Author: Ruggero Leotta, LL.M.

Ruggero Leotta is a graduate in International Human Rights Law from the University of Groningen and holds a master’s degree in law from the University of Catania. He currently works as a Research Assistant on the AI Witness project at the University of Groningen and serves as Executive Editor of the Groningen Journal of International Law. His areas of expertise include the right to life, the prohibition of torture, non-refoulement, and the intersection between technology and human rights.

Mail: r.leotta rug.nl

This is part I of a two-part blog series examining the persisting legal uncertainties surrounding assisted suicide in Italy in light of recent ECtHR jurisprudence. Part I explores the Italian Constitutional Court’s cautious yet evolving stance on assisted suicide, focusing on decision no. 135/2024 and how it appears to have been influenced by Karsai v. Hungary. Part II will demonstrate how the Court invoked Strasbourg case law without fully engaging with its underlying reasoning and will critically analyse the Constitutional Court’s ruling against the broader backdrop of ECtHR case law.

Introduction

On February 15, 2025, the Regional Council of Tuscany in Italy approved a legislative proposal regulating “medically assisted voluntary death” at the regional level, more commonly known as “assisted suicide”. With this law, Tuscany became the first Italian region to establish a local legal framework for assisted suicide while awaiting the enactment of national legislation—a framework that, despite numerous attempts, has never been approved. According to the regional law, “only those who meet the criteria outlined in Constitutional Court rulings 242/2019 and 135/2024 are eligible for the procedures related to medically assisted suicide”. In 2019, the Italian Constitutional Court had indeed opened a narrow exception by declaring that, under certain conditions, anyone who “facilitates the execution of a suicide plan, autonomously and freely formed, for a patient kept alive by life-sustaining treatments and affected by an irreversible pathology causing intolerable ‘physical or psychological’ suffering would fall under an exclusion of criminal liability”. Although this intervention was widely praised, it also raised several questions and criticisms, particularly regarding the requirement of dependence on life-sustaining treatments. More recently, in July 2024, the Constitutional Court, prompted by a local tribunal, revisited the issue. However, what was expected to clarify the matter now risks further muddying the waters.

Background of the case

Just over a year ago, a local tribunal in Italy requested a new intervention by the Constitutional Court in another assisted suicide case.^[1] The case concerned three members of an Italian NGO who voluntarily reported themselves to the authorities for having accompanied a patient suffering from multiple sclerosis to Switzerland, where he could end his life. The patient was indeed unable to access the procedure for assisted suicide governed by the landmark decision of the Italian Constitutional Court in the so-called ‘Cappato-Fabo’ case.^[2] This ruling provided access to assisted suicide under stringent and narrowly defined conditions.^[3] In this case, although the patient suffered from an irreversible pathology that caused both intolerable physical and psychological suffering—and despite having full capacity for self-determination—he did not meet the requirement of being dependent on life-support treatment and was therefore deemed ineligible for the procedure. Consequently, during the ensuing criminal legal proceedings against the NGO’s members, the presiding judge reckoned there were enough grounds to refer the matter to the Constitutional Court for further examination. Namely, the referral sought clarification on whether the dependency on life-support treatment - as a prerequisite for accessing assisted suicide - violates the principle of non-discrimination enshrined in the Italian Constitution, as well as a violation of Art. 8 ECHR.^[4]

The decision

Despite expectations, the Constitutional Court dismissed the case albeit attempting to define the requirement of dependency on life-sustaining treatment by combining qualitative indications with a temporal criterion.^[5] This interpretive effort was undertaken as part of a broader reaffirmation of the principles underpinning the Court’s 2019 ruling, particularly concerning the scope of state obligations under Art     . 2 and 8 of the ECHR. Indeed, the Court, reiterating the rationale underlying its 2019 intervention, emphasized the dual obligations of the state arising from Ar     t. 2 and 8 of the ECHR: to safeguard the right to life through legislative measures and to protect the individual’s right to informed consent in medical treatment. This includes the right to refuse or discontinue medical interventions, even when such interventions are essential to the individual’s survival, in recognition of the principle of personal autonomy. However, it also underscored the necessity of establishing robust safeguards to protect vulnerable individuals from external pressures, ensuring that decisions regarding the end of life are made freely and autonomously.

Importantly, the Court clarified that its 2019 decision had not recognized a general right to end one’s life in all instances of intolerable suffering caused by irreversible conditions. Instead, it deemed the denial of assisted suicide unreasonable for those who already possess the legal right to refuse life-sustaining treatment, as such denial would compel individuals to endure a slower and more painful death. Accordingly, the Court concluded that the rationale underlying the 2019 intervention cannot be extended to individuals who do not already have the option to allow death to occur through the refusal of treatment. According to the Court, these two situations differ in their underlying rationale, meaning that the very basis for the alleged disparity in treatment is absent. The Court firmly rejected the argument that this requirement could constitute a violation of the right to private life as enshrined in Art. 8 of the European Convention on Human Rights. According to the constitutional judges, this conclusion finds strong and undisputed support in the Karsai v. Hungary judgment.^[6] Indeed, the European Court of Human Rights itself ruled that the criminalization of assisted suicide does not infringe upon the right to private life of an individual suffering from an advanced stage of a degenerative nervous system disease.^[7] However, as is often said, things are more complicated than they might look, and the reliance on the Karsai case may not represent the most judicious choice.

Karsai’s (Complete) Legacy

Indeed, the Karsai case was rather about the rights of terminally ill patients      – who already could refuse life-sustaining or life-saving treatments and in consequence, die - who wished to accelerate the inescapable trajectory of their disease, which exposed them to unbearable suffering.^[8] In fact, refusal or withdrawal of life-sustaining intervention (RWI), which is allowed by Hungary, was already accompanied by safeguards that were equally relevant to patients’ decisions on physician-assisted dying (PAD). As it can be readily observed, the case at hand bears direct analogy to the situation that prompted the intervention of the Italian Constitutional Court in 2019.^[9] In Hungary, RWI is legal, and the applicant sought an exception to the absolute prohibition of PAD (Physician-Assisted Death) by extending it to individuals who already possessed the right to refuse medical treatment. It is therefore somewhat perplexing that the Italian Constitutional Court chose to justify its stance by referencing cases from jurisdictions where a blanket ban under criminal law exists. While there is no doubt that the ECtHR excluded the possibility that the criminalization of assisted suicide through a blanket ban violates Art. 8, confining the citation of the case to this particular aspect appears reductive, if not outright misleading. Indeed, in Karsai, the Court's reasoning extended beyond this point. The ECtHR sustained that every MS has a positive obligation arising from Art. 2 ECHR to protect the lives of vulnerable persons, especially those who can be pressured to die because they are at risk of being considered a burden to society.^[10] However, while it held that a blanket ban on PAD did not infringe Art. 8, it also confirmed its previous findings reached in Mortier vs Belgium where it was recognized that Art. 2 does not prevent authorities from allowing and also providing assisted dying, as long as the State establishes a procedure capable of ensuring that a decision to end one’s life did indeed correspond to the free will of the individual concerned.^[11] Therefore, it is certainly true that a blanket ban does not violate Art. 8, but it is equally true that permitting assisted suicide does not constitute a violation of the Convention;     ^[12] indeed, as extensively clarified by the ECtHR, Member States are recognized as having a wide margin of appreciation in this matter.^[13] This prompts further inquiry into how these findings relate to the Italian case, and whether they might substantiate the stance taken by the Italian Constitutional Court.

Conclusion

The present case could - and arguably should - be regarded as materially different from the Karsai case. Indeed, as we have seen, the subject of dispute in Karsai is whether an obligation under Art. 8 of the Convention to legalize physician-assisted dying (PAD) exists in the first place.^[14] In contrast, the 2019 Italian judgment set out a partial criminal ban that carves out an exclusion of criminal liability for assisted suicide when specific conditions are satisfied. One of these conditions – dependency on life-sustaining treatment -  received special attention from the Constitutional Court in 2024 because it was suspected of being discriminatory, lacking proper regulatory content, and thus leading to interpretative and application issues. 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. Part II of this series will therefore critically analyse the Constitutional Court’s ruling against the broader backdrop of ECtHR jurisprudence. It will specifically assess the obligations arising under Article 8 of the Convention—from the distinctive vantage point of a State that, unlike Hungary in Karsai, already permits assisted suicide, albeit subject to stringent, narrowly defined conditions.

[1] Tribunale di Firenze – Sezione Giudice per le Indagini Preliminari (17 January 2024), available at < https://i2.res.24o.it/(...)e%20di%20Firenze.pdf > accessed 9 February 2025.

[2] Ruggero Leotta, ‘Evolving Ethics: A Legal Odyssey in Italy's Journey with Assisted Suicide’ (26 February 2024)

[3] As mentioned above, the Court established that to qualify for access to voluntary assisted death, the individual must meet the following requirements: (1) possess the capacity for self-determination; (2) suffer from an irreversible pathology causing physical or psychological suffering deemed intolerable by the individual; and (3) rely on life-support treatment.

[4] The referring tribunal argued that the contested requirement creates an unjustifiable disparity in treatment between individuals in materially equivalent circumstances. First, it challenged the absence of a clear definition of ‘life-support treatment’ within Italian law, with the additional spillover effect that the requirement grants excessive and unwarranted discretionary power to local ethics committees—the entities designated by Costitutional Court Decision 292/2019 to verify compliance with the conditions for accessing the assisted suicide procedure. Lastly, the tribunal considered the requirement disproportionate in relation to its stated purpose, namely balancing the principles of self-determination and human dignity with the protection of structurally vulnerable individuals from potentially self-destructive actions.

[5] Corte Costituzionale 01 July 2024 no 135, available at < https://www.cortecostituzionale.it/actionSchedaPronuncia.do?param_ecli=ECLI:IT:COST:2024:135  > accessed 18 March 2025. Procedures—even those performed by appropriately trained non-medical personnel—fall within this concept when they are ‘[…] proven to be essential for sustaining the patient’s vital functions, such that their omission or interruption would predictably lead to death within a short period’.

[6] Karsai v. Hungary, App. no. 32312/23, ECtHR (13 June 2024).

[7] Ibid. para 7.4; where the Court recognized a wide margin of appreciation afforded to each State in balancing this right against the protection of human life.

[8] The case concerned Mr. Dániel Karsai who was diagnosed with amyotrophic lateral sclerosis (ALS), an incurable progressive neurodegenerative disease. In its advanced form, most muscles are paralyzed while cognitive and sensory abilities remain intact. In his view, the right to privacy (Art. 8) of the European Convention on Human Rights included a right to a self-determined death, which was violated due to Hungary’s criminalization of assisted suicide. Mr. Karsai maintained that he sought an exception to this criminal ban in the form of physician-assisted dying (PAD), which covers both euthanasia and assisted suicide.

[9] Corte Costituzionale 22 November 2019 no 242, available at < https://www.cortecostituzionale.it/(...)anno=2019&numero=242> accessed 18 March 2025.

[10] Moreover, the Court underlined the challenges of ensuring that the patient’s decision to use PAD is free from the external pressure and is not commanded by concerns that could be addressed through other means.

[11] Mortier v. Belgium, App. no. 78017/17, ECtHR (4 October 2022); based on this conclusion, the Court noted that in a system facilitating access to assisted suicide, the right to life obliged states to establish a procedure capable of ensuring that a decision to end one’s life actually corresponded to the free will of the individual concerned. In order to be compatible with Art. 2, such decriminalization must be accompanied by appropriate and sufficient safeguards to prevent abuse and thereby secure respect for the right to life. See also: Anna M.Puigderrajols Triadó and Inshira Faliq, ‘Life & Death, an Unstable Scale: The European Court of Human Rights Approach to Euthanasia in Mortier v. Belgium’ (4 December 2023) EJIL Talk! < https://www.ejiltalk.org/life-death-an-unstable-scale-the-european-court-of-human-rights-approach-to-euthanasia-in-mortier-v-belgium/ > accessed 18 March 2025.

[12] This apparent inconsistency can be explained by resorting to the margin of appreciation. As the Court has already pointed out, states are generally granted a certain degree of discretion in balancing the different interests at stake. This margin varies in accordance with the nature of the issues and the importance of the interests at stake (see Haas, cited above, § 53, and Pretty, cited above, § 70). A number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State when deciding any case under Art. 8 of the Convention. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will normally be restricted. Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (see S.H. and Others v. Austria [GC], no. 57813/00, § 94, ECHR 2011).

[13] Karsai v. Hungary, App. no. 32312/23, ECtHR (13 June 2024), paras. 144, 152.

[14] Indeed, contrary to Italy, Hungary’s legislation does not allow for any form of assisted suicide.