On 14 May 2013, the European Court of Human Rights (ECHR) condemned Switzerland for its legislation of assisted suicide deeming that it lacked precision and should be governed by legal as opposed to deontological standards. Consequently, and at the request of the Swiss Government, the Court decided to refer the case to the High Court for re-evaluation.
The aim of this judgement is to confirm or invalidate the existence of the “right to assisted suicide” in terms of the European Convention on Human Rights. The hearing before the Grande Chambre should have taken place last April. “Contrary to the Court’s customs and for a reason unknown to the public, [the hearing] was postponed sine die”.
Against this background, Grégor Puppinck and Claire de la Hougue from the European Centre for law and Justice (ECLJ) carried out an analysis of the gradual drafting by the ECHR of the “right to assisted suicide” in accordance with the European Convention on Human Rights.
With regard to the following cases, namely Pretty versus the United Kingdom (29 April 2002), Haas versus Switzerland (20 January 2011) and Koch versus Germany (19 July 2012), the ECHR has gradually specified the outlines of a right to assisted suicide. This right is based on the fact that, “in an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in a state of advanced physical or mental decrepitude, which conflict with strongly held ideas of self and personal identity”.
In the Pretty case, the Court was not prepared to “exclude that preventing the applicant from exercising her choice to avoid what she considers to be an undignified and distressing end to her life constitutes an interference with her right to respect for private life, as guaranteed under Article 8§1 of the Convention.” The Court also specified that the right to life (Article 2) “cannot, without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die”.
In the Haas judgement, with regard to Article 8, the Court confirmed the existence “of an individual’s right to decide by what means and at what point his/her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence”. It thus introduces the hypothesis that the States could have “a positive obligation to adopt measures to facilitate the act of suicide with dignity”.
In the Koch judgement, the Court referred to the positive obligations, “asking that a jurisdiction should judge on a case-by-case basis on the validity of individual requests for assisted suicide, whereas this practice is a criminal offence.” According to the Court, “suicide is an expression of individual autonomy”, “the ‘right’ to assisted suicide would not be due to suffering or the inevitable death but due to respect for individual freedom”.
Thus, for Grégor Puppinck and Claire de La Hougue, the Court, by adopting such reasoning, “transcribes contemporary individualism, revolutionising a foundation of the Convention: human dignity would no longer be inherent but relative and reflexive, absorbed by individual freedom.”