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2019

  • February 2019: Religion-inspired terrorism and religious freedom in Italy

In response to the need to prevent terrorist attacks, during these last years in Europe the legislators tend to emphasise that terrorism implies additional activities, such as those enabling groups to maintain and further develop radical ideas about Islam and Islamic precepts. Such behaviour should be punishable when it leads to the danger that terrorist acts could be committed. This means that the penal laws are here focused on the dangerous criminal tendency. In other words, when a person endangers the basic elements of a constitutional democracy, the penal sanctions may be imposed against him or her, even though his/her conduct is not directly connected with the (terrorist) attacks that cause injuries, deaths and other material damages. Under the strategy to prevent violent and indiscriminate assaults, even the mere dissemination of messages or images glorifying terrorism may itself be considered a criminal (terrorist) activity. In the lights of the existing terrorist emergency, it could be judged as a heinous crime that, as such, leads to the application of penal sanctions, including restrictions on personal liberties, such as religious liberty.
Moreover, in this field, Italy has developed high-level skill legal tools which, not surprisingly, are now also being used to challenge religion-inspired terrorism. The sophisticated system of “preventive measures” (regulated by the legislative decree of 6 September 2011, better known as ‘the anti-mafia code’) is an illustrative example of that.
The aim of preventive measures is to integrate the Italian system of criminal law. The basic idea is that the protection of fundamental interests of the State (like the maintenance of a good level of security against potential threats) cannot be delegated exclusively to the repressive function of the penal law. This explains why the application of preventive measures is based on ‘symptoms of dangerousness’. In other words, the need to prevent some persons from committing or supporting heinous crimes justifies preventive ante delictum measures.
It remains that, even though the penal law does not formally regulate the preventive measures, the practical consequences of their sanctions are not very different from those related to the penal rules. For example, the application of the preventive measures imply either the prohibition of residence (divieto di soggiorno) in one or more given cities or, in the case of particularly dangerous persons (persona di particolare pericolosità), an order for compulsory residence in a specified municipality (obbligo di soggiorno in un determinato comune). The violation of these provisions is punishable with imprisonment.
Now, after the Italian Parliament approved the 2015 anti-terrorism decree, the preventive measures system can also be applied to combat the current forms of religion-inspired terrorism. More specifically, these measures can be applied to “those who, working in groups or individually, are engaging in preparatory acts, objectively relevant, directed to take part in a conflict in a foreign territory in support of a terrorist organization which pursues the aims laid down in article 270 sexies of the Italian penal code”. This complicates the relationships State-Islam(s), especially in the light of other pressing problems, like those related to immigration.
In this sense, the climate of fear and insecurity has produced some sort of epistemological obstacles, based on which media, many politicians, and public actors, tend to consider Islam and the corresponding groups unable of a factual collaboration with the State. This is because the Islamic organizations are considered ‘others’, different from the denominations deemed more compatible with the traditional system of State-confessions relationship established in Italy until now: a system that has been determined through the implementation of Articles 7 and 8 of the Constitution as well as the 1159/1929 Law, approved during the fascist regime.
In brief, the ways of addressing these problems are now being strongly influenced by the current threat of religion-inspired terrorism. A threat that is accentuated according to the 2018 security decree (no. 113) – also called Salvini decree, named after Matteo Salvini, interior Minister and leader of the far-right League, won a vote in Parliament last December 2018. Not surprisingly, this decree stresses the need to prevent illegal acts perpetuated by both mafia-type organizations and terrorist groups (Articles 16-23). The fact that the 2018 decree does not mention Islam is very significant; in reality, that absence is notable only for its deafening silence.
On other words, when facing issues regarding religious freedom and the relative constitutional provisions, the attitude of policy-makers is often subject to issues concerning Islam. In the light of the emotional wave resulting from the climate of insecurity and fear, these issues could be influenced, if not manipulated, by the artificial and sensational analyses regarding both the current forms of religion-inspired terrorism and the pressing process of immigration.

  • February 2019: Assisted Suicide in Italy.The Cappato case

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 6 February 2019    AFrancesco Alicino

CNRS Unistra Dres Gsrl

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