ECHR CONFIRMS NO RIGHT TO ASSISTED SUICIDE & PROMOTES PALLIATIVE CARE

By: ECLJ

Photo: The Hungarian Muse

The European Court of Human Rights has delivered a long-awaited ruling on end-of-life issues in the landmark case of Karsai v. Hungary. It confirms the absence of a right to assisted suicide pending future developments in European societies in this area. For the first time, palliative care is presented and promoted as “essential to ensuring a dignified end of life.” The ECLJ intervened in this case and was authorized to submit written observations (in French only).

Surely, supporters of euthanasia will be disappointed by the judgment handed down on June 13, 2024, by the European Court of Human Rights (hereafter ECHR) in a highly sensitive case. A former European Court jurist suffering from a neurodegenerative disease had come to plead his case before the Strasbourg judges. He hoped that the ECHR, after a long evolution of its case law, would “finally” recognize a right to assisted suicide under the European Convention on Human Rights. Based on the Court’s precedents over the last fifteen years, the Court was likely to rule in the man’s favor. Surprisingly, the Court did not do so but cautiously indicated, obiter dictum, that it might take this step at a later stage should the practice become legalized by a significant proportion of European states and accepted by international ethical standards. This openness is one of the main contributions of this decision. The Court had already made such overtures with regard to the future recognition of a right to be gender-neutral and a right to fatherless in vitro fertilization. In other words, the ECHR considers that it is too early to create a right to assisted suicide; to do so would be tantamount to obliging the 46 member states of the Council of Europe to legalize the practice. Such a step would have been too high.

Nevertheless, the Court confirmed the steps it had already taken in this direction. It reaffirmed that euthanasia and suicide do not violate the prohibition on the intentional deprivation of life laid down in Article 2 of the European Convention. The Court pointed out that these practices fall within the scope of privacy guaranteed by Article 8 and that States may authorize them, but on condition that “appropriate and sufficient safeguards to prevent abuse” are adopted.

As for the main question raised in this case concerning the possible obligation of States to legalize such practices under the right to respect for private life, the Court answered no. In support of the prohibition of assisted suicide, it observed that “the wider social implications and the risks of abuse and error entailed in the provision of physician-assisted dying weigh heavily in the balance.” It also considered that states have a “considerable margin of appreciation” in this area, given the issue’s highly sensitive moral and ethical nature and that the majority of member states continue to prohibit the practice under criminal law. States may, therefore, continue to prohibit euthanasia and assisted suicide under criminal law in their own countries and may even prosecute those involved in these practices abroad on their own nationals. The Court concludes by stating that the question must remain open “having regard to the developments in European societies and in the international standards on medical ethics in this sensitive domain.”

Only one of the seven judges who decided the case took the opposite view. Quoting philosopher Ronald Dworkin, he stated that the Court should have created such a right without further delay, by virtue of “a much-needed “progressive” interpretation of the Convention.” In so doing, he drew on the constantly repeated assertion that the Convention is a “living instrument,” not a fixed text.

Finally, in an innovative and interesting move, rather than creating a right to assisted suicide, the Court preferred to emphasize very clearly the importance and necessity of “high-quality palliative care, including access to effective pain management,” which it described as “essential to ensuring a dignified end of life” (§ 154). This case is the first time that the Court has placed such emphasis on palliative care in its end-of-life jurisprudence and presented it as falling within the positive obligations of States. The Court’s emphasis on palliative care is the second significant contribution of this judgment.

This decision may appear cautious, as the Court indicates that it does not wish to move faster than society by brutally imposing a new human right to voluntary death. However, it illustrates the European Court’s tendency to detach itself from the text of the Convention and to judge according to the evolution of legislation, i.e. current lifestyle.

It is dangerous for human rights to have their content and protection dependent on changes in mentality and legislation. This dependency makes them variable and relative. This evolutionary approach even runs against the role assigned to human rights, which were instituted after the Second World War to establish intangible principles against which to judge the acceptability of various practices and legislation. The role of human rights is to set a limit to practices and developments, even if they are adopted by a majority, rather than to conform to them in order to enshrine them. The evolutionary approach embraced by the Court leads to the idea that assisted suicide is a human right according to the number of countries that have legalized it, which is philosophically absurd. It amounts to making the content of human rights dependent on political life.

Admittedly, the judge must interpret the Convention to apply it to a changing reality, but this power is not without limits. It must respect both the rights and freedoms defined in the text of the Convention and the States that have adopted this treaty and instituted the Court.

It is not for the judge to depart from the text of the Convention and the intention of its drafters—he has no legitimacy to do so. Yet, how can we fail to see that the practice of euthanasia is contrary to the principle laid down at the head of the Convention, according to which “No one shall be deprived of his life intentionally.” Exceptions, such as self-defence, are exhaustively listed, but no exception to euthanasia is provided for in the Convention, not even the possible request for death by the person concerned. This is the point made by Judge Serghides, to whom Judge Wojtyczek refers in the present case, when he writes that “any form of euthanasia or legislative framework surrounding such a practice would not only lack a legal basis under the Convention, but would also be contrary to the fundamental Convention right to life.”