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Le suicide assisté en Italie. L’affaire Cappato

Mr Marco Cappato, a right-to-die activist, is currently accused of helping Fabiano Antoniani, better known as DJ Fabo, take his own life. More precisely, Mr Cappato accompanied DJ Fabo to the Swiss clinic where he committed assisted suicide. In February 2018 a Milan court sent the case to the Constitutional Court, asking it to verify whether Article 580 of Italy’s Criminal Code (that punishes instigation to suicide and that was approved during the fascist regime), complies with the 1948 Constitution.
Following a car accident in 2014, DJ Fabo had remained tetraplegic. From 2014 to 2017 he had been artificially fed and partially supported by a ventilator. During that period he was suffering from frequent muscular spasms, causing him considerable pain. In May 2016 DJ Fabo contacted the Swiss association called Dignitas, whose core mission is to help people exercise their right to die with dignity. During the same period, he met Mr Cappato, who declared himself available to accompany DJ Fabo to a Dignitas facility, placed in Switzerland. Mr Antoniani made then an application to the association, which granted his request. In February 2017 Mr Cappato drove him to the Switzerland’s facility.
Once he arrived at the clinic, doctors examined Fabiano, giving their approval to the procedure. Through a device operated by the patient’s tongue, DJ Fabo was then able to inject into his veins a lethal cocktail of barbiturates, which caused him an apparently painless death.
Back to Italy, Mr Cappato denounced himself to the police. In February 2018, Milan’s criminal court in charge of the Cappato case decided to halt the proceeding, and raise the two following preliminary questions to the Constitutional Court : 1) is Article 580 of the Italian Criminal Code compatible with patient’s fundamental rights (including Article 8 ECHR), as interpreted by the European Court of Human Rights ? ; 2) is the penalty (imprisonment from 5 to 12 years) provided by Article 580 of the Italian Criminal Code compatible with Constitutional provisions (including Article 32 of the 1948 Constitution) ?
According to the Constitutional Court, there are nowadays situations that were not imaginable at the time when the Criminal Code entered into force. Some of these situations refer to those who wish to put an end to their life, just as it was the case for Mr Antoniani. This is because those people suffer from an incurable disease that causes them severe and intolerable pain. They are kept alive by life-sustaining treatments and they retain full mental capacity.
It should be noted that, under the current Italian legislation, in such cases patients are already allowed to put an end to their life by refusing some medical treatments (This option is also granted to the patient by a recent law No 219/2017, which explicitly recognises the patient’s fundamental right to refuse any medical treatment). So, according to the Constitutional Court, today’s legal system creates legal vacuums, under which vulnerable persons would not be adequately protected against potential abuses. This means that Italy’s legislation needs a framework act establishing in detail the conditions under which patients can be lawfully helped to put an end to their life. In other words, the State’s legal system should ensure that such decisions are made under medical control, within the context of a relationship based on mutual trust between patients and doctors. In order to avoid the risk of a premature renouncement to palliative care, that kind of legislation could allow patients to live a dignified life even in a context of an incurable illness.
For all these reasons, the Constitutional Court decided to adjourn the case to a new hearing, which will be held on 24 September 2019. This will give the Italian Parliament an opportunity to approve legislation in line with the principles established in the Italian Constitution, as interpreted by the Constitutional Court.
In this manner, the Court has given rise to animated debate in a context where ethical issues are strongly interconnected with both State-Churches relationship and the principle of secularism (See The Place of Minority Religions and The Strategy of Major Denominations. The Case Of Italy).

D 5 février 2019    AFrancesco Alicino

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