RICERCA ITALIANA     

Research program

SECULARITY, VALUES AND CRIMINAL LAW

University Co-ordinator

Università degli Studi di BOLOGNA - SCIENZE GIURIDICHE "A.CICU" - ()

Research Unit Leader

Luigi Stortoni

Description

The discussion about the euthanasia's phenomenon and its juridical legitimisation is clearly permeated by a pre-juridical dimension which is not possibile to put aside. This is a certain and indisputable data: the debate about euthanasia is conditioned by ethical and religious principles whose presence lays in many cases to a plans' confusion and often even to a ousting's request tout court of the juridical plan, considered unuseful and hurtful. If, neverthless, some voices keep on opposing with strenght to whatever positive judgement expressed in relation to the hypothesis of legitimisation of euthanasial practises, more and more often, and in the name of the respect of its own human dignity, other voices rise in favor of the sweet death, of the recognition for the man of a right to die. This, contrarywise to what we should be induced to think because of the outcry and the notoriety of a few cases became representative, doesn't happen at all only in the Anglosaxon or Nothern Europe countries; if it is true, in fact, that the Italian debate is still behind compared to the one in areas geographically and culturally different, notwithstanding this, it cannot be denied the existance of a opinion, always more and more intense, which call for a more precise consideration about themes connected to sweet death. Stathistical researches done in the last years show, in fact, that even in Italy physicians and nurses often receive euthanasia's requests and so today a relevant number of person speak frankly about their death and ask to die with dignity. Representative manifestations of the sensibilisation that as reguards to these themes is growing even in Italy are, on one hand, the Autodetermination Paper written by the Bioethics Council, on other hand the Medical Deontology Code itself that, in the last version, underline the acknowledgement of a preferential position to the patient's will as well as the recent proliferation of law's proposal whose object is the regulamentation of the informed consent and the so called “directives in advance”. The need of a concrete position about the problem euthanasia exist yet, even in Italy. To this aim is necessary to obtain a precise definition of the contents of the problem, on one hand leaving once and for all a too common synthetic vision in order to embrace an analitic meaning of this subject that allows us, among the other things, to revise the equation euthanasia=omicide which permeates the subject with negative values, on the other hand overtaking certain distinctions based on apodittical argumentations still not fit for a real perception of the phenomenon. To distinguish the ethical-religious plan to the juridical one and to address to a laical, or the more laical possible, approach of the matter, is indinspensable to rebuild in the most possible precise way the meanings of the term in order to limit the debate only to some of them diversifing, in any case, the solutions, if they are, however, juridical or even placeble in the so called Rechtsfreier Raum so often wished by the non-jurists for this matter. For a right deepening of the thematic is, therefore, of fundamental importance that is an awareness about the considerable amount of sub-categories that the euthanasia concept contain, in oder to face the question of the sub-categories' discipline in a different and consistent way. Only to clarify and refer to the categories that in a more weighty way are at the center of the nowadays debate, it can be referred, at first, to the differentation between consensual and not consensual euthanasia; secondly, considering differenet objective profiles it can be distinguish between active and passive euthanasia, if the behaviour consist of an action or of an omission. Even inside the category of active euthanasia, moreover, is used another distinction between pure euthanasia (or palliative in the strict sense of the word) and undirect euthanasia, both consistent in analgesic drugs' administering that, neverthless, only in the hypothesis of undirect euthanasia, can lay to death. The ways of euthanasia's showings themselves, generally, have been modified side by side to the medical-scientific tecniques' progress which produced the death's trasformation from event to process, amplifying the human intervention's possibility in the different stages of the process itself and so putting a possibility of individual choice, where before everythig was domined by the need. The short examination of the problem connected to the euthanasia's theme brought to light the need of a serious and organic position of the problem by the lawgiver. The undeniable difficulty to find right solutions which have a general validity doesn't giustify a behaviour that tends to remove the problem, neither to an aprioristic weaver to any solution, even imperfect or perfectible. The matter's evolution towards a complexity which involves nowadays reality and many interests excludes reasonableness and equity of problem's non-juridical solution.
Euthanasia is still not a phenomenon that clings only to the individual sphere, because is not only an individual waiver to its own life matter, but a weaver to life defined in a relational situation which has more o less points in common with other persons and sometimes opposite interests. The absence of a juridical regulamentation produces unavoidably uncertainty, such as produce uncertainty the actual and unfittable regulamentation. The need of an expressed and specific discipline is not showed, moreover, only about active euthanasia (and about this particular type of active euthanasia constituted by undirect euthanasia), but also about passive euthanasia and right to let die. The actual tendency to a claim of a self-determination right which can be extended at all personal belongings, whose life is at the first position, is a condition that cannot be ignored or interfered with. But it should be guided and limited. The nowadays spur to a direction which reflects an personalism's unbalancing towards an man's individualistic vision must be stemmed and balanced by the respect of solidarity's duties on one hand, but also, on the other hand, by the respect of individual dignity. Therefore, should be indicated the right way in order to mediate between these two prospectives. With this aim, is clearly an obliged path to leave an absolutistic conceiving about the life's unavailability, side by side to the objection of a conceiving about state-individual relations characterized by a strong paternalism; on the othe hand, on the same way, is not admittable an unconditioned opening to life's availabity and to what is commonly known, using an expression taken from the anglosaxon debate, “right to be let alone”. So, our research tends to face all the questions that in any way are connected to a right approach of the euthanasia's theme, as previously briefly written, in order to propose a cognitive and proposal basis for a juridical discipline up to date which consider the new needs related to the actual phenomenon's manifestations, but also to the requests that comes out from our constitution and from the more general process of globalisation of the fundamental rights' criminal tutelage. For these aims, specific goal of the research will be unavoidably to deepen in a comparative way the most recent laws on the matter and the scientific debates in progress in order to deduce the solutions' models adopted. In fact, one of these models that seems, nowadays, to have a wide spread consent is the one adopted in the Netherlands and Belgium that, even mantaining the criminal unlawfullnes of homicide's conducts and even of homicide on demand, nevertheless it provides for procedures whose respect could be the basis for a non punishability assesment for the physician who practised euthanasia. This model has been recognised by someone as a new kind of justification, called “procedural justification”. Certainly will be of fundamentl importance the analysis of European and non European statutes about living wills, that will be probably essential, even if nowadays are object of adversion by the major part of the opinions in our country. Everything has been pictured will be useful for the proposition of a discipline's model about the phenomenon euthanasia, model which will try to consider the phenomenon's characteristics, but also the own differences inside the matter and, so, the need of a polymorfic solution.