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Deputy by right – Barbara Acquaviti

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Deputy by right – Barbara Acquaviti

Deciding not to decide: basking in the impasse when it comes to civil rights seems to have become a habit for Italian politics. But the inertia of the legislator often has dramatic implications for those who wait. Fabio Ridolfi, forty-six from Fermignano, who has been immobilized for almost half of his life due to a tetraparesis, explained it in a few measured words. Despite having the right to assisted suicide, he was forced, due to bureaucratic delays and decisions not taken by those who should have, to take another path to put an end, on June 13, to his suffering. “It is enough to treat us as second-class citizens, it is absurd that it takes more than a month to identify the deadly drug. Thanks to your indifference, I am forced to choose deep sedation “.

This is also told by the story of Mario, real name Federico Carboni, who on June 17 became the first person in Italy to resort to assisted suicide: due to a regulatory hole, however, he would have had to pay for machinery and medicines himself. And only a fundraiser promoted by the Luca Coscioni association allowed him not to be forced to wait any longer.

When it comes to rights, the rule of gaps that end up being filled sees the parliamentary function increasingly succumb, and with it the parties, sometimes bypassed by the ordinary judiciary, sometimes by other constitutional bodies, which express themselves on cases raised by citizens tired of waiting. On the other hand, if Mario, and the many others who are in the same condition as him, can ask for assisted suicide, it is certainly not because the chambers have bothered to vote on a law on the end of life. It took the 2019 constitutional court ruling, which came after warnings to parliament that fell on deaf ears. And now the paradox is that there are those who, like the Coscioni association, believe that it would be better for parliament to stop intervening because “a law worse than the sentence” must be avoided.

It was not the only case in which the constitutional court in recent years has made up for the role of the legislator in terms of rights, as evidenced by the recent ruling on the surname of children, which starts from the defense of the constitutional principle of parental equality. There is no shortage of bills to regulate this matter, they were presented both to the chamber and to the senate where the process also began in February in the justice committee to run aground immediately afterwards, mainly due to the resistance of the League, represented by Simone Pillon, animator of the Family day and author – at the time of the first government led by Giuseppe Conte – of a controversial bill on shared custody and two-parenting.

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Moreover, the sentence of 27 April 2022 was not the first in which the constitutional court addressed the issue of the double surname. Already in 2016 it had intervened to declare illegitimate the rule that did not allow spouses to pass on the maternal surname to their children. Only a first step, which was not enough to clarify, for example, the attribution mechanism for the children of unmarried couples, or whether only the maternal surname could be passed on. All points on which parliament should have intervened, but then six years passed in vain and the court had to intervene again, giving rise to a revolution in family law. Thanks to this new pronunciation, therefore, the rule will be that the child will take the surname of both parents in the order they have agreed upon, unless they decide together to assign only one. In the absence of agreement, the file will pass into the hands of a judge. But beyond the practical effects of the sentence, which is already in force, the constitutional court stressed the need for “urgent” legislative action to prevent a “multiplier mechanism” from being created over the generations, as it suggested that the choice of surname made for the first child is also binding on any brothers and sisters. A warning rather than an invitation.

As Tania Groppi, constitutionalist at the University of Siena explains, the court “usually resorts to interlocutory solutions, which do not have immediate consequences on the legal system, accompanied by a warning to the legislator. Then, if inertia persists, it moves on to more incisive solutions and in fact in recent years it has taken decisions on important matters, on which it had long warned against intervening “. Moreover, in his annual report, the president of the constitutional court Giuliano Amato spoke of “constantly growing warnings”: in fact, it went from 10 in 2018, to 20 in 2019, to 25 in 2020 up to 29 in 2021. In short, that of the double surname is one of those cases in which the constitutional court has in fact created a provisional rule to fill a gap. But judges cannot go beyond the recognition of a principle, the need for a law is not overcome. This is why in some cases the court has begun to give parliament a period of time to remedy before being forced to rule.

An emblematic case is certainly that of the end of life. In March 2022 the chamber approved a text that is the result of a long mediation process, which however continues to be opposed by the center-right, and which is currently blocked in the Senate committee. But this half result came after a path studded with parliamentary failures.

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Euthanasia in Italy is still illegal but if we can speak of assisted suicide it is thanks to a court, that of Milan, and to the constitutional court. In fact, on 27 February 2017, Marco Cappato, exponent of the Luca Coscioni association, accompanied Fabiano Antoniani, known to all as DJ Fabo, to a clinic in Switzerland to put an end to that life that he himself called “a cage” since he had been blind and quadriplegic due to a car accident. Back in Italy, Cappato declared himself, also with the aim of raising the case in public opinion. A trial ensued in which he was accused of assisting suicide, but in February 2018 the Milan Assize Court decided to call on the Constitutional Court. Technically, a question was raised of the constitutionality of a provision of the penal code, article 580, in the part in which it did not exclude the punishment of those who had helped a person suffering from a serious and irreversible pathology, totally aware and informed about what he was doing, to commit suicide.

On that occasion, the court decided to choose an innovative path: it postponed its sentence to September 2019, giving the parliament one year to legislate. However, that provision never arrived and in the end the court issued the ruling on the basis of which, in December 2019, Marco Cappato was acquitted with full formula. The legitimacy of resorting to assisted suicide has been confirmed, but all those issues that are addressed in the bill lying in the Senate remain standing, from the criteria for accessing the practice to conscientious objection by doctors. The chances of it being approved by the end of the legislature, however, are decidedly reduced and the road to the referendum was interrupted by the constitutional court itself, which declared the question inadmissible. The risk is therefore that the provision on the end of life ends up in the long list of “I wish but I cannot” of this parliament, together with the rules against homotransphobia, the so-called Zan bill, buried in the Senate amid applause and the coarse exultation of the center-right . Or the new rules for obtaining Italian citizenship – the ius scholae – which, after a troubled process in committee, on Wednesday 29 June should arrive for examination in the chamber.

The practice of granting a year to parliament was also implemented for life imprisonment. On April 15, 2021, the court explained that it considered the refusal of conditional release illegitimate for life sentences convicted of mafia who had chosen not to collaborate with justice and had asked to change the discipline, allowing time until May of this year. In this case there was a further innovation, as the court decided another six-month postponement, until November 8, so that the Senate can complete the process of the provision that has already received the green light of the room.

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The choice aroused criticism, to which Giuliano Amato replied in an interview with Corriere della Sera: “We are not the teacher of parliament. We do not give orders, we send invitations and we could not do otherwise. If in a year the parliament does not show itself capable of addressing an issue, as happened with assisted suicide or the double surname, I can make my decision without betraying loyal cooperation. But asserting a deadline and not giving weight to the work in progress, especially on complex issues, would weaken my own credibility with respect to loyal collaboration “.

A year in parliament was not even enough to resolve the issue of imprisonment for journalists guilty of defamation in the press. And so, once again, it was the constitutional court that intervened by establishing that the automatism is unconstitutional and that such a measure can be justified only in cases of “extraordinary gravity”.

Sometimes, however, constitutional aid is not enough. There are matters in which even the court chooses not to decide, opting to continue to send warnings to the chambers. Among these, there is the issue of homogenitoriality. In fact, in 2020 he declared inadmissible, i.e. not within his competence, a question of constitutionality that started from the request of two women to be both registered as mothers of a child born from heterologous fertilization. At the same time, however, he explained that it was “the task of the legislator to fill the regulatory vacuum”. A similar pattern was also repeated for another very delicate theme: gestation for others. In this case too, in fact, the court, called upon to rule on the marital status of children born with a practice that is prohibited by law in Italy, opted for inadmissibility but asked the parliament to establish rules for the protection of minors and to give legal recognition to the bond with the couple who takes care of it. Both warnings have remained voices in the desert in this legislature, which has never even addressed either issue.

This article appeared in number 33 of the Essential, on page 10.

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