This is part II of a two-part series of blog posts examining the persisting legal uncertainties surrounding assisted suicide in Italy in light of recent ECtHR jurisprudence. Part I explored the Italian Constitutional Court’s cautious yet evolving stance on assisted suicide, focusing on decision no. 135/2024 and its apparent influence by Karsai v. Hungary. Part II shows how the Court invoked Strasbourg case law without fully engaging with its underlying legal reasoning, and therefore critically analyzes the Constitutional Court’s ruling in light of the ECtHR’s broader case law.

Introduction

In Part I, we saw how Italy’s Constitutional Court—faced with decision no. 135/2024—leaned on Karsai v. Hungary to uphold a tightly drawn exception to the criminal ban on assisted suicide. However, unlike Karsai’s focus on a positive obligation to legalize physician-assisted dying (PAD), the Italian case challenges whether the dependency on life-sustaining treatment requirement in the PAD access procedure is discriminatory and sufficiently defined. Therefore, it does not seem appropriate to approach the present matter as a question of whether the State has a positive obligation to adopt measures that ensure access to PAD, or even whether such an obligation arises from Art. 8, given that Italy has already granted some form of access to PAD, albeit with stringent limitations. Instead, it can be argued that the case raises the question of whether the State has failed to provide clear guidelines defining if, and under what circumstances, medical practitioners within the National Health Service are authorized—without incurring criminal liability—to prepare the lethal drug that the patient will self-administer, and whether the requirement at stake effectively protects vulnerable people from feeling pressured into ending their lives. Once again, we are called to examine and analyze the obligations arising from Art. 8; however, this time from a different perspective, namely that of a State that already permits, albeit with certain specific limitations, access to the procedure of assisted suicide.

Scrutinizing Dependency on Life-Support Treatment under Art. 8: Legal Certainty…

In order to conduct such an analysis, it is necessary to seek the answer within the ECtHR’s case law. When examining whether an interference is compatible with Art. 8 of the ECHR, the first question is whether the challenged measure interferes with a right protected by Art. 8. It is almost undisputed that the essential purpose of Art. 8 is to protect the individual from arbitrary interference by public authorities.^[1] In Koch v. Germany, the Court acknowledged that an individual’s right to decide in which way and at which time his or her life should end, provided that he or she was in a position freely to form his or her own will and to act accordingly, was one of the aspects of the right to respect for private life within the meaning of Art. 8 of the Convention.^[2] Therefore, it should not come as a surprise that the Court held on multiple occasions that imposing a ban that prohibits assisted suicide constitutes an interference with Art. 8.^[3] However, any interference under Art. 8 must be justified according to the second paragraph of the article, meaning that it must be "in accordance with the law" and "necessary in a democratic society" for one or more of the legitimate aims listed therein.^[4] The question, then, is whether the requirement at stake can be justified by reference to Art. 8(2): namely, is the interference ‘in accordance with law’ and ‘necessary in a democratic society’?

As a means to ensure compliance with the legality requirement of Art. 8(2), the domestic legal basis must be sufficiently precise to allow an individual to understand its scope and foresee the consequences of his actions, thereby enabling him to regulate his conduct without breaking the law.^[5] The requirement at stake forms part of a narrow exception to a criminal ban, and a lack of clear guidelines is likely to have a chilling effect on practitioners charged with assessing and verifying compliance with the legal criteria. Notably, this is exactly what occurred in the present case. In fact, there have been multiple cases of assisted suicide requests that were decided inconsistently by Italian health administrations due to the lack of criteria to distinguish between what constitutes ordinary health treatment and what should be considered life-sustaining treatment.^[6] Furthermore, past case law from regional tribunals confirmed a continuing trend of uncertainty among healthcare professionals in applying this requirement.^[7]

In November 2023, an Italian regional Ethics Committee – whose opinion is decisive in the PAD access procedure – sought clarifications on the meaning of the life-sustaining treatment requirement by submitting an interpretative query to the Italian National Bioethics Committee (CNB).^[8] The request centered on the absence of any definition of this requirement in both the medical literature and legislative texts.^[9] Despite a potential overlap with the case brought before the Constitutional Court by the Florence tribunal, the CNB, amid internal protests,^[10] opted to adopt a rather restrictive definition—so much so that it excluded artificial nutrition and hydration from the list of life-sustaining treatments.^[11] Someone might argue that the mere existence of such an opinion confirms that the requirement at stake is fraught with practical uncertainties. Moreover, the Italian Constitutional Court, while insisting on maintaining the requirement, has interpreted it in an extensive manner that, in some respects, is diametrically opposed to that of the CNB.^[12] Additionally, there are several cases of health administrations that have revised their original opinions in light of the 2024 Italian Constitutional Court ruling.^[13]

… and the (missing) Proportionality Assessment

Regarding whether the ban is “necessary in a democratic society,” it is understood that the measure must pursue a legitimate aim and be proportionate to that aim. Although Art. 8(2) does not explicitly mention a “legitimate aim,” an aim will generally be considered legitimate if it falls within one of the interests set out in paragraph 2 of Art. 8.^[14] Therefore, as long as the State can demonstrate to the requisite standard that the challenged measure seeks to achieve an aim related to one of these interests, it will typically satisfy the legitimate aim requirement under Art. 8(2) of the ECHR. Disappointingly, the decision in question did not assess whether the measure was necessary and proportionate in achieving the stated objective. While there is significant consensus among various jurisdictions that one of the primary—if not sole—legal justifications for bans on assisted suicide is the need to protect vulnerable people from being pressured into ending their lives, the Italian Constitutional Court should have at least attempted a proportionality test as simply stating the objective might be not enough.^[15] As demonstrated by ECtHR case law, once it is shown that a measure interferes with a right protected by the ECHR—and if that right is qualified (as is the case with Art. 8)—the onus shifts to the State authorities to prove that the interference is justified.^[16]

Conclusion

Where does all of this leave us?

We have seen that the Italian Constitutional Court, backed into a corner by a legislative power that has deliberately remained passive and inactive on the issue, sought support in the case law of the ECtHR in an attempt to uphold the legal framework it had established. Two key elements emerge from this jurisprudence. On the one hand, it is true that member states have an obligation to preserve and protect human life. However, this does not imply a general prohibition on Physician-Assisted Dying (PAD). On the contrary, PAD can be legitimate, provided that it adheres to specific and well-defined conditions. Therefore, while it is certainly true that states have the primary authority to decide whether to legalize assisted suicide, in line with the broad margin of appreciation granted to them, respecting the principle of subsidiarity also means acknowledging that it is primarily up to the domestic authorities to issue comprehensive and clear guidelines on whether and under which circumstances an individual is allowed to end their life via PAD. Yet, it seems that the Constitutional Court has provided a clear response to only one of the issues raised—namely, the allegedly discriminatory nature of the requirement of dependence on life-support treatment—while leaving unanswered the question of its proportionality, despite its candid acknowledgment that this requirement is unique in a comparative context. The unfortunate timing of the opinion issued by the Bioethics Committee suggests that the requirement remains open to varying interpretations. While the Court has partially clarified some aspects, these ambiguities may lead to inconsistent application in practice. Moreover, since this concerns an exemption from criminal liability within an offense, it is crucial that professionals in the field have a clear understanding of which actions are deemed lawful and which are not. It is therefore time— as has been widely advocated in legal scholarship— for the Italian legislative power to finally address the issue, relieving the judiciary of the burden of compensating, sometimes in a not entirely consistent manner, for the legislature’s shortcomings. After all, the ECtHR itself has reaffirmed that: "There might be difficulties in finding the necessary political consensus on such a controversial question with a profound ethical and moral impact. However, these difficulties are inherent in any democratic process and cannot absolve the authorities from fulfilling their task therein”.^[17]

^[1] Pretty vs United Kingdom, App. no. 2346/02, ECtHR (29 April 2002), para. 61; see ex multis Marckx v. Belgium, App, no. 6833/74, ECtHR (13 June 1979) and Kroon and Others v. the Netherlands, App. no. 18535/91, ECtHR (27 October 1994).

^[2] Koch v. Germany, App. no. 497/09, ECtHR (19 July 2012), paras. 51-52.

^[3] See: Pretty (n. XV), paras. 63-67, where the Court ‘[was not prepared] to exclude’ that the fact that the applicant was precluded from exercising her choice to avoid what she consider[ed would] be an undignified and distressing end to her life constituted an interference with her right to respect for private life within the meaning of Art. 8(1) of the Convention. See also, ex multis: Haas v. Switzerland, App. no. 31322/07, ECtHR (20 January 2011); Koch v. Germany, App. no. 497/09, ECtHR (19 July 2012); Lambert and Others v. France, App. no. 46043/14, ECtHR (5 June 2015); Mortier v. Belgium, App. no. 78017/17, ECtHR (4 October 2022); Karsai v. Hungary, App. no. 32312/23, ECtHR (13 June 2024).

^[4] While Art. 8(2) does not make express reference to ‘legitimate aim’, an aim will typically be found to be ‘legitimate’ ‘provided it falls within one of the categories of interests set out in paragraph 2 of Art. 8. See S.A.S v France, App. no. 43835/11, ECtHR (1 July 2014), para. 60.

^[5] The Sunday Times vs United Kingdom, App. no. 6538/74, ECtHR (26 April 1979) para. 49. See also Gross vs Switzerland, App. no. 67810/10, ECtHR (14 May 2013) para. 65; albeit it must be underlined that the case was referred to the Grand Chamber, which declared it inadmissible on 30/09/2014, on the grounds that the applicant’s conduct constituted an abuse of the right of application within the meaning of Art. 35(3)(a) — the applicant had failed to disclose that she had obtained a medical prescription for a lethal dose of sodium pentobarbital and, on 10 November 2011, had ended her life by ingesting the prescribed substance. Therefore, the Grand Chamber considered that the applicant had withheld crucial information from the Court, thereby preventing it from ruling on the case in full knowledge of the facts.

^[6] Luciana Riva, ‘The Physician-Assisted Suicide Pathway in Italy: Ethical Assessment and Safeguard Approaches’ (2023) 10.1007/s11673-023-10302-2 Journal of bioethical inquiry 1, 5.

^[7] Antonella Massaro, ‘La dipendenza da trattamenti di sostegno vitale nelle procedure di suicidio medicalmente assistito: ridescrizione o interpretatio abrogans? Note a margine della sentenza di assoluzione di Marco Cappato e Mina Welby nel caso Trentini’ (29 September 2020) Giurisprudenza Penale < https://www.giurisprudenzapenale.com/2020/09/29/la-dipendenza-da-trattamenti-di-sostegno-vitale-nelle-procedure-di-suicidio-medicalmente-assistito-ridescrizione-o-interpretatio-abrogans/ > accessed 7 March 2025.

^[8] The National Bioethics Committee is an organ of the Italian Presidency of the Council of Ministers with advisory functions on bioethical issues for the government, parliament, and other institutions. It was first established by decree of the President of the Council of Ministers on March 28, 1990.

^[9] Comitato Nazionale di Bioetica, ‘Risposta Quesito del Comitato Etico Territoriale della Regione Umbria 3 Novembre 2023’ (20 June 2023) available at < https://bioetica.governo.it/media/titp0sf3/risposta-tsv-rev-2-luglio-2024-finale.pdf > accessed 20 February 2025.

^[10] Ibid. The opinion went public on the very days the Constitutional Court was meeting to deliberate. For that reason four members decided not to participate in drafting the opinion, while others prepared a dissenting one.

^[11] Ibid.

^[12] See supra.  

^[13] Associazione Luca Coscioni, ‘L’AUSL Toscana Nord Ovest dà parere favorevole per il suicidio assistito alla 54enne toscana affetta da sclerosi multipla’ (26 July 2024) available at < https://www.associazionelucacoscioni.it/notizie/comunicati/parere-favorevole-suicidio-assistito-ausl-toscana-nord-ovest > accessed 8 March 2025. Notably, in a situation similar to that mentioned, a local court offered an alternative interpretation of the requirement for dependence on life-sustaining treatment, even though it used the Constitutional Court ruling as guidance; see Tribunale di Trieste – Sezione Civile (25 March 2024) available at < https://associazionelucacoscioni.it/wp-content/uploads/2025/03/Decisione-1.pdf > accessed 20 February 2025

^[14] See ex multis: S.A.S. v. France, App. no. 43835/11, ECtHR (1 July 2014), para. 113.

^[15] Stevie Martin, Assisted Suicide and The European Convention on Human Rights (Routledge 2021), p. 89.

^[16] S.A.S. (n. xxviii) para. 114.

^[17] Gross vs Switzerland, App. no. 67810/10, ECtHR (14 May 2013) para. 66.