January 21, 2011
(Strasbourg,France) -- On January 20th, the First Section of the European Court of Human Rights delivered a much awaited judgment in the case of Haas versus Switzerland (application no 31322/07) about the “right to assisted suicide”.
As the Registry of the Court explains, “this case raised the issue of whether, by virtue of the right to respect for private life, the State should have ensured that a sick man wishing to commit suicide could obtain a lethal substance (sodium pentobarbital) without a prescription, by way of derogation from the law, so as to be able to end his life without pain and with no risk of failure”. The Court unanimously replied in the negative.
Although admitting a sort of right to suicide, the Court denied the existence of a right to assisted suicide stemming from the European Convention and guaranteed by the State. Dr Grégor Puppinck, Director of the ECLJ, notes that this new judgment confirms that one cannot rely on the Convention to claim an alleged right to euthanasia or to assisted suicide.
The applicant, suffering from a serious psychic disorder, wanted to commit suicide with a lethal substance available only on medical prescription, according to Swiss law. As he did not qualify under this law, he vainly undertook to obtain a dispensation in order to get the substance without prescription. He complains that this impossibility violates his right to privacy, guaranteed by Article 8 of the European Convention on Human Rights. According to the applicant, the State should have provided him with the drugs to commit suicide. The applicant was not suffering from a fatal disease and the latter did not prevent him from committing suicide by himself.
To answer the question, the Court first recalls the wide extent of the notion of private life, broadened through successive interpretations, especially to the right to autonomy and personal development. Thus, in the case of Pretty v. United-Kingdom (2002), the Court ruled that the decision of the applicant to avoid what she considered would be an undignified and distressing end to her life was part of the private sphere covered by the scope of Article 8 of the Convention.
Applying the Pretty case law, and using the words of the Swiss Federal Tribunal, the Court affirms “that the right of an individual to decide how and when to end his life, provided that said individual was in a position to make up his own mind in that respect and to take the appropriate action, was one aspect of the right to respect for private life” under Article 8 of the Convention (§ 51).
The Court thus recognises, with conditions, a sort of right to self-determination as to one’s own death, that is to say a right to suicide. The existence of this right is subject to two conditions, one linked to the free will of the person concerned, the other relating to their capacity to take appropriate action. The second condition shows that the right exists in so far as it can be implemented by the person concerned.
The Court also recalls that the Convention must be read as a whole, therefore it is necessary to refer to Article 2 of the Convention, which protects the right to life. The Court notes that the vast majority of member States place more weight on the protection of an individual’s life than on the right to end one’s life (§ 55) and concludes that the States have a broad margin of appreciation in that respect. In any case, respect for the right to life compels the national authorities to prevent a person from putting an end to their life if such a decision is not taken freely and with full knowledge (§ 54).
The Court weighs the interests at stake, that claimed by the applicant to commit suicide without pain or risk of failure, and that of the authorities. The Court observes that the requirement of a prescription pursues the legitimate aim of protecting individuals from taking a hasty decision and to prevent abuse (§ 56), especially in a country such as Switzerland, which readily allows assisted suicide. The Court considers that the risk of abuse inherent in a system which facilitates assisted suicide cannot be underestimated (§ 58). The Court concludes that the restriction on access to the lethal substance was intended to protect health and public safety and to prevent crime (§ 58).
Thus, in spite of the still problematic recognition of a sort of right to suicide, a peculiar an disputable extension of the right to private life, the Court doesn’t endorse the allegations of the applicant according to which the State would have a positive obligation to take measures allowing for a rapid and painless suicide. On the contrary, under Article 2 which guaranteed the right to life, the State must ensure the protection of the life of people under its jurisdiction. Even when assisted suicide is allowed, as in Switzerland, the State must prevent abuse in the use of this faculty because of his obligation to protect life.
Court decision in French only
The European Centre for Law and Justice is an international, Non-Governmental Organization dedicated to the promotion and protection of human rights in Europe and worldwide. The ECLJ holds special Consultative Status before the United Nations/ECOSOC since 2007.
The ECLJ engages legal, legislative, and cultural issues by implementing an effective strategy of advocacy, education, and litigation. The ECLJ advocates in particular the protection of religious freedoms and the dignity of the person with the European Court of Human Rights and the other mechanisms afforded by the United Nations, the Council of Europe, the European Parliament, the Organization for Security and Cooperation in Europe (OSCE), and others.