therapies, even though this

could cause the patient’s death. Therefore, pursuant to our national law, the principle of self-

determination prevails over the principle of sanctity of human life.

10 In Italy, for example, this is the case of the “Compulsory Health Treatments”.

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In other words, the patient can ask doctors to interrupt life-sustaining treatments, which include

also nutrition and hydration. In fact, even these kinds of treatment presuppose medical knowledge,

are carried out by doctors and are based on chemical compounds.

This is a VPE: the interruption of life-sustaining treatment can be considered as a choice of the

patient to let the disease follow its natural course. However, in this case, two problems could arise:

a) When the patient is unconscious and incapable to understand, could his/her legal

representative ask doctors to suspend life-sustaining treatments, provoking the patient’s death?

b) Can a conscious person appoint another person as a representative for the moment in which

he/she will not be conscious and can he/she give directives for the representative to follow, too?

This paper tries to offer some answers to these burning questions based on the Italian legal

system as, in this area, the Council of Europe’s member States have been afforded a significant

margin of recognition by the European Court of Human Rights11.

As it was ruled in Pretty vs. United Kingdom (29 July 2002, 2346/02), articles 2 and 3 of the

European Convention of Human Rights do not recognize a right to die or to choose death rather

than life, neither require States to provide a lawful opportunity for any other form of assisted

suicide. However, prohibiting end of life practices could constitute an interference with the right to

respect for private life (as guaranteed by article 8, paragraph 1 of the same Convention). Therefore,

it should be verified whether this interference conforms with the requirements of the second

paragraph of article 812.

From the analysis of the ECHR’s jurisprudence, it appears that the State acts in compliance with

the European Convention on Human Rights only when national legal provisions compose a

“sufficiently clear legal framework”, but is it possible to conclude that the Italian legal system

currently provides for such “clear legal framework”?

Current Italian law does not exhaustively solve the abovementioned problems. Therefore, Italian

judges played a delicate role in balancing the different applicable principles. The remaining part of

this paper will explore whether their decisions did in fact provide a “clear legal framework” on the

interruption of life-sustaining treatment, and it will analyse some new legal provisions and

proposals which may significantly change the situation. In the end, the paper will examine the

11 At the moment, there is no consensus among the Council of Europe’s member States about withdrawal of life-sustaining treatments. See Koch vs. Germany (ECHR, 19 July 2012, 497/09), Lambert vs. France (ECHR, 5 June 2015, 46043/14). 12 In Pretty vs. United Kingdom, it did not appear to be arbitrary to the Court that the English law reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allowed due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence.

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possible conflict between personal and professional ethics: should the judge give weight to his

personal moral code when deciding on “end-of-life” cases?

3. What to do when a patient is unconscious and incapable of discernment: the Englaro case

Eluana Englaro was an Italian woman who in 1992, at the age of 21, had a terrible traffic

accident: the road surface was frozen and covered with snow, she lost control of her car and crashed

into a lamppost, suffering a severe skull injuries and the paralysis of all her limbs. Then she fell into

a persistent vegetative state (PVS), that prevented her from communicating with other people.

When her parents considered the situation to be desperate, they asked doctors to withdraw life-

sustaining treatments (nutrition and hydration through a nose-gastric tube), arguing that, had she

been conscious, she would have rejected useless medical treatments, as she had expressed this idea

in the past. Thus, in 1999, Eluana’s father (Beppino Englaro) started judicial proceedings in order to

obtain the interruption of any life-sustaining treatment. Finally, in 2007, the Italian Supreme Court

upheld his appeal and ruled that life-sustaining treatments could be withdrawn at the request of a

legal representative of an unconscious and incompetent person, who: shall act in the unconscious

person’s sole interest; shall decide not “in place of” or “for”, but “with” the unconscious person;

and shall take into account the wishes expressed by the patient before irreversibly losing

consciousness.

In conclusion, according to the Italian Supreme Court, life-sustaining treatments can be

withdrawn when two requirements are satisfied:

1) according to a rigorous clinical judgment, the condition of vegetative state has to be

irreversible and, according to internationally recognized scientific standards, there has to be no

medical basis suggesting the possibility of some, albeit weak, recovery of consciousness and return

to the perception of the outside world;

2) according to clear, unequivocal and convincing evidence, the request has to be expressive of

the patient’s intention, inferred from his previous statements, personality, lifestyle and beliefs,

corresponding to his/her way of conceiving the idea of human dignity, before falling into a state of

unconsciousness.

In Englaro’s case, these two requirements were met. Hence, life-sustaining treatments were

withdrawn and Eluana Englaro died in 2009.

As said, this question was not explicitly regulated by any law.

The Italian judges deduced the rule for the individual and concrete case from general principles

of the whole system, taking into consideration the Italian Constitution and other international legal

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instruments13. In this way, they granted protection to the right to interrupt medical treatment, which

bars criminal liability, too. Identifying the requirements for the exercise of this right, they created a

“clear legal framework” for VPE, since death is caused by the voluntary and free refusal, by the

patient, of medical treatments necessary for survival.

However, pursuant to the Englaro principles, the judges are called to carry a great weight on

their shoulders: they shall clearly assess the patient’s statements, personality and beliefs in order to

reach a proper decision and this may not be easy because of the patient’s vegetative state.

Therefore, judges have to carefully check the trustworthiness of all persons who are asked to testify

about the patient’s statements, personality and beliefs. Most of all, judges should accomplish this

task forgetting about their own ethical vision of the end of life matter.

4. Appointment of a representative: the support administrator and the living will

The second problem in the current regulation of “end-of-life” issues – as said above – concerns

whether a conscious and competent person can appoint a “support administrator” who will execute

that person’s directives in case he/she becomes unconscious and unable to give his/her consent to

medical treatment.

Also for this legal question there was no explicit answer in the existing positive Italian law.

However, the judges tried to use an institution, the support administrator, which was created for

different purposes14, in order to pursue other objectives.

Pursuant to Italian law, the support administrator is a curator that could be appointed by a person

who is not able to look after his own interests, as a result of an infirmity or a physical or mental

impairment (art. 404 of the Italian civil code).

In that respect, several Italian courts of first instance15 solved the problem in a positive way.

Nevertheless, in 2012 the Italian Supreme Court16 ruled that a support administrator could not be

used in this case and for this purpose, because it would be intended to offer a helping tool to people

who have no autonomy, even though those persons are not in a condition of sickness or incapacity.

Pursuant to Italian law, the procedure of appointing such curator would necessitate the prior

occurrence of a condition of sickness or incapacity.

13 Article 3 of the CFREU and articles 5 and 6 of the Oviedo Convention. 14 As we said, the support administrator is “a curator that could be appointed by a person who is not able to look after his own interests, as a result of an infirmity or a physical or mental impairment”. 15 Court of Modena, 5 November 2008 and 23 December 2008; Court of Cagliari, 22 October 2009; Court of Firenze, 22 December 2010. 16 Italian Supreme Court, 20 December 2012, no. 23707.

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After this ruling, other Italian courts of first instance made an interesting distinction17: a person

in good health, with no foreseeable risk of future infirmities or incapacities, cannot appoint a

support administrator. On the contrary, recourse to a support administrator can be made when the

person suffers from an ongoing pathological situation, or when the pathology has not yet manifested

its negative effects but has already been clinically diagnosed.

It is not clear whether this jurisprudence established a “clear legal framework”, as there have

been disagreements between Italian courts on this topic. Moreover, doubts persist as to what

happens if the individual changes his mind after having appointed a support administrator: should

that person follow the same long judicial procedure in order to amend its directives and/or the

administrator?

A different and shorter mechanism could be imagined: a “living will” containing these

directives, amendable in an easier and faster way.

5. New Italian laws

A recent Italian law18 now provides a different instrument which could be useful to solve the

discussed problems, but could create other questions. This law distinguishes between three

situations: marriages, civil unions and partnerships. Pursuant to paragraph 40 (regarding

partnerships), each partner may designate the other partner as his representative with full or limited

powers: in case of illness determining incapacity, for decisions on health; in case of death, with

regard to organ donation, treatment of the body and funeral arrangements.

This law seems to allow partners to do what Italian law does not allow married couples to do. It

seems that the first partner could appoint the second partner as a legal representative who would

decide almost everything related to the first partner’s health. The expression is generic: therefore,

the appointed partner could decide which medical treatment could be carried out or continued and

which medical treatment could be interrupted.

However, the law creates problems of equality. If this strong legal instrument is provided for

partnerships, can also married couples and civil unions seek to benefit from this legal instrument?

Therefore, they could bring such request before the Constitutional Court. Should their request

succeed, there would be no further need to appoint a support administrator, and therefore all the

problems raised by that institution would vanish, at least for couples.

17 Court of Modena, 1 July 2015 and 10 December 2015. 18 Italian Law no. 76/2016 (20 May 2016).

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Moreover, at the time of writing, the Italian Parliament is discussing a proposal of law

concerning life-sustaining treatments19. Although the legal framework seems to be quite clear after

the Englaro case, this new law would clearly provide that “in case of patients with deadly prognosis

in the short term or imminence of death, the doctor has to abstain from any unreasonable obstinacy

in the administration of treatments and from useless and disproportionate treatments” (art. 2,

paragraph 2). Moreover, the proposal allows each conscious person to “express his/her will

concerning medical treatments” and to appoint a “fiduciary” through a sort of living will (art. 4).

Should the proposal be approved, there would be a “clear legal framework” also with reference to

the appointment of a representative for the moment in which the person will not be conscious.

In Italy VAE and AS have no specific regulation, so they fall under the general types of offense

of murder (or – depending on circumstances – murder of consenting victim) and instigation or help

to suicide.

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CRIMINAL LAW AND “END OF LIFE” CASES

1. The criminalization of euthanasia and assisted suicide. The “principle of last resort”

The ethical dilemma implied by end-life decisions has several ramifications, in particular from

the perspective of criminal law. To that regard, the principle of last resort (ultima ratio) has an

important role in framing the procedural and ethical underpinnings of this issue.

According to this principle, the criminal sanction should be the law’s ultimate threat, because it

is uniquely coercive and, in the broadest sense, uniquely expensive, too.

The implementation of the principle of last resort - in the system of criminal law - often requires

a connection to ethical values accepted by a community, in a given historical moment, since it

means asking difficult questions: how to decide whether to punish and with what severity? Who has

to make this decision?

To discuss the first issue, we shall highlight some differences between EU national legal

systems. The Common-Law approach understands the principle of last resort more in terms of a

moral restraint in the use of criminal legislation. In this perspective, the criminal law is a highly-

specialized tool of social control, useful for certain purposes but not for others. This means that, if

improperly used, it can produce more evil than good.

The decision to criminalize any particular behaviour must follow an assessment and balancing of

gains and losses. This is particularly hard when criminal law overlaps with the regulation of matters

19 Draft law no. 2801, recently approved by the Italian Chamber of Deputies, now under examination by the Senate.

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linked to private morality and social welfare. In these cases, the first aim of the principle of last

resort should be avoiding the misusing the criminal sanction to enforce public standards of private

morality, influencing the accepted ethical values.

In fact, if criminal justice should be focused only on the essential (by protecting persons and

properties) then it would be improper20 and usually socially harmful for the law to regulate the

private moral conduct of citizens. With this born in mind, it is a natural corollary that the moralistic

deviations in our criminal justice system must be eliminated.

In the continental experience (especially in Germany and in Italy) the approach is more inclined

to infer the principle from the constitutional framework of the State under the rule of law. In this

perspective – also embraced by part of Scandinavian doctrine21 – the ultima ratio principle is

primarily derived from the principle of proportionality (or necessity): the criminal sanction is, by

definition, capable to harm fundamental rights (mainly personal freedom), which may be restricted

only when the aim of protecting a legitimate legal interest cannot be achieved by any other less

invasive means.

The understanding of what can be considered a legitimate legal interest worthy of criminal

protection is heavily disputed. Several authors in the German22 and Italian23 doctrine tried to solve

this dispute by demanding the constitutional significance of the legitimate legal interest as a

mandatory requirement to get access to the criminal protection.

I.e.: the criminalization of an illegal behaviour is possible when assessing that the constitutional

status of the legal interest protected is above the status of the fundamental right restricted by the

criminal sanction.

Once again, this theoretical basis is hard to apply when a matter linked to the private moral

conduct of citizens is involved, such as striking the right balance between life and self-

determination.

Indeed, when both the terms of comparison are so constitutionally significant, it is difficult to

establish common standards to balance the priority or weight of such conflicting interests and

20 N.MORRIS, G.HAWKINS, The honest politician’s guide to crime control, Chicago and London, 1969. 21 N.JAREBORG, Criminalization as Last Resort (Ultima Ratio), Ohio State Journal of Criminal Law, 2005, p.521-533, available from http://moritzlaw.osu.edu/osjcl/Articles/Volume2_2/Symposium/Jareborg-PDF-3-17-05.pdf (accessed on 17 September 2007); P. MINKKINEN, The ‘Last Resort’: A Moral and/or Legal Principle?, Oñati Socio-legal Series [online], 2013, 3 (1), p. 21-30. Available from: http://ssrn.com/abstract=2200411. 22 See in particular the Recthsgutstheorie. For a general summary of the evolution of the theory see M.D. DUBBER, Theories of Crime and Punishment in German Criminal Law, American Journal of Comparative Law, 2006, p. 679 also available from http://ssrn.com/abstract=829226. 23 See in particular the Teoria costituzionale dei beni giuridici a rilevanza implicita. For a general overview of concepts such as “legitimate legal interest” or “legal good” see A.CADOPPI, Recent Developments in Italian Constitutional-Criminal Law, Alberta Law Review, 1990, pp. 425-442.

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should be the legislature to find. Policy makers, rightfully elected, are the only political subjects

who may take such decisions in criminal law.

In criminal codes, typical of the legal positivism characteristic of continental experience, life and

self-determination are widely protected. The typical structure of criminal offences is based on

causality, oriented to the production of the final incriminated event. This means that all conduct

capable of producing the final event – thanks to a continuous chain of consequential causes all

determined by the conduct itself – are criminalized. This legislative technique reveals the firm will

to incriminate all possible imaginable offences and the importance given to the legitimate interests

protected in the hierarchy of constitutionally relevant values.

2. “VAE” and “AS” in some European criminal systems

In England, the VAE has no specific status. It is regulated under the general criminal offence of

murder. To determine whether there is criminal liability, prosecutors would have to prove the

defendant unlawfully killed another person with the intention to kill that person or to cause that

person grievous bodily harm. This means that, first and foremost, physical evidence of some

affirmative action that caused death is required.

That the defendant had the intention to kill may be inferred, upon consideration of all the

evidence, if death is his aim or purpose (direct intent) or if it is a known virtual certainty of the

accused’s actions (oblique intent). On that basis, an act of VAE may be considered a form of

voluntary manslaughter. This offence carries a maximum sentence of life imprisonment. In terms of

determining guilt or innocence, it doesn’t matter if the victim had consented to being killed and it

doesn’t matter whether the offender’s motives were entirely merciful. The motives of the defendant,

however, are relevant in determining the term of the sentence.

AS is also a criminal offence. According to Section 2 of the 1961 Criminal Law (Suicide) Act,

we are talking about an act capable of encouraging or assisting (or intended to encourage or assist)

the suicide or attempted suicide of another person. The offence carries a maximum of 14 years

imprisonment. The same section also states that no proceedings shall be instituted without the

consent of the Director of Public Prosecutions (DPP). This means that the DPP, upon examination

of the evidence, may consent or decline to prosecute depending on what is in the ‘public interest.’

To guide prosecutors in their activity, the DPP has issued a ‘policy for prosecutors’ to assess in

specific cases whether a prosecution may be in the public interest or not. This policy does not in any

way “decriminalise” the offence of encouraging or assisting suicide, because nothing in it can be

taken as an assurance that a person will be immune from prosecution.

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The German Criminal Code legalises AS and determines as an offence only “murder of the

victim who consciously consents” (Par. 216 StGB). The law does not require any specific

motivation to allow the practice of assisted suicide. However, the rise in suicide cases, along with

the increasing offer by private health care providers of forms of managed or assisted suicide,

prompted the German Government (and the Parliament) to introduce some important changes. The

Bundestag in fact decided in 2015, in the context of four reform projects concerning AS

(Sterbehilfe), to criminalise (new § 217 StGB) any commercially organized euthanasia activity,

which was allowed until then. This reform has met with opposition24. It forbids a “commercially

organized” (geschäftsmäßig) medicine, in the face of a public service which formally isn’t

“commercial”, but is certainly “professionally” organized. Punishment is expressly excluded only

for relatives or partners who act in a “non-commercial” way, therefore any “professionally”

organized help falls under the prohibition.

The Netherlands is the only country that exploited the possibility accorded by ECJ, which urged

each Member State to make use of its discretional appreciation in ruling VAE and AS25.

Outside the European Union (but within the European legal framework), Switzerland permits to

carry out AS, to the extent to which it is carried out by private authorised actors (‘right-to-die’

organisations –‘RTDs’ and medical professionals) who shall ensure that the procedures won’t

develop in any way in a sort of VAE (which is criminalized). Once the suicide has occurred, the

RTD lay helper informs the local police service for a “post-mortem verification”. There have only

been a small number of trials for persons accused of going one step further than AS and, in effect,

performing VAE.

According to this brief excursus we can conclude that most of the European legislators have

refused to implement the principle of last resort in an organic discipline dedicated to VAE and AS.

Most governments and parliaments (with the notable exception of the Dutch and Swiss institutions)

decided to criminalise these practices without any distinction or – possibly worse – to ignore the

phenomenon altogether. This would mean the application of the general criminal offences of

murder and assistance to suicide. This is precisely the opposite result of what the ultima ratio

principle tries to achieve.

The described trend shows two things:

24 See the Resolution signed by 141 German professors in universities of law, available from https://idw-online.de/de/attachmentdata43853.pdf. 25 In principle, these practices remain punishable offences but subject to the conditions specified in the Act and if carried out by a physician they are not deemed to be punishable. So, the physicians have a special ground for exemption from criminal liability; to invoke it they, after reporting the termination of life on request, must prove to the municipal forensic pathologist and to the Regional Euthanasia Review Committee that the procedure complied with the checklist mentioned in note n.8.

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A) on one hand, that the political-legal situation is not yet ready to recognize a fundamental

right of the sick to take positive actions capable not only of reducing/eliminating suffering but also,

on request, to compel physicians to respect the will to end situations of hopeless life, objectively

marked by aspects of normal intolerability;

B) on the other hand, that a sick person, is far from being considered as a bearer of rights that

force society to respect the choice not to suffer in extreme situations, even where the future of the

sick cannot be independently arranged. Rather, society wants to protect him/her, compliant to a

paternalistic point of view, today no longer sustainable in the context of individual choices affecting

one’s existence;

It can be useful, once the legislative approach to the matter is defined, investigate further the

application of law by the Judiciary, especially in those States where VAE and AS are not

specifically regulated, as Italy.

The cases below are two remarkable example of reasonable and balanced judiciary application of

an underdeveloped legislation.

3. Piergiorgio Welby and DJ Fabo’s odysseys: Italian leading cases

Piergiorgio Welby was affected by “Facio-Scapulo-Humeral Dystrophy”, which is the

progressive degeneration of the skeletal muscles. Progressively he lost his ability to walk, then

underwent a tracheotomy and in the end, he was connected to a ventilator. Thoroughly conscious of

the possible evolution of his illness, in September 2006, Welby declared his will in a letter to the

President of the Republic, describing his situation and requesting to end his suffering. Physicians

refused to follow this declaration and forced Welby’s family to involve the judiciary to obtain the

disconnection of the artificial respirator under terminal sedation.

In an ordinance filed on December 16th 2006, the judge declared Welby’s request to be

completely unacceptable because, despite the acknowledged constitutional significance of personal

rights as guaranteed in articles 2 and – specifically for medical treatment – 32 of the Constitution,

the request of interruption of medical therapy was not legally protected. The judge observed that the

legislation is oriented in the opposite direction, as can be easily seen in Article 5 of the Italian civil

code – which prohibits acts of disposition of one’s own body that may result in permanent damage

– and Articles 575, 576, 577 n.3, 579, 580 of the Italian criminal code, which punish homicide and

AS.

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Welby decided to proceed anyway, with the contribution of the anaesthetist, who collected once

again the patient’s will and, in the presence of Welby’s family, proceeded to sedate and detach him

from the automatic respirator.

An examination of this conduct was conducted by the Office of the State Prosecutor in Rome.

The prosecutors came to a conclusion, based on the outcome of medical-legal report, which

excludes sedation as a significant cause of death, stating that the only cause of death was respiratory

failure due to the disease. The request for the dismissal of the case by the prosecutor was rejected

by the preliminary investigations judge, who compelled the Office of the State Prosecutor to set up

a mandatory imputation against the defendant – the anaesthetist – for the offense of “consensual

homicide” (a type of offence under Article 579 of the Italian criminal code, which can result in up

to 15 years of imprisonment).

The proceedings came to an end on July 23rd of 2007, with the absolution of the defendant. Judge

in this case – to justify the right to refuse a medical treatment – mentioned Article 32 of the Italian

Constitution, which clearly states that “no one can be bound to a particular medical treatment if not

under the provision of law” as well as Article 13 which states that “personal liberty is inviolable”.

The judgement recognized that the defendant’s conduct might fall under the Article 579 of the

Italian criminal code, but as well in this particular case the conduct was in the context of a

therapeutic relationship, and was therefore an expression of the patient’s constitutional right to

refuse unwanted medical treatment, an "inviolable personal right, immediately prescriptive and

effective in our legal system, included amongst the most highly protected individual values”. This

means that it is considered as a fulfilment of duty and, as such, the defendant was not liable under

article 51 of the Italian criminal code.

Note that in the Englaro Case, instead, the point was that the patient had a right to refuse a

medical treatment. I.e. the duty of the physician mirrors the right of the patient and exclude criminal

liability.

Fabiano Antoniano, nicknamed DJ Fabo, was left blind and paralysed from the neck down after a

car accident in 2014. After undergoing therapy for his condition, he called on Italian politicians to

pass legislation permitting AS and became an emblem of the campaign to legalize assisted dying in

Italy. Not being considered by politicians his request, he had to move to Switzerland to undergo AS.

Marco Cappato – right-to-death activist and Radical Party member – who accompanied the Italian

DJ in his final journey, is now charged with breaking the Italian law, which, as seen, forbids AS. He

could face up to 12 years in prison.

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The two prosecutors requested Cappato’s acquittal to the preliminary hearing judge, ruling that

in such cases the right to life was not violated. In fact, the patient suffered from an objectively

assessable terminal or serious illness causing intolerable suffering and, because of this condition,

the simple refuse to undergo further treatments (acknowledged in the acquittal of Mario Riccio by

the Judiciary who ruled Welby’s case) would have resulted in an unacceptable degradation. It

would have forced DJ Fabo into a prolonged agony up to several days, exposing him to physical

and psychological distress. DJ Fabo, according to the Office of the State Prosecutor, exercised his

right to respect for human dignity, which implies that the right to self-determination shall prevail on

the principle of the unavailability of life. This turns AS – at least in this specific hypothesis – from

criminalized fact (for the person that helps the suicide) into an assist to the exercise of a right.

At the moment, we are writing this paper, the judge of preliminary investigation refused the

acquittal, but has not yet taken a decision about DJ Fabo’s case; the hearing will be held on July 6th

and then we will know if he/she will endorse the prosecutor’s thesis.

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CONCLUSION: PERSONAL ETHICS VS PROFESSIONAL ETHICS

1. Civil law

The examination of the Italian jurisprudence reveals that judges often have to make hard choices

in cases in which the lack of clearly applicable legal provisions force them to deal with

philosophical, political and religious questions, but they cannot refuse to decide, since the Italian

Constitutional Court’s considerations regarding abortion seem to be applicable even to end-of-life

issues.

In 1987, the Naples Court of first instance asked to the Constitutional Court whether it was

possible for a judge to raise conscientious objection when adjudicating cases of abortion. The

Constitutional Court rejected the request, as every judge has to conscientiously fulfil the duties

involved in his charge.

Based on the Constitutional Court’s judgement, it is possible to affirm that in the end-of-life area

(as in all the areas of judicial interest) the judge shall follow a set of fundamental rules:

1) the judge shall reach a decision, even when no laws appear to be clearly applicable, as

he/she cannot remain silent or raise a conscientious objection; otherwise, he would deny judicial

protection to the individuals asking for his/her determination; there is a clear difference with

doctors, who are allowed to raise conscientious objections in this area;

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2) the judge shall decide by taking into consideration all the different general principles that are

relevant for the case; these principles could derive from national and/or international law;

3) the judge shall strike a balance between the different applicable principles;

4) the judge shall decide according to his or her prudent assessment.

All of these rules are part of judges’ professional ethics. Therefore, in the conflict between

personal ethics (philosophical, religious or political beliefs) and professional ethics (rules that

judges have to follow when they decide cases), the latter shall prevail – even when sensitive issues

like those relating to the end-of-life area are concerned.

2. Criminal law

Given the described situation – speaking about the state of the criminal regulation of VAE and

AS – very often the Judiciary is charged with the task of finding a solution to a specific case

without referring exclusively to a legal basis.

In fact, despite the effect of the last resort/ultima ratio principle serving to restrict the scope of

criminal legislation has been expanded – de jure condendo – to the level of application of law, yet

the application of such interpretation remains unclear.

That is the reason why judges may often face the hard task to take the choice of making use of

equity, which can be inspired by personal ethics, even unconsciously. This approach follows the

acknowledgement in society of the centrality of the right of self-determination in relation to

existential choices.

The push for an organic regulation of VAE and AS has not been welcomed by the legislator, but

it is also not ignored in courtrooms where law can be interpreted to achieve a fairer application, as

seen in Welby and Dj Fabo’s cases.

The solutions proposed in these kinds of litigations, although necessary to make substantial

justice, will be taken after an intimate struggle by the judges between their own conscience and

loyalty to their duties. The role requires the judges to apply the law as it is set by the legislator, but

also to be fair and equable.

The symbol of the scale is useful as ever: on one plate, stands the duty to punish, which seems to

be clear and written in the criminal law; on the other, the duty to respect a fundamental right, which

comes from the evolution of social ethics, but can push the judge beyond the limits of his power,

since he/she can not create or abolish the law.

And he/she most solve the dilemma sitting at his/her desk, remembering the person who wants to

choose how and when die.