Das Recht auf den Tod als Grenze zum Strafrecht. Die Grundrechte der Kranken und dier Regelung der Sterbehilfe

The study clarifies that the condition of the sick in irreversible situations and cruel suffering because of an incurable disease, enabled by the same medicine that allows an extraordinary, but also artificial or unnatural life extension, is quite different from the condition of any other person who is preserved by the laws protecting life. In the refusal of medical treatment, internationally recognized as full right even when its exercise leads to death after a few minutes, is already included the right to die. In Englaro’s case (as well as in the Cruzan, Schiavo, Bland and Lambert cases) that right has even been recognized through a third person, in order to achieve an intentional killing and not a “consensual” one. The construction of unhappy rights, as fundamental rights of the sick, can not be left only to the judge-made law, although thanks to it, rights, that already limit the criminal provisions, have emerged (assisted suicide, consent-killing, homicide). The comparison with German, Swiss, Dutch, Belgian legal systems, offers a variety of experiences oriented to compassion and not to indifference towards the autonomy and the suffering of patients who are not treatable with palliative care, or wishing it. It also helps to understand the relativity of the distinction between act and omission as well as the distinction between the conduct of the perpetrator and of the accomplices in such justified situations of help to die and not only in dying.