Mobilising for euthanasia in Italy: Courts and the political agenda

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On 15 February 2022, Italy’s Constitutional Court (“the CC” or “the Court”) rejected the possibility of conducting a referendum on euthanasia in Italy. For months, members of the Luca Coscioni Association (promoting freedom of care and scientific research) had been collecting signatures (1,200,000!) to make the referendum actually happen. Italian law provides for a preliminary constitutional check carried out by the CC on the question that will be put to Italian voters (quesito referendario).

The quesito at stake provided for a partial repeal of Article 579 of the Italian Criminal Code on ‘consensual homicide’, which would exclude from criminal liability a person who ‘actively’ helps another person to die when the latter has given his or her free consent. The CC declared the quesito inadmissible on the basis that the partial repeal of Article 579 would not preserve “the minimum threshold of constitutional protection of human life, in general, and, more specifically, of weak and vulnerable people.”

Restarting the decisionmaking

The Court’s decision was not welcomed by a broad movement that for 15 years has been fighting to make euthanasia a lawful practice in Italy. A crucial step in this mobilisation was the 2019 CC judgement in the ‘DJ Fabo’ case, where the constitutional judges held that under certain conditions, ‘a form of euthanasia called suicide assistance’ was not punishable. In particular, the ruling established that in Italy it is possible to help someone die without risking imprisonment if 1) that person has an irreversible disease; 2) the irreversible disease causes physical or even psychological suffering that is intolerable; 3) the person is fully able to decide freely and consciously; and 4) the person is being kept alive by life-sustaining measures.

The Court’s ruling in the DJ Fabo case ‘saved’ Marco Cappato, an activist and member of the Luca Coscioni Association, from criminal liability for assisting the Italian disc jockey Fabo in executing his last will. Furthermore, the Court’s 2019 decision was considered a de facto invitation to the Italian Parliament to legislate on the matter. On this basis, the Justice Committee of the Chamber of Deputies last summer agreed on a draft law on euthanasia, which clearly referred to the CC conditions established in the DJ Fabo case law. Despite initial agreement, the draft got stuck in the legislative process for months. The activists’ push for a referendum should thus be seen as a response to the slowness of the decisionmaking and the lack of political consensus.

Although the quesito referendario was ultimately rejected, the activists’ efforts succeeded in producing an important ‘indirect’ effect. Indeed, the pressure put on the Italian institutions by the Court’s denial ‘unlocked’ the legislative process, leading to a rapid approval of the law on euthanasia on 10 March 2022. The law received a large consensus within the Chamber of Deputies (253 favourable votes), but in order to acquire binding force it needs to be approved also by the Senate.

The rejection of the quesito referendario by the CC sends a clear message to social movements in Italy: the CC can produce significant indirect effects, even when cases are ultimately lost. For instance, as shown in this contribution, courts can be used to bring matters to legislative attention or facilitate political negotiations. Nonetheless, in order to produce significant social and political change, courts need to be supported by political institutions. In his book The Hollow Hope, Gerald Rosenberg theorizes about courts’ limited capacity to produce compelling societal reform. He identifies several other constraints on social change via court rulings. These include the limited nature of constitutional rights, courts’ traditional unwillingness to ‘take the heat’ generated by politically sensitive decisions and courts’ lack of implementing powers (necessary to execute their own decisions). By deferring to the Parliament the difficult task of regulating euthanasia, the Court has brought (again) the matter to legislative attention, but – this time – the Italian judges found a receptive Chamber of Deputies.

Different rights at stake, similar playbook

The CC has taken this approach to sensitive rights legislation before. In 2010, the Constitutional judges were called upon to intervene on the question of same-sex marriage in Italy. Faced with the refusal by many municipalities to accept the marriage banns of gay couples, the CC found that same-sex unions, despite being formed by individuals whose inviolable rights should be protected, did not constitute a ‘social group’ suitable for establishing a family based on marriage under Italian law. In this regard, the Court clarified in its judgement no. 138/2010 that it was for the Parliament, in the exercise of its full discretion, to identify the forms of guarantee and recognition for the aforementioned unions. And so it was.

After 28 years of mobilisation and legislative proposals submitted to the Parliament (and six years after the Court’s judgement on the matter), in 2016 the Italian legislator approved the current law on ‘civil unions’, extending the concept to include homosexual couples. As evinced by the parliamentary works, the ‘urgency’ for a law on the matter was also due precisely to the legal protection vacuum found by the CC in 2010. The reform on civil unions was celebrated as an important success by Italy’s LGBT community, even though this fails to grant same-sex partners stepchild adoption.

Slow train comin’

What can be learnt from the CC’s refusals to take the lead on euthanasia and same-sex unions? Although discouraging for many activists, the message of the Court reveals an inconvenient truth: that legislative changes require cultural shifts, and cultural shifts take time.

Of course, nobody would like to see delays in fundamental rights protection, but rights are not static and in democracies we do not always agree on what actually constitutes a new fundamental right. Time is therefore necessary to convince more and more people and political representatives that a specific request of protection is worthwhile. Societal change is a process, and mobilisation is what happens in the process.

When it comes to ‘legal’ mobilisation, the recent dismissal enacted by the CC should not lead us to the rash conclusion that litigation is useless, simply because the Court has clearly stated that ‘it is for the Parliament to intervene’. On the contrary, the rejection of the quesito referendario, as well as the older rulings on euthanasia and same-sex marriages, demonstrate once again how powerful courts can be in bringing sensitive issues back on the political agenda and how effective litigation can be when the time is ripe for political institutions to take the lead on crucial matters.


Mario Pagano is a PhD Researcher in the Department of Law. His thesis explores legal mobilisation pathways and techniques deployed by environmental NGOs to obtain access to justice before the EU Courts in actions for annulment. He has published in Diritto e processo : derecho y proceso – right & remedies and in the European journal of risk regulation.