I FATTI SCIENTIFICI NELLA GIURISPRUDENZA COSTITUZIONALE. IL CASO DEL DIRITTO ALLA SALUTE

This research concerns the relationship between law and science, from the perspective of the Italian constitutional Court. The analysis focuses on the link between statutory documents and science in specific fields, considering that the technical scientific datum sometimes represents a concrete limit for the statutory discretional activity: in this cases it is necessary a “strict scrutiny” in the constitutional control on the evaluation of these requirements by the legislator, in particular referring to the protection of fundamental rights, especially to the right to health (which is highly influenced by scientific progress). The thesis in structured on “concentric circles”: after a general analysis of the role of “legislative facts” in the constitutional Court’s adjudication, it will be firstly considered the more specific topic of scientific data, and then the role of science within constitutional judgments on fundamental rights. This way, each chapter’s conclusion is the starting point for next chapter. In particular, the employment of scientific data within constitutional court will be in depth examined, in order to verify if (and under which conditions) a constitutional control on statutory laws’ scientific premises is possible. The study of the most important Court’s decisions, in which science has been involved (i.e. transsexual issues, death definitions, penal detention of AIDS affected people, compulsory vaccinations, etc.) points out how scientific data can be the centre of the juridical reasoning, both in case of dismissal and grant of the constitutional complaint. In conclusion it emerges the importance of technical scientific data relies upon three elements: their connection with the ratio of the rule; the effective possibility for the judge to modify the statutory basis (for example, operating throughout interpretative decisions which allow the judge to make a concrete balance); the scientific points raised by the a quo judge. These conclusions are supported by the analysis of the constitutional case law on right to health, which shows how the Court has considered and deepened the scientific requirements of the challenged statute: a) in order to determine the essential content of right to health and to verify its correct balance with other rights; b) to demonstrate the law’s excessive rigidity towards health protection; c) to define the content of the right to health and acknowledge new constitutional rights connected to it. In several occasions, the Court has underlined the need for the safeguard of fundamental rights through a deep constitutional control which, while checking the reasonableness of the legislative choice, takes into account scientific data, useful for the decision. The last part of the thesis deals with the ways of entrance of scientific information in the constitutional judgment (memories of the parties, case file of the a quo process, Court’s investigation powers). During the decision, the Court is not always able to verify the parliamentary evaluation of the factual requirements while approving a normative text. A hypothetical solution to this problem may be found using the constitutional investigation as an instrument of dialogue between the Court and the legislator who, on the judicial request, could justify his normative choice. Moreover, when technical-scientific data are challenged, the cross-examination between the parties can become a fundamental passage of the Court’s decision. Lastly, attention will be focused on the possibility of outlining a methodological bond for the legislator: statutory interventions within scientific-sensitive topics should come after a suitable legislative inquiry and should be supported by a reasoned motivation, able to justify the chosen scientific approach. The constitutional Court, which always more often plays a role as “judge of rights”, should give a convincing and persuasive motivation as to its decisions in these fields (maybe also through the use of dissenting opinions), giving account of the technical-scientific context within which the concerned discipline sets and pointing out the non involvement of Court’s intervention in political logics.