European Court of Human Rights to Rule on Two Euthanasia Cases

International   |   Grégor Puppinck   |   Jun 15, 2012   |   11:43AM   |   Strasbourg, France

In the coming months, the Council of Europe and the European Court of Human Rights will once again have to rule on the issues of euthanasia and assisted suicide.

Two cases, currently pending, will soon be decided by the European Court of Human Rights (ECHR – Koch v. Germany and Alda Gross v. Switzerland). Additionally, the Steering Committee on Bioethics of the Council of Europe (CBDI) is currently writing a guide for the decision making process regarding medical treatment in end of life situations, which will include instructions related to the cessation of acute care and the transition to palliative care and palliative sedation with cessation of hydration and nutrition. The ECLJ was allowed to submit written observations to the Court regarding the Alda Gross case.

These cases, and the drafting of this guide, come just weeks after the Parliamentary Assembly of Council of Europe (PACE) stated very clearly that: “Euthanasia, in the sense of the intentional killing by act or omission of a dependent human being for his or her alleged benefit, must always be prohibited” (Resolution 1859, January 25, 2012). The purpose of the resolution, entitled Protecting human rights and dignity by taking into account previously expressed wishes of patients, is to define the principles applicable in Europe to “living wills,” otherwise known as “advance directives.” Previously, in its Recommendation 1418 (1999) Protection of the human rights and dignity of the terminally ill and the dying, the Parliamentary Assembly of Council of Europe insisted that there is a “prohibition against intentionally taking the life of a terminally ill or dying person.”

The Parliamentary Assembly of Council of Europe and member States continue to strongly condemn euthanasia and assisted suicide; of the 47 member states of the Council of Europe only Belgium, the Netherlands, Luxenbourg, and Switzerland allow these practices.

However, the jurisprudence of the ECHR has not enforced the prohibition of euthanasia; implicitly it has given “permission” that lets member States adopt such practices. Some want the Court to go further and to impose through the ECHR an obligation on all States to recognize a “right to die” by the first recognizing a “right to suicide.” This is the objective of the new cases, Koch v. Germany and Gross v. Switzerland, in which the applicants seek the creation of a fundamental right to receive the means to die in a “safe and painless manner.”

In the case of Koch v. Germany (No. 497/09), Mrs. Koch, a quadriplegic, was denied the issuance of a lethal substance in Germany. She and her husband appealed the refusal, but immediately, without waiting for the outcome, they went to Switzerland where she obtained an “assisted suicide.” Her husband continued the proceedings, but was declared ineligible by the German courts because he was not himself a victim of the refusal at issue. He then petitioned the European Court, claiming first that the refusal violated both his and his wife’s right to privacy, (Article 8), and second, the absence of an effective remedy, (Article 13), since he was declared inadmissible in his action.

The Court decided to also consider the position under Article 6-1, the right of access to court. Although the Court has not yet ruled on the merits of the case, it declared the application admissible on May 31, 2011. This is surprising, first because the Court is usually very strict about the conditions of admissibility, and second because in an identical case (assisted suicide of a quadriplegic), Sanles Sanles v. Spain (48335/99, October 26, 2000), the Court declared the request of the sister-in-law, and heir of the deceased, inadmissible ratione personae. This case may be different.

In the case of Alda Gross v. Switzerland (no. 67810/10) filed on November 10th, 2010, the applicant, who did not suffer from any particular disease but merely desired not to grow old, complained that she was unable to obtain a lethal substance without a prescription, and that no physician would agree to issue her a prescription. She claimed that the State had a positive obligation to provide a means for her to commit suicide in a safe and painless manner. Ms. Gross claimed that this refusal constituted an infringement on her right to life (Article 2), since she had renounced life, as well as degrading treatment (Article 3), because she would have to endure old age.

Previously, in Pretty v. United Kingdom case (no. 2346/02) of 29 April 2002, the European Court held that Article 2, which guarantees everyone the right to life, “cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die.”

However, in a ruling dated January 20th, 2011, in the case Haas v. Switzerland, the Court has accepted and given its permission to euthanasia and assisted suicide. To do so, the Court did not considered the claim from the “right to life” (Article 2), but rather from the “right to privacy” (Article 8), which would, according to the Court, include a right to suicide—a “right of an individual to decide how and when his life must end” (Haas § 51, in French only).

This right to suicide exists for the ECHR only with the vague condition that the individual “is able to freely form his or her will on this and act accordingly.” The will, autonomy, of the candidate to death, is thus both theoretical justification and practical condition of the acceptability of assisted suicide. In the Haas decision, the Court adopted a liberal logic according to which each State that legalizes assisted suicide or euthanasia must justify their restrictions on the exercise of the “right” to suicide. The other States remain free to “give more weight to the protection of the life of the individual rather than his right to end it;” i.e. to not allow assisted suicide and euthanasia. The reversal of this liberal perspective is absolute because there is no doubt that the drafters of the Convention, at the end World War II and the Nuremberg trials, specifically wanted to fight against such practices.

The weakness of this liberal logic is that it is literally contrary to the Convention: this logic compels a disregard of the strict prohibition, imposed by the Convention, of the intentional infliction of death on anyone, even when there is consent. Thus the assertion of a right to suicide, assisted suicide, and euthanasia, based on privacy (Article 8), will always face the strict prohibition of killing and the obligation to protect life (Article 2).

The logic at work is similar to that used for the support of abortion. In order to create a right to euthanasia, or abortion, the legal perspective must be changed from prohibition to permission, and then to obligation. The assertion of a right to abortion under privacy failed with the ECHR Grand Chamber decision, A, B and C v. Ireland (December 16, 2010 No. 25579/05) in which the Grand Chamber clearly stated that it was against a right to abortion: “Article 8 cannot, accordingly, be interpreted as conferring a right to abortion.” (Paragraph 214) It is hoped that in the Koch and Gross cases, the Court will rule with the same clarity against a supposed “right to die” under privacy: there is no “right” to suicide. Suicide is a possibility but not an enforceable right.

Furthermore, not only can euthanasia or assisted suicide not be “rights,” but this practice should not be permitted or tolerated by the Convention, as it is in itself a flagrant violation of Article 2. Indeed, this article requires the State to respect and protect the lives of all people, without exception, and establishes the principle that “No one shall be deprived of his life intentionally.” If it is true that States have only a relative obligation to prevent suicide, it is also true that they have an absolute obligation not to take part in an intentional killing by a third person, either by providing the means or by not preventing it when possible. The Convention does not allow the consent of the victim to exempt the killer from liability, or exempt the State that let the killing take place.

Grégor Puppinck, Director of the ECLJ, hopes that with the Koch and Gross cases the Court will correct the absurd assertion of the existence of a “right to suicide:” society does not owe citizens the right to suicide and such an obligation cannot be forced upon it. All of the legal arguments building and supporting these cases are based on the assertion of an absurd right. Note: Grégor Puppinck is the director of the European Centre for Law and Justice, an international, Non-Governmental Organization dedicated to the promotion and protection of human rights in Europe and worldwide.