It would be desirable that on certain issues such as the availability of the good of life, the state of justice, the use of drugs, the political forces (and individual representatives) already in the electoral campaign clearly express their intention and entrust it to the judgment of the voters
Historically, referendums represent a popular and political response to a technical question on issues that affect our common life. The recent “rejection” of the referendum proposals on the abolition of the crime of murder of the consenting party, of some norms on drugs and of the norm that is a burden to the state – and not directly to the judge – for compensation appears truly emblematic. Let us limit ourselves to the request for the murder of the consenting party to be eliminated from our penal code.
The theme of immediate prominence was (is) the judgment on pitiful killings, terribly painful and suffering-filled events. But from a basic perspective it was to evaluate whether today the good of life can be considered unavailable by its owner, as in the vision of the Legislator of 1930 (year of the enactment of the penal code in force), or if the personalist principle which (albeit variously understood ) informs the Constitution and numerous supranational sources has led to a weakening of the principle of unavailability of life, at least in some particular situations expressing individual self-determination.
The murder of the consenting person punishes with a reduced sentence (imprisonment from 6 to 15 years) compared to the voluntary murder «whoever causes the death of a man, with his consent». This consent must be the expression of a personal, mature, free and conscious choice, otherwise the provisions on common murder apply.
For the Constitutional Court it was obvious to remember that the application of art. 579 of the Criminal Code prescinds – as it is easy to note even for the non-jurist – from the motive of the perpetrator of the crime and from the conditions of the victim, provided that he is capable of expressing valid consent.
So, quite simply, the field of application of this provision is wider than the pitiful killings or euthanasia practices in the medical-health field, even if these have recently become the area of greatest practical relevance. This explains why (as the criminal law doctrine had warned) with the simple abolition of the murder of the consenting person, without other corrections of the law, one could have asked to die – provided they were of age, capable of understanding and willing, and not coerced – even for money , play, sport, challenge, or by conscious acceptance of the mortal risk of a very dangerous activity.
It seems impossible to us that the proponents of the referendum were not aware of this authentic implosion of the system: therefore the aim was above all to overcome the legislative block in progress, to force Parliament to intervene, perhaps with the prompting of the Court.
According to some authoritative observers, the Constitutional Court could have done more, indicating for example a solution compatible with the retention of the referendum: an opening similar to that manifested on the occasion of the declaration of constitutional illegitimacy of the aid for suicide, when it had excluded punishment of those who had facilitated the intention of dying of a person kept alive by life-sustaining treatments and suffering from an irreversible pathology.
However, all this would have meant the need for a coordinated and immediate intervention by Parliament, a reorganization of the system, on which perhaps the Court did not count. It seems to us that the Court could not take on more than a substitute task for Parliament, which must take on the responsibility of epochal choices on its own.
However, Parliament is not an entity other than the people it represents and on certain essential issues, such as the availability of the good of life, it is divided. Just as there are also different sensitivities among citizens.
And then it would be desirable that on certain issues such as the availability of the good of life, the state of justice, the use of drugs, the political forces (and individual representatives) already in the electoral campaign clearly express their understanding and entrust it to the judgment of the voters. It will then be the democratic principle of the majority that defines the solution, as long as it is finally chosen, because not choosing is a defeat that one cannot get used to.