Ruggero Leotta, LLM Student Human Rights Law, University of Groningen, r.leotta student.rug.nl

More than one year after the first case of assisted suicide in Italy, [1] another person had access to voluntary death assistance. [2] A 55-year-old woman suffering from secondarily progressive multiple sclerosis, died last 28 November in her home in Trieste (Italy) following the self-administration of a lethal drug. [3] After waiting more than a year since her request, she was the first Italian to have completed the procedure shaped by the Italian Constitutional Court in the 'Cappato’ case (also known as ‘Fabo’ case) with direct assistance from the Italian  National Health Service (SSN for its Italian abbreviation). [4]

In most jurisdictions, aiding in end-of-life matters can result in criminal prosecution.[5] Healthcare professionals, in line with this prohibition, must carefully decide whether to intervene or refrain from action to prevent a patient's death. Importantly, this does not establish an absolute obligation to sustain life at all costs, as prolonging life may conflict with professional standards, personal dignity, or a patient's explicit wishes.[6] Before 2021, assisted dying was only legal in few European countries.[7] However, there has been a notable increase in the legalization of assisted dying across Europe in recent years.[8] This surge is unprecedented and pushes us once again toward the same the inescapable question: is there room for a right to die?

International Framework

Human rights law does not impose a straightforward obligation for States to either permit or prohibit assisted suicide.[9] Indeed, no treaty, and certainly no customary practice, provides explicit regulations addressing this delicate matter. On the contrary, not only is there no mention of a “right to die” within treaties, but also the right to life, as recognized by Article 6 of the International Covenant on Civil and Political Rights (ICCPR) and other regional human rights treaties cannot be interpreted as including a diametrically opposed claim, namely the so-called “right to die”.[10] However, the UN Human Rights Committee held that assisted suicide, as such, does not violate Article 6.[11] Notably, the Committee has stressed that States allowing life-termination practices should establish effective legal and institutional safeguards.[12] These measures are intended to guarantee that the patient's desire and consent are not influenced by external pressure or abuse. Thus, the sole responsibility of the States is to ensure that the patient's consent is freely and unequivocally given.[13]

Within the European context, the absence of a specific legal instrument addressing the matter has compelled the European Court of Human Rights (ECtHR)  in its case-law to rely solely on the interpretation of the pertinent provisions of the European Convention on Human Rights (ECHR)—specifically, Articles 2 and 8, safeguarding the rights to life, and the respect for private life and family life.[14] Unsurprisingly, the Court held in several cases that the right to life does not encompass a right to die.[15] However, it indirectly acknowledged that the choice to avoid what one perceives as an undignified end to life, realized through assisted suicide, can fall under the right to respect for private life.[16] The Court also stressed the need to establish clear guidelines on the permissibility of physician-assisted suicide without delving into the substance.[17]

Italy’s National framework

Due to the lack of a national law regulating aid to voluntary death or access to assisted suicide, in Italy the end-of-life choice is regulated by a landmark ruling of the Constitutional Court on the abovementioned Cappato case, which made access to the procedure legal, but only under precise and strict conditions.[18] The Court ruled that in order to have access to voluntary death assistance, one must meet certain requirements: 1) being capable of self-determination; 2) suffering from an irreversible pathology, which is the source of physical or psychological suffering deemed intolerable by the person; and 3) being dependent on life-support treatment.[19] These requirements, along with the procedures for carrying them out, must be verified by the National Health Service in accordance with the procedures stipulated by the Law on Rules on Informed Consent and Advance Treatment Provisions (DAT for its Italian abbreviation) after obtaining the opinion of the territorially competent ethics committee.[20]

Notwithstanding the availability of assistance of this nature, the National Health Service fails to provide concrete temporal assurances to carry out verifications and respond to those who are entitled access this procedure. [21] Thus, they find themselves subjected to protracted waits for the ethics committees.[22] This verification process can extend over several months, thereby contributing to a scenario wherein individuals with an avowed intention to terminate their lives remain ensnared in a protracted state of limbo.[23]

The pivotal decision in the Cappato case established a crucial legal precedent, rendering it non-criminal to aid someone in their decision to end their own life, provided the criteria specified by the Constitutional Court were satisfied. This ruling had such a profound impact that it spurred the Italian National Federation of Medical Associations to revise Article 17 of the Code of Medical Ethics which originally explicitly forbade any means of aiding a patient in ending their own life.[24] The revised Code contends that doctors might not face punishment if they assisted patient in ending their lives, particularly in situations such as the ones outlined by the Constitutional Court.[25]

The (difficult) road ahead

It is pertinent to note that on January 17, the Court of Florence requested a new intervention of the Constitutional Court concerning another assisted suicide case.[26] The Court asked whether dependence on life-support treatment as a requisite for access to voluntary death assistance is contrary to the principle of non-discrimination enshrined in the Italian Constitution and Article 14 ECHR. According to the order of referral, the requirement-criterion at issue creates an unreasonable difference in treatment between situations that are essentially identical.[27] The Court went further arguing that once access to voluntary death assistance has been admitted for the irreversibly ill and suffering, the enjoyment of that freedom 'must be ensured without any discrimination' on the basis not only of the 'usual' criteria (race, sex, opinion, etc.), but also of 'any other personal condition', which evidently includes the condition of whether or not one is subject to life-support treatment.

It is, however, not the role of the courts to legislate and fill the void left by the State which has so far failed to provide itself with the appropriate regulatory framework, allowing territorial inequalities and bureaucratic uncertainties to affect the lives of those who would be entitled to end their lives in dignity. The journey ahead for Italy in navigating the complexities of assisted suicide regulation is undoubtedly challenging. Yet, as we tread this path, guided by legal precedent and ethical considerations, the clarion call from the ECtHR resonates: the urgency to establish clear guidelines on physician-assisted suicide is paramount. It is a call to action that demands careful reflection and a commitment to uphold the dignity of every individual's end-of-life choice.

[1] Elisabetta Povoledo, ‘Man Paralyzed 12 Years Ago Becomes Italy’s First Assisted Suicide’ The New York Times (Rome, 16 June 2022) < https://www.nytimes.com/2022/06/16/world/europe/italy-assisted-suicide.html> accessed 18 December 2023.

[2] Kevin Carboni, ‘Per la prima volta il Servizio sanitario nazionale ha sostenuto le spese di un suicidio assistito’ Wired Italia (Milan, 12 December 2023) < https://www.wired.it/article/suicidio-assistito-prima-volta-italia-servizio-sanitario-nazionale-friuli/> accessed 18 December 2023.

[3] ibid.

[4] Corte Costituzionale 22 November 2019 no 242, available at < https://www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=2019&numero=242> accessed 18 December 2023.

[5] Aart Hendriks, ‘Death and Dying’ in Brigit Toebes, Mette Hartlev, Aart Hendriks, Katharina O Cathoir, Janne Rothmar Herrmann and Henriette Sinding Aasen (eds), Health and Human Rights (2^nd edition, Intersentia 2022), 316.

[6] ibid.

[7] For a comparative approach see Adam McCan, ‘The Emergence of Assisted Dying Legislation in Europe in Light of Supra-national Governance Failures’ (2022) European Journal of Comparative Law and Governance 9, 1–6,

[8] ibid.

[9] Violeta Besirevic, ‘The Discourses of Autonomy in the International Human Rights Law: Has the Age of a Right to Die Arrived?’ (2008) no. 62/63 Cuadernos Constitucionales de la Cátedra Fadrique Furió Cerio 19, 27.

[10] International Covenant of Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171; Jean-Paul Van De Walle, Sophia Kuby, ‘The Legalization of Euthanasia and Assisted Suicide: An inevitable slippery slope’ (2021) ADF International White Paper, 20.

[11] UN Human Rights Committe, ‘General Comment No. 36 – Art. 6: right to life’ (3 September 2019) UN Doc CCPR/C/GC/35.

[12] ibid, par. 9.

[13] ibid.

[14]European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 1 January 1990) European Treaty Series 5; Miriam Cohen, Jasper Hortensius, ‘A Human Rights Approach to end of life? Recent developments at the European Court of Human Rights’ (2018) no. 17/18 Revista Do Istituto Brasileiro de Direitos Humanos 193, 198.

[15] Arend Cornelis Hendriks, ‘End-of-life decisions. Recent jurisprudence of the European Court of Human Rights’ (2018) 19 ERA Forum 561, 563. See inter alia: Pretty v. the UK, no. 2346/02, 29 April 2002, ECLI:CE:ECHR:2002:0429JUD000234602; Koch v. Germany, no. 497/09, 19 July 2012, ECLI:CE:ECHR:2012:0719JUD000049709;Lambert et all v. France (GC), no. 46043/14, 5 June 2015, ECLI:CE:ECHR:2015:0605JUD004604314; Gross v. Switzerland, no. 67810/10, 14 May 2013, ECLI:CE:ECHR:2013:0514JUD006781010 and Gross t. Switzerland (GC), no. 67810/10, 30 September 2014, ECLI:CE:ECHR:2014:0930JUD006781010; Pretty v. the UK, no. 2346/02, 29 April 2002, ECLI:CE:ECHR:2002:0429JUD00023460..

[16] ibid, 564.

[17] Gross v. Switzerland, App. no. 67810/10, ECtHR (14 May 2013).

[18] Corte Costituzionale 22 November 2019 no 242, available at < https://www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=2019&numero=242> accessed 18 December 2023; Ricci, Gibelli, Sirignano, ‘From ruling No. 242/2019 of the Constitutional Court to the Italian law on medically assisted death: a complex transition’ (2022) 26 European Review for Medical and Pharmacological Sciences 4546, 4547.

[19] ibid.

[20] Legge 22 dicembre 2017, n. 219, Norme in materia di consenso informato e di disposizioni anticipate di trattamento (Law No 219 of 22 December 2017, Rules on informed consent and advance treatment arrangements); see also: Ricci, Gibelli, Sirignano, ‘From ruling No. 242/2019 of the Constitutional Court to the Italian law on medically assisted death: a complex transition’ (2022) 26 European Review for Medical and Pharmacological Sciences 4546, 4547.

[21] 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.

[22] Ibid.

[23] Omar Vanin, ‘Assisted suicide from the standpoint of EU private international law’ (2022) 18:2 Journal of Private International Law 186, 187.

[24]Federazione nazionale degli ordini dei medici chirurghi e degli odontoiatri - Codice di Deontologia Medica, art. 17 (Italian National Federation of Medical Associations - Code of Medical Ethics) available at < https://portale.fnomceo.it/codice-deontologico/ > accessed 14 February 2024; see also: Ricci, Gibelli, Sirignano, ‘From ruling No. 242/2019 of the Constitutional Court to the Italian law on medically assisted death: a complex transition’ (2022) 26 European Review for Medical and Pharmacological Sciences 4546, 4547.

[25] ibid.

[26] Lorena Puccetti, ‘Aiuto al suicidio: sollevata nuova questione di legittimità costituzionale dell’art. 580 c.p.' CNF News (Milan, 29 January 2024) < https://www.cfnews.it/diritto/aiuto-al-suicidio-sollevata-nuova-questione-di-legittimit%C3%A0-costituzionale-dell-art-580-cp/ > accessed 14 February 2024.

[27] Tribunale di Firenze – Sezione Giudice per le Indagini Preliminari 17 January 2024, available at < https://i2.res.24o.it/pdf2010/S24/Documenti/2024/02/02/AllegatiPDF/Tribunale%20di%20Firenze.pdf > accessed 9 February 2024.