The right to assisted suicide, a fundamental right?

Publié le 30 Apr, 2013
On May 2013, the second section of the European Court for Human Rights (ECHR) rendered a judgment (Alda Gross vs. Switzerland) participating in establishing an individual right to assisted suicide which would derived from the right to private life (article 8 of the European Convention on Human Right) Grégor Puppinck, director of the European centre for law and justice (ECLJ), third party in the case, delivers his analysis to Gènéthique.
G: Which is the decision of the Court on the Gross vs. Switzerland judgment? 
GP: This case concerns an octogenarian woman who, tired of living and who did not want to see the decline of her physical and mental faculties, talked to various physicians to have a mortal doses. As she only received refusals due to her good mental condition, she seized the ECHR claiming an infringement of her right to private life.
Let’s precise that in Switzerland the legislator did not adopt a legal scheme specifying the modalities of the practice of assisted suicide. Only the rules of medical deontology apply: a physician can prescribe a lethal substance to an end-of-life willing-patient. The Court censures Switzerland on this point: the deontological standards do not have the formal quality of law and only concern end-of-life patients. According the majority of judges of the Section (4 against 3), this scheme would impose an uncertainty on physicians and candidates to suicide concerning the conditions of the right to assisted suicide and would infringe the article 8 (§ 67).  Then the Court asks Switzerland to adopt a legal frame for assisted suicide regardless of patients’ health condition.
G: You say that the judgment Gross vs. Switzerland “completes” the establishment of an individual right to assisted suicide?
GP: Yes, I do, because this decision follows different judgments (1) by which the Court progressively established “the right for a person to decide the way and the time she/he wants to die(2). Then it condemned the prohibition of principle of euthanasia estimating that the jurisprudence could judge individual requests on a case-by-case basis (3). This time, the Court condemns in substance the fact that the effective exercise of the right to assisted suicide is conditioned by medical standards which exclude the assisted suicide of healthy people. With all these judgments, the Court came to neutralize the prohibition of euthanasia by means of procedural ways.
G: What do you mean by “procedural obligations”? 
GP: The procedural obligations guarantee, not the (substantial) right to assisted suicide (to talk about Gross judgment), but the (procedural) right to know if we can benefit from it. Concretely in the Gross judgment, the Court did not mention that this is the impossibility to be euthanized which constitutes the infringement of the right to private life, but the state of uncertainty in which the candidate to euthanasia is in the absence of legal frame. Imposing these procedural obligations to a State, the Court defends his decision to take position on the substance of law. However, to impose them, it must confirm the existence of an internal right compliant with the Convention. Here, it confirms that the assisted suicide falls within the scope of private life.
G: But is there any evident contradiction between the “right to assisted suicide” and the “right to live” (art. 2)?
GP: Indeed, the creation of a right to assisted suicide faces the article 2 which establishes the strict prohibition of killing. But the Court ignores more and more this article particularly for euthanasia or abortion (A.K. vs. Lettonie  case) (4) to the benefit of a right to private life. This generates serious inconsistencies in the jurisprudence of the Court and weakens its authority.  Let’s note for instance that on the same day, the Court condemned France for not prohibiting an inmate to commit suicide (5) (infringement of the right to live) and Germany for not helping a woman to commit suicide (6) (infringement of the private life).
G: Is there a way to act so that the right to assisted suicide is not elevated to the rank of fundamental right?
GP: Yes there is, particularly in this case, because Gross case is not yet final. This means that Swiss government has still three months to reference to Great Chamber. It is totally possible that it is heard given the European consensus opposed to assisted suicide (only 4 countries in Europe adopted them) and the division of the Court on these subjects of society. Thus it is necessary Switzerland introduces this resort, so that the authentic meaning of human rights is reaffirmed.
1- Pretty vs. UK (N°. 2346/02 of 29 April 2002), Haas vs. Switzerland (N°. 31322/07 of 20 January 2011) and Koch vs. Germany (N°. 497/09 of 19 July 2012)
2- Haas vs. Switzerland § 51 case  Koch vs. Germany 2012 case
3- Koch vs. Germany 2012 case
4- A.K. vs. Lettonie case, Gènéthique monthly letter April 2012 – initiative 
5- Arrêt Ketreb c. France 13 juillet 2012, req. 38447/09
6- Arrêt. Koch c. Allemagne.
Research on the embryo, the saga continues.
According to the Council of Ministers of last 7th May: the bill lifting the ban on the research on the embryo will come back to the Parliament before the summer. Although for the moment nothing is listed in the calendar, we have to expect it. In parallel, as for getting accustomed, the effects of announcement on the embryo continue and could be subject to a political exploitation in France.  This context is the occasion to mention the European mobilization “Un de nous  which allows going out from the anaesthesia of proponents of the research on the embryo.

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