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J U R I D I C U M
A Human Right to Die?
The Legality of Euthanasia under the European Convention on Human
Rights
Amanda Engström
VT 2020
RV600G Rättsvetenskaplig kandidatkurs med examensarbete, 30 högskolepoäng Examinator: Adam Croon och Katalin Capannini-Kelemen
Summary
This bachelor thesis examines whether there is a human right to die with assistance, so-called euthanasia, included in the European Convention on Human Rights (ECHR). It finds that a right to die is not expressly enumerated within the rights and freedoms set forth in the ECHR. Consequently, it investigates whether such a right derives from Article 2 or Article 8 of the Convention. This thesis further examines if there is a unanimity within the European Union regarding an individual’s possibility to decide over one’s death, by reviewing state practice of Sweden and the Netherlands. Eventually, it observes the main arguments in the legal debate concerning euthanasia and evaluates the possibility of establishing a common practice related to euthanasia within the Union.
With the use of a legal dogmatic method, this thesis identifies that Sweden prohibits active euthanasia and physician-assisted suicide due to the risk of abuses. However, acts of passive and indirect euthanasia are allowed as a last resort to alleviate suffering. Contrariwise, it finds that the Netherlands has decriminalised euthanasia and assisted suicide performed by doctors for the reason that a ban would generate an uncontrollable situation. It thus concludes that a consensus between the Union Member States is missing. As a consequence, this thesis
analyses whether acts of euthanasia are legitimate or incompatible with Article 2 and Article 8 of the ECHR. It discovers that Article 2 is not be interpreted to contain a right to die and neither that such a right is enshrined in Article 8. Nevertheless, it finds that the European Court of Human Rights (ECtHR) has hesitated to determine whether the legality of euthanasia contravene with the Convention by referring to the margin of appreciation left to the Member States in matters related to moral questions.
When analysing the euthanasia debate, this thesis detects that the primary arguments are divided into two opposing principles, namely the assurance of personal autonomy against the protection of the human dignity of all individuals. By taking into consideration the reasoning for and against the lawfulness of euthanasia as well as the discretion given to the Member States, it finally concludes that it is impossible to institute a universal standard regarding euthanasia within the European Union at the present time. Nevertheless, it stresses that an examination of the pending application in Mortier v Belgium before the ECtHR could change the existing situation.
Table of Contents
1. Introduction 1
1.1. Background 1
1.2. Purpose and Research Questions 2
1.3. Method and Material 2
1.4. Delimitations 3
2. Definitions 5
2.1. Euthanasia 5
2.2. The Beginning and End of Life 6
2.3. The Right to Life and Respect for Privacy 7
2.4. Margin of Appreciation 8
3. National Regulations of Euthanasia 10
3.1. Sweden 10
3.2. The Netherlands 11
4. The European Convention on Human Rights 14
4.1. A Right to Die under Article 2? 14
4.2. A Right to Die under Article 8? 16
5. The Reasoning Behind National Rules of Euthanasia 18
5.1. The Lawfulness of Euthanasia Reasoned in the Netherlands 18 5.2. The Current Situation in Sweden Concerning Euthanasia 19
6. Criticism and Arguments in Favour of a Legalisation of Euthanasia 22
7. Final Analysis: A Consistent Practice? 26
8. Conclusion 30
1. Introduction
Modern medicine provides for an increased possibility to cure diseases and prolong life, but also to hasten death by withdrawing life-sustaining treatments. With the extension of medical 1 technology follows the question of who holds the right to decide over one’s body in matters related to life and death. Is such a choice assigned to you, your relatives, or the authorities in the state you live? The rapid development of technology increases the need to enact laws covering moral issues. However, are those matters to be answered nationally or 2
internationally?
1.1. Background
Euthanasia primarily raises concerns in terms of the enjoyment of the right to life, which is one of the most fundamental principles that has been established. It is a basis for the enjoyment of other rights and freedoms protected by several human rights instruments, of 3 which the European Convention on Human Rights (ECHR) is not an exception. The right to 4 life forms part of customary international law, and all forms of derogations are prohibited. 5 6 Nonetheless, some restrictions may be justified, like the enforcement of death penalty and acts of force that are absolutely necessary. Euthanasia is not enumerated as a ground for
justification, although it is executed in various states that have ratified the ECHR. The 7 8 lawfulness of euthanasia has induced an expansion of disputes due to different moral beliefs and cultural norms that prevail in society. Numerous cases have been brought before the 9 European Court of Human Rights (ECtHR) as a consequence of obscurities regarding the
1 Torbjörn Tännsjö, ‘Moral Dimensions’ (2015) BMJ 331, 689.
2 Richard Åkerman, ‘Är det min eller är det jag? Äganderätt till kroppen’ (2003) Häfte 7 SvJT 637, 651. 3 See Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on
Human Rights, as amended by Protocol Nos. 11 and 14) (adopted 4 November 1950, entered into force 3 September 1953) ETS 5, art 2 (ECHR); Charter of Fundamental Rights of the European Union [2012] OJ C 326/391, art 2; International Covenant of Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art 6 (ICCPR); Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) art 3; Convention on the Rights of Persons with Disabilities: Resolution adopted by the General Assembly (adopted 24 January 2007, entered into force 8 May 2008) A/RES/61/106, art 10 (CRPD); Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3, art 6 (CRC); American Convention on Human Rights: “Pact of San Jose, Costa Rica” (adopted 22 November 1969, entered into force 18 July 1978), art 4 (ACHR); African Charter on Human and People’s Rights: (Banjul Charter) (adopted 27 June 1981, entered into force 21 October 1986) CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), art 4 (ACHPR).
4 ECHR (n 3) art 2.
5 Niels Petersen, ‘Life, Right to, International Protection’ (October 2012) in Max Planck Encyclopedia of Public
International Law (MPEPIL) (online edn) accessed 28 April 2020, para A 1-2.
6 See McCann and Others v the United Kingdom, App no 18984/91 (ECtHR, 27 September 1995) (McCann v the
UK); UN Human Rights Committee, ‘General Comment 36: Article 6: Right to Life’ (3 September 2019) UN Doc CCPR/C/GC/36, para 2.
7 ECHR (n 3) art 2.
8 Statens Medicinsk-Etiska Råd, ‘Dödshjälp: En Kunskapssammanställning’ [The Swedish National Council on
Medical Ethics, ‘Euthanasia: A State of Knowledge Report’ (own translation)] (2017) 5, 47 (SMER).
9 The Parliamentary Assembly of the Council of Europe, ‘Assistance to Patients at End of Life’ (9 February
legality of euthanasia under the ECHR. A clarification of the legal situation is thus needed in 10 order to settle the controversies related to euthanasia within the European Union. 11
1.2. Purpose and Research Questions
The main purpose of this thesis is to investigate if there is a human right to die with assistance, so-called euthanasia, included in the ECHR. A review of national laws of two Members States of the European Union (EU) will be issued in order to examine whether there is a unanimity within the Union regarding individuals’ possibility to control one’s cessation of life. Additionally, this thesis will analyse whether a right to die should be incorporated into the ECHR, taking into consideration the legal debates on the matter. In order to reach the present purpose, the following questions have to be answered:
● Is it a right to die included in the right to life or in the right to respect for private and
family life of the ECHR?
● How do Sweden and the Netherlands regulate euthanasia? And what are their motives
for such a regulation?
● What are the main arguments in favour of respectively against decriminalisation of
euthanasia?
● Is it possible to establish a universal standard related to euthanasia within the
European Union?
1.3. Method and Material
This thesis aims to examine if it is a human right to decide over one’s death within the ECHR by using a traditional legal dogmatic method. The purpose behind the method is to find the applicable law on a legal issue by using the generally accepted sources of law and interpret these sources on the problem in order to perceive a legal solution. Within this thesis, a 12 comparative analysis will be conducted to examine state practices regarding euthanasia of two Member States of the European Union. A comparative method forms part of the legal
dogmatic method, meaning that a clarification of the applicable legal sources in these
countries will be identified as well. EU law and the judgments of the ECHR are superior to 13 national sources of law, which means that national findings are examined in the light of the legal sources of the Union. Generally accepted sources of law derive from the Rule of 14
Recognition in the national legal system of each state. The Rule of Recognition implies that
sources become legally binding when legal professionals within a state, systematically and collectively evaluate these sources as judicial authoritative. Usually, sources of law are 15
10 See for example Pretty v the United Kingdom, App no 2346/02 (ECtHR, 29 April 2002) (Pretty v the UK);
Haas v Switzerland, App no 31322/07 (ECtHR, 20 January 2011) (Haas v Switzerland); Lambert and Others v
France, App no 46043/14 (ECtHR, 5 June 2015) (Lambert v France); Mortier v Belgium (communicated case), App no 78017/17 (ECtHR, January 2019) (Mortier v Belgium).
11 Doc. 10455 (n 9) para 48.
12 Jan Kleineman, ‘Rättsdogmatisk metod’ in Maria Nääv and Mauro Zamboni (red.), Juridisk Metodlära [Jan
Kleineman, ‘Legal Dogmatic Method’ in Maria Nääv and Mauro Zamboni (eds), Legal Methodology (own translation)] (Studentlitteratur 2019) 21.
13 ibid 41.
14 Regarding the superiority of EU-law see Judgment of 15 July 1964, Flaminio Costa v E.N.E.L, C-6/64,
ECLI:EU:C:1964:66, 593-594. For the binding force of ECtHR-judgments in Member States see ECHR (n 3) art 46.
15Christian Dahlman, ‘Begreppet Rättskälla’ in Christian Dahlman and Lena Wahlberg, Juridiska
divided into primary sources and secondary sources. Primary sources of public international 16 law are defined in Article 38 of the Statute of the International Court of Justice and comprise international conventions, customary international law, general principles of law, judicial decisions and doctrines of the most highly qualified publicists in the various states. These 17 sources are binding on states. In turn, secondary sources like journals, dictionaries, and 18 commentaries are non-binding materials but function as guidance when interpreting law. 19 In this thesis, primary sources as the ECHR and case law from the ECtHR will be examined. General principles of EU law, like the principle of the margin of appreciation, the principle of proportionality, and the principle of personal autonomy, will also be dealt with. National legislation like the Swedish Criminal Code and the Dutch law on Termination of Life on 20 Request and Assisted Suicide (Review Procedures) Act, as well as national case law from 21 the highest judicial authorities, will be analysed. Additionally, several national decisions from lower courts will be used, even though it is debatable whether such case law serves as sources of law. In this thesis, decisions of lower courts will be treated as legal sources due to their 22 historical significance with regard to euthanasia. In Sweden, preparatory works are considered valuable sources of law as they contain information about the intentions behind the laws. Preparatory works to Swedish laws will thus be examined for deeper comprehension. In 23 order to understand and discuss the legal findings, secondary sources as books and journals regarding the States’ legal systems and recommendations from the Parliamentary Assembly of the Council of Europe will be used. When investigating Member States’ margin of
appreciation under the right to life and the right to respect for private and family life, some international critique from the United Nations Human Rights Committee (HRC) will be reviewed. State responses to the HRC will also be studied, even though the Committee addresses human rights violations within the United Nations International Covenant on Civil and Political Rights. Furthermore, publications of four philosophers will be examined to 24 address the main arguments within the euthanasia debate.
1.4. Delimitations
Due to the limited scope, this bachelor thesis has been limited to cover acts of active voluntary and non-voluntary euthanasia, passive euthanasia, indirect euthanasia, assisted suicide and physician-assisted suicide, as they are considered legal in various countries within
Christian Dahlman and Lena Wahlberg, Basic Legal Concepts - A Friend’s Book to David Reidhav (own translation)] (Studentlitteratur 2019) 61-64.
16 Hoffman Marci and Rumsey Mary, International and Foreign Legal Research: A Course Book (2nd edn,
BRILL 2012) 9-10.
17 Statute of the International Court of Justice (18 April 1946) art 38. Note that national decisions are not defined
as primary sources in some jurisdictions.
18 Hoffman and Rumsey (n 16) 10. 19 ibid 14-15.
20 Brottsbalk (1962:700) [The Swedish Criminal Code (1962:700)] (Swedish Criminal Code).
21 Wet toetsing levensbeëindiging op verzoek en hulp bij zelfdoding [Termination of Life on Request and
Assisted Suicide (Review Procedures) Act] (adopted 12 April 2001, entered into force 1 April 2002) (Termination of Life Act).
22 Dahlman (n 15) 69-70.
23 Victoria Enkvist, Religionsfrihetens Rättsliga Ramar [Victoria Enkvist, Legal Framework of the Freedom of
Religion (own translation] (Iustus 2013) 21.
24 United Nations Human Rights Office of the High Commissioner, ‘Human Rights Committee’
the European Union. This thesis examines euthanasia requested by individuals suffering 25 from physical and physiological diseases exclusively. As euthanasia involves death with the assistance of another person, acts of suicide will not be developed. Nevertheless, acts of 26 suicide will be mentioned since they are occasionally associated with individuals’ desires to be subjected to euthanasia. The execution of abortions is neither investigated thoroughly but 27 introduced to define when the right to life begins. In addition to abortions, this thesis will not cover acts of euthanasia that are enforced on individuals under the age of 18 years. 28
The focus of this thesis is to investigate if euthanasia constitutes an unlawful act under the right to life and the right to respect for private and family life of the ECHR. Other human 29 rights instruments will merely be cited to demonstrate the importance of these rights and to define when these provisions are applicable. The ECHR does not expressively contain a right to die. The right to life will thus be analysed in order to explore if it forms an opposite right. As Article 8 of the Convention has been found to protect personal autonomy, this provision 30 has been relied on in numerous cases of euthanasia brought before the ECtHR. Accordingly, 31 an examination of whether euthanasia could be protected under the right to respect for private and family life has to be issued. Furthermore, this thesis examines national norms regarding euthanasia in two Member States of the Union, as the Member States are considered to enjoy broad discretion when dealing with moral and ethical questions. In order to investigate the 32 extensive material properly, two countries were a proportionate number. Other human rights provisions related to euthanasia are not included due to deficient case law from the ECtHR on this issue. However, the principles of self-determination and human dignity are mentioned, as they compose essential values in the legalisation debate. This thesis highlights the main 33 arguments in the euthanasia debate as identified within the processed material, meaning that less common arguments have been excluded. Publications of four philosophers have been examined to understand the reasoning in the debate. These scholars were selected as their works address the issue of euthanasia and present the different views of the leading arguments within the debate. 34
25 John Griffiths, Heleen Weyers and Maurice Adams, Euthanasia and the Law in Europe (Hart Publishing 2008)
2-3; Carlo Focarelli, ‘Euthanasia’ (October 2013) in Max Planck Encyclopedia of Public International Law (MPEPIL) (online edn) accessed 29 April 2020, paras 6-9.
26 Focarelli (n 25) para 3.
27 See for example Haas v Switzerland (n 10) [7].
28 Note that the Netherlands allows euthanasia to be executed on minors under certain circumstances. For more
information see Griffiths, Weyers and Adams (n 25) 105-106.
29 The right to life is enshrined in Article 2 of the ECHR and the right to respect for private and family life is
protected under Article 8 of the ECHR (n 3).
30Pretty v the UK (n 10) [61].
31 See for example Pretty v the UK (n 10); Lambert v France (n 10); Haas v Switzerland (n 10). 32 See Lambert v France (n 10) [144]-[145].
33 The Parliamentary Assembly of the Council of Europe, ‘Euthanasia’ (10 September 2003) Doc. 9898, paras
50, 55 (Doc. 9898).
34 See for example Ronald Dworkin,‘Euthanasia, Morality, and Law: Transcript’ (1998) 31 Loyola of Los
Angeles Law Review 1147, 1147-1149; Peter Singer, Practical Ethics (2nd edn, CUP 1993) 175-217; Tännsjö (n 1) 689-691.
2. Definitions
In order to understand the content of this thesis, an explanation of what is included in the designation ‘euthanasia’ is needed. A clarification of when life begins and ceases pursuant to the ECHR and national legislation also needs to be introduced as euthanasia is linked with the end of life. In several cases related to the termination of life by request brought before the ECtHR, the applicants’ have relied on the right to life and the right to respect for private and 35 family life (the right to private life) prescribed in the ECHR. A description of Member States’ obligations under these provisions is thus necessary in order to understand the reasoning of the Court in the presented cases of this thesis. For the same reason, the extent of the principle of the margin of appreciation needs to be defined.
2.1. Euthanasia
The term ‘euthanasia’ has a wide meaning and refers to actions that generate a gentle and easy death of those who suffer from incurable disorders due to illness or accidents. Euthanasia 36 37 is primarily performed on requests of individuals suffering from illnesses like cancer or motor neuron diseases. However, in a few countries, euthanasia is also granted to persons diagnosed with physiological disorders and dementia. The most recognised forms of euthanasia are 38 classified as active euthanasia, passive euthanasia, indirect euthanasia, voluntary euthanasia, non-voluntary euthanasia, involuntary euthanasia, and assisted suicide. Active euthanasia 39 refers to an intentional act of ending someone’s life, like the injection of a lethal dose of 40 drugs, whereas passive euthanasia involves an act of omission as ceasing or refraining from initiate a medical treatment. Indirect euthanasia occurs when a patient passes away after being prescribed a large dose of medicine such as painkillers, which is not intended to kill but knowingly hastens death. These forms of euthanasia can either be voluntary, non-voluntary, 41 or involuntary. 42
Voluntary euthanasia means that a patient makes a request of dying by giving his or her consent, while non-voluntary euthanasia covers situations where relatives or doctors decide on behalf of the patient. Non-voluntary euthanasia may be actualised when a patient cannot give his or her consent due to coma or diseases where life-sustaining treatment is essential to prolong life. Involuntary euthanasia is universally prohibited, as it covers acts that cause death against the will of another person. As a result, involuntary euthanasia will not be examined 43 in this thesis. Assisted suicide is frequently included in the notion of euthanasia and is described as an act where a third party intentionally assists a person to commit suicide when he is incapable of doing so by himself. Assisted suicide is defined as physician-assisted suicide if the assistant is a medical doctor. 44
35 See for example Pretty v the UK (n 10); Lambert v France (n 10); Haas v Switzerland (n 10). 36Oxford English Dictionary (2nd edn, 1989) ‘Euthanasia’, part 3.
37 SMER (n 8) 159-160.
38 ibid 15. Note that euthanasia due to mental disorders is allowed within the Netherlands, Belgium, and
Switzerland, but not in Oregon and Washington.
39 Note that there have been other forms of euthanasia that are irrelevant in today’s debates, like ‘eugenic
euthanasia’ and ‘economic euthanasia’. For further information see Focarelli (n 25) paras 4-5.
40 Penney Lewis, Assisted Dying and Legal Change (OUP 2007) 5. 41 Focarelli (n 25) paras 2-3.
42Ani B. Satz, ‘The Case Against Assisted Suicide: For the Right to End-Of-Life Care: Reexamined’ (2002)
John Hopkins University Press 1380, 1384.
43 Focarelli (n 25) paras 2-3. 44 Satz (n 42) 1384-1385.
The aforementioned forms of euthanasia may constitute normal medical practice in various countries when performed by a doctor. In both Sweden and the Netherlands, a doctor may 45 withdraw or abstain from initiating life-prolonging treatments with or without the consent of the patient. Doctors are able to make such decisions if the treatment causes more suffering than relief for the patient, and is regarded as medically insignificant. In Sweden, a doctor is 46 47 required to consult other healthcare professionals before implementing his resolution, 48
whereas a Dutch doctor should consider the prevailing medical standards. It is also possible 49 for a patient to request ceasing or withholding from a life-sustaining treatment if the patient is fully aware of the consequences. Additionally, a healthcare professional is allowed to 50 administer medication to the patient to ease suffering, even though it hastens death. A
provision of medicine with a life-shortening effect is only admissible if there is no intention to kill. In cases when these acts cause the death of the patient, the passing will be regarded as a 51 natural death. 52
In this thesis, the general term euthanasia will be applied to cover voluntary and non-voluntary active euthanasia. The same designation will describe withholding and withdrawal of life-prolonging treatments (passive euthanasia), as well as the prescription of medical substances that shorten life (indirect euthanasia). Lastly, the phrase euthanasia will include assisted suicide and physician-assisted suicide. A distinction will be made for comprehension when relevant.
2.2. The Beginning and End of Life
The right to life is safeguarded in various human rights treaties, but a reference when life 53 actually arises is missing in the majority of instruments. A few human rights conventions 54 refer to the inherent right to life, or that the right shall be respected ‘from the moment of 55 conception’. In Vo v France56 , the ECtHR analysed whether an unborn child was granted 57 protection under the right to life. The Court found that the provision does not directly cover an unborn child due to the legality of abortions but that the right may apply to an unborn child under certain circumstances. Moreover, the ECtHR announced that matters related to the beginning of life fall within Member States’ margin of appreciation, due to the lack of a
45 Griffiths, Weyers and Adams (n 25) 2.
46 Socialstyrelsen, ‘Socialstyrelsens Föreskrifter om Ändring i Föreskrifterna och Allmänna Råden (SOSFS
2011:7) om Livsuppehållande Behandling’ [The Swedish National Board of Health and Welfare, ‘The Swedish National Board of Health and Welfare’s Regulation of an Amendment in the Regulation and General Advice (SOSFS 2011:7) of Life-Sustaining Treatment (own translation)] (2017) HSLF-FS2017:26, ch 3 art 2-3 (SOSFS); Griffiths, Weyers and Adams (n 25) 59-60.
47 SMER (n 8) 64; Griffiths, Weyers and Adams (n 25) 59-60. 48 SOSFS (n 46) ch 3 art 2.
49 Griffiths, Weyers and Adams (n 25) 61.
50 SOSFS (n 46) ch 4 art 1; Griffiths, Weyers and Adams (n 25) 57-58. Note that a refusal of treatment made in
writing when the patient was competent is absolute according to Dutch medical guidelines.
51 SMER (n 8) 67-69; Griffiths, Weyers and Adams (n 25) 65-66. 52 Griffiths, Weyers and Adams (n 25) 56.
53 See ECHR (n 3) art 2; Charter of the Fundamental Rights of the European Union (n 3) art 2; Universal
Declaration on Human Rights (n 3) art 3; ICCPR (n 3) art 6; CRPD (n 3) art 10; CRC (n 3) art 6; ACHR (n 3) art 4; ACHPR (n 3) art 4.
54 Petersen (n 5) para B 8.
55 CRPD (n 3) art 10; CRC (n 3) art 6. 56 ACHR (n 3) art 4.
universal consensus on the matter. Even though it is for national legislators to define when 58 life begins, a unified clarification is missing in both Sweden and the Netherlands. By 59 investigating legislation concerning abortion in both countries, some comprehension can be obtained. Within Sweden, an abortion can be lawfully realised until 18 weeks of gestation, 60 whereas the Netherlands approve abortions until the 24th week. When that time has passed, 61 an abortion may only be justified under fixed circumstances as the foetus can be viable outside the mother’s body. 62
As with the question of when life begins, there is neither an international unanimity on when the moment of death occurs. In medicine, death historically appears with a permanent 63 cessation of heartbeat. However, with the improvement of life-support techniques, death may also be declared when the brain no longer regulates the vital functions of the body. 64
Consequently, national legislators have freedom in determining whether death occurs with the cessation of the heart functioning or the discontinuation of the brain control of vital functions.
According to Dutch and Swedish legislation, death occurs when the entire function of the 65
brain has ceased irreversibly. 66
2.3. The Right to Life and Respect for Privacy
Euthanasia raises issues under the right to life-provision enshrined in Article 2 of the ECHR. The provision demands state parties to protect the right through law. State parties are not 67 required to incorporate the wording of the provision into national law but are forced to 68 refrain from intentionally taking the lives of others. Additionally, the provision imposes a positive obligation on Member States to ensure the right to everyone within its jurisdiction by preventing criminal acts that may risk the lives of others. Although the right to life is 69
regarded as an absolute right, it can be limited if death occurs as a consequence of a lawful act of war or as a result of the use of force that was absolutely necessary. 70 71
58Vo v France (n 57) [80]-[82].
59 Carl Edvard Sturkell, ‘Lagstiftning om Livets Början’ in Statens Medicinsk-Etiska Råd, Etiska Vägmärken
10:Om Livets Början - En Debattskrift [Carl Edvard Sturkell, ‘Legislation of The Beginning of Life’ in The Swedish National Council on Medical Ethics, Ethical Signs 10: About the beginning of Life - A Written Debate (own translation)] (2000) 73.
60 Abortlag (1974:595) [The Swedish Abortion Law (1974:595) (own translation)] para 1. 61 The Government of Netherlands, ‘What is the time limit for having an abortion?’
<https://www.government.nl/topics/abortion/question-and-answer/what-is-the-time-limit-for-having-an-abortion
> accessed 8 may 2020 (Dutch Government Website).
62 In Sweden, an abortion may be performed after approval by the Swedish National Board of Health and
Welfare (Socialstyrelsen) if the foetus is not viable or the pregnancy could cause harm to or endanger the life of the mother. See The Swedish Abortion Law (n 60) paras 3, 6. Within the Netherlands, a doctor may carry out an abortion due to serious medical reasons after observing the due care criteria. See Dutch Government Website (n 61).
63 Council of Europe, The Right to Life: A Guide to the Implementation of Article 2 of the European Convention
on Human Rights (Human Rights Handbooks; No. 8, 2006) 15 (Guide to Article 2).
64Oxford World Encyclopedia (1st edn, 2004) ‘death’. 65 Petersen (n 5) para B 11.
66 For a Swedish definition see Lag (1987:269) om Kriterier för Bestämmande av Människans Död [Act
(1987:269) on Criteria for Determining Human Death (own translation)] paras 1-2. For a Dutch definition see the Health Council of the Netherlands, ‘Brain Death Protocol’ (2006) 17-18.
67 ECHR (n 3) art 2(1). Note that the provision excludes the execution of death penalty if provided for by law. 68McCann v the UK (n 6) [153].
69Pretty v the UK (n 10) [38]. 70 ECHR (n 3) art 15(1)-(2). 71 ECHR (n 3) art 2(2).
In several cases brought before the ECtHR, the right to private life-provision has been
invoked in issues related to euthanasia. The right to private life, being present in Article 8 of 72 the ECHR, obliges state parties to abstain from arbitrary interferences in individuals’ personal spheres. Article 8 also requires Member States to uphold everyone’s right to private life by 73 preventing interventions of other individuals, which means that a positive obligation derives from the right. A state may, however, restrict the right if it is necessary in a democratic society due to a legitimate aim and if prescribed for by law. In order to limit a positive 74 75 obligation, Member States are required to examine the interest of the individual and whether essential values are at issue. State parties also have to consider the possible controversies between social reality and law, as well as the impact of the interference on the state itself. 76 When releasing their obligations under the right to private life, states enjoy a wide margin of appreciation. 77
2.4. Margin of Appreciation
The doctrine of the margin of appreciation has developed through the jurisprudence of the ECtHR and gives state parties discretion in how to realise and apply the rights protected in the ECHR. The doctrine aims to safeguard human rights on the national level because national authorities are regarded as more qualified than international courts to assess local needs. The extent of states’ appreciation depends on the right in question and the circumstances in each case. A wide discretion is left to states when balancing conflicting interests between private 78 parties and the public. Member States are also left a broad margin of appreciation when dealing with issues where a common practice within the Union is missing, as in matters relating to moral and ethical concerns. 79
In terms of moral questions, the ECtHR has stipulated that the requirements vary depending on time and place as a result of the rapid changes of opinions in the matter. State parties are thus in a better position to assess the specific content of these questions and the necessity of a limitation or a punishment proposed to meet them. The Court has especially declared that a 80 broad discretion is left to the Member States when managing questions that touch upon the nature of human life. However, Member States’ freedom is not unlimited, as it is in the 81 functioning of the Court to evaluate whether national decisions are compatible with the Convention in the light of the discretion left to the states. In order to examine whether a 82 national decision is consistent with states’ obligations under the ECHR, the Court has to apply
72 See for example Pretty v the UK (n 10); Haas v Switzerland (n 10).
73 ECHR (n 3) art 8. Note that the term ‘private life’ has a broad meaning and includes aspects of an individual’s
integrity, like identification, as well as the right to enter relationships with others. It further guarantees personal autonomy. See Pretty v the UK (n 10) [61].
74 ECHR (n 3) art 8(2). The provision stipulates that an interference may be legitimate if it is in the interest of
national security, public safety, or the financial well-being of the nation. It may also be appropriate for the avoidance of disorder or crime, or for safeguarding health, morals, rights, or the freedom of others.
75 ECHR (n 3) art 8(2).
76Hämäläinen v Finland [GC], App no 37359/09 (ECtHR, 16 July 2014) [66].
77Evans v the United Kingdom [GC], App no 6339/05 (ECtHR, 10 April 2007) [77] (Evans v the UK). 78 Council of Europe, Protocol No. 15 Amending the Convention on the Protection of Human Rights and
Fundamental Freedoms: Explanatory Report (2013) CETS 213, para 9 (Protocol 15).
79Evans v the UK (n 77) [77].
80Handyside v the United Kingdom, App no 5493/72 (ECtHR, 7 December 1976) [48].
81 Open Door and Dublin Well Woman v Ireland, App nos 14234/88 and 14235/88 (ECtHR, 29 October 1992)
[68] (Open Door v Ireland).
a proportionality test. The reason for the proportionality test is to examine whether there is a 83 proper relationship between a particular aim to be achieved and the measures used to reach that objective. There are four parts included in the test, where the first one requires that an act pursues a legitimate aim. Thereafter, the Court assesses if the performed action is efficient to achieve this specific aim (suitability) and whether it impaired the right as little as possible (necessity). Finally, the limitation of the enjoyment of the right is weighed against the interest of achieving the pursued aim. 84
83Open Door v Ireland (n 81) [68]-[69].
3. National Regulations of Euthanasia
In most countries around the world, euthanasia and assisted suicide are prohibited since they are recognised as murder-related practice. However, a few countries, such as the 85
Netherlands authorise euthanasia and assisted suicide performed by doctors. Other countries 86 outlaw euthanasia but decriminalise physician-assisted suicide. In turn, Sweden criminalise 87 active euthanasia and physician-assisted suicide but has not enacted rules concerning 88 assisted suicide. 89
3.1. Sweden
According to the Swedish Instrument of Government, everyone shall be protected from any physical violence by the public institutions. A person that deprives another’s life shall be 90 sentenced for murder for a minimum of ten years and a maximum of eighteen years, or to life imprisonment. If the act that led to the crime is considered to be less severe, imprisonment 91 for homicide may be imposed instead. A person aiding the crime can also be held 92
responsible, as well as a person that causes the death of another by an act of negligence. 93 94 The penalties apply regardless of the victim’s consent when the offence constitutes serious assaults or murder. Nevertheless, the penalty of the offence may be reduced if the act derives 95 from a strong human sympathy, as in the case of mercy killings. 96 97
In 1979, the Supreme Court of Sweden dealt with the question of euthanasia and assisted suicide for the first time when a woman named Berit Hedeby was accused of intentional deprivation of another person’s life. Ms. Hedeby had by request of the victim, a man almost fully paralysed due to sickness of multiple sclerosis, injected him with a high dose of insulin, and fed him with barbituric pills. The drugs were prescribed by a doctor that Ms. Hedeby had been in contact with on several occasions. The question for the Supreme Court to examine was whether the act of Ms. Hedeby constituted an illegal termination of life by request (active
euthanasia) or could be regarded as assisted suicide, which was not unlawful under Swedish
Criminal Law. During its investigation, the Supreme Court found that the distinction between
85 Lewis (n 40) 6-8. 86 SMER (n 8) 51-56.
87 For example Canada, Colombia and several states of America. Note that Switzerland criminalises euthanasia
and assisted suicide, but may reduce the penalty imposed if the actor acted in sympathy. SMER (n 8) 48-60.
88 SOU 1993:40, Fri- och Rättighetsfrågor: Delbetänkande [SOU 1993:40, Freedom and Rights Issues: An
Interim Report (own translation)] (1993) 200 (SOU 1993:40); SMER (n 8) 70.
89 Högsta Domstolen [The Supreme Court of Sweden], case no B 2553-19 (3 April 2020) [20]-[23] (Case
2553-19).
90 Kungörelse (1974:152) om beslutad ny regeringsform [The Instrument of Government (1974:152)] ch 2 art 6
(Swedish Instrument of Government). Note that this case concerns criminal liability when assisting an offence, and not euthanasia.
91 Swedish Criminal Code (n 20) ch 3 art 1.
92 ibid ch 3 art 2. The act of homicide lead to imprisonment for a minimum of six years and a maximum of ten
years.
93 ibid ch 23 art 4. 94 ibid ch 3 art 7.
95 Prop. 1993/94:130, Ändringar i Brottsbalken m.m.: (Ansvarsfrihetsgrunder m.m.) [Prop. 1993/94:130,
Amendments in the Swedish Criminal Code: (Discharges etc.) (own translation)] 37. There is a possibility to be exempted from criminal liability if the offence was made with the consent of the victim. However, this provision does not apply to serious crimes like murder, see Swedish Criminal Code (n 20) ch 24 ar. 7.
96 Swedish Criminal Code (n 20) ch 29 art 3(4).
euthanasia and assisted suicide depends on whether the accused acted independently in the act of the killing or not. The Supreme Court held that Ms. Hedeby could not evade from criminal liability since she generated the death by feeding and injecting the victim, even though he swallowed the pills by himself. As the victim had asked Ms. Hedeby for help and consented to the treatment, Ms. Hedeby was sentenced to imprisonment for homicide instead of murder. Additionally, the doctor who prescribed the medication to Ms. Hedeby was held responsible for aiding the crime and lost his medical license. 98
The reasoning in the lawsuit of Ms. Hedeby is precedent concerning the prohibition of euthanasia within Sweden, and no other position regarding assisted suicide has been 99
introduced. Suicide was decriminalised in Sweden in 1856. Accordingly, assisted suicide is 100 not regarded as a crime under Swedish law as long as the person who intends to commit suicide is capable of making a qualified and thoughtful decision. An assistant who provides an instrument that the victim uses to realise the suicide is not liable for the death if the victim meets the requirements for independence. That means that assisting in the death of a person 101 in a permanent vegetative state gives rise to a penalty, although the offence was committed in order to end the victim’s suffering. The penalty imposed may, however, be reduced since the killing can be regarded as an act of mercy. According to the Swedish Patient Act, doctors 102 and healthcare professionals are required to carry out their work in accordance with proven experiences and diligent healthcare. A suicide assisted by a healthcare professional may, 103 therefore, be considered contrary to his or her obligations under Swedish medical laws and eventually lead to the loss of his or her medical license or to a prosecution of misconduct. 104 An amendment of the Swedish Criminal Code concerning suicide has been presented by the Government. The proposed provision criminalises acts of extortion that conduce another individual to commit suicide, but the provision does not specify whether assisted suicide 105 will be covered by the amendment. 106
3.2. The Netherlands
In 2002, the Netherlands became the first country in the world to legalise euthanasia in a statute with the realisation of The Termination of Life by Request and Assisted Suicide (Review Procedures) Act (the Termination of Life Act). Nevertheless, euthanasia had been performed in the Country since the 1980s, and the Termination of Life Act rather became a codification of practice, which led to an amendment of the Dutch Criminal Code. During 107 the 1970s, euthanasia became a matter of debate within the Country due to the changing social values regarding abortions and also by the improvement in medical technology. From now on, doctors were able to prolong life even if recovery was unattainable, which gave rise
98 NJA 1979 p 802 (n 97) 813-817.
99 See for example SOU 1993:40 (n 88) 200.
100 SOU 2019:32, Straffrättsligt skydd för barn som bevittnar brott mellan närstående samt mot uppmaning och
annan psykisk påverkan att begå självmord [SOU 2019:32, Criminal Protection of Children who Witness Crime between Relatives and Protection against Acts of Extortion to Commit Suicide (own translation)] (2019) 223 (SOU 2019:32).
101 Case 2553-19 (n 89) [20]-[23].
102 Svea Hovrätt [Svea Court of Appeal], case no B 2447-03 (28 May 2013).
103 Patientsäkerhetslag (2010:659) [The Swedish Patient Safety Act (2010:659) (own translation)] ch 6 art 1. 104 SMER (n 8) 70-71.
105 SOU 2019:32 (n 100) 41-43. 106 ibid 236.
to ethical questions. In 1973, the question about euthanasia was examined for one of the 108 first times in the Postma case. The case concerned Ms. Postma, a doctor, who ended her 109 paralysed mother’s life with an injection of morphine by a proposal of her mother. When investigating the case, the District Court of Leeuwarden found that a death caused after being given medicine for pain relief may be accepted under specified conditions. However, Ms. 110 Postma was sentenced to one week imprisonment and one year of probation since the injection was instantly lethal and could not be seen as a reasonable means to reduce her mother’s pain. 111
Another case of importance regarding the legal development of euthanasia in the Netherlands is the Wertheim case from 1981. Within this case, the District Court of Rotterdam examined 112
if Ms. Wertheim had committed an act of murder or assisted in suicide. Ms. Wertheim
intentionally fed a sick woman with sedative-tablets and alcohol in order to help her die. As a result of the sick woman’s desire to die, the District Court found that Ms. Wertheim had acted in duress and could not be convicted for murder. However, assisted suicide was illegal during the time of the judgment, and Ms. Wertheim was sentenced to one year of probation. The 113 judgments of the Postma and the Wertheim cases led to the adoption of a national policy regarding prosecutions of euthanasia and assisted suicide. The national policy enumerated 114 several criteria that a prosecutor had to examine in order to make a decision about 115
prosecution. This action was the beginning of the legal development of euthanasia in Dutch law and amounted to the legitimation of euthanasia through the national case Schoonheim. 116 In the Schoonheim case, the Dutch Supreme Court ruled that a doctor who is facing a situation of conflicts of duties, like the duty to respect life and the obligation to alleviate pain, does not breach the Dutch Criminal Code by carrying out an act of euthanasia. The Supreme Court relied on the justification ground in Article 40 of the Dutch Criminal Code, which stipulates 117 that a person is innocent to an offence when committed under the duress of an irresistible force. In its judgment, the Supreme Court interpreted Article 40 to include the justification 118 of a choice between two conflicting duties and freed the doctor from criminal responsibility as he had terminated the life of the patient in order to end her suffering. 119
108 John Griffiths, Alex Bood and Heleen Weyers, Euthanasia and Law in the Netherlands (Amsterdam
University Press 1998) 46.
109Postma case, Rechtbank Leeuwarden (The District Court of Leeuwarden) 21 February 1973, reported in
Nederlandse Jurisprudentie no 183:558.
110 The conditions referred to were: that the patient is incurable ill, in the terminal phase of his illness and
experiences unbearable suffering. The patient should also have been expressed his wish to die and the treatment. Lastly, the treatment must be executed by a doctor. See Griffiths, Bood and Weyers (n 108) 52-53
111 Griffiths, Bood and Weyers (n 108) 52-53.
112Wertheim case, Rechtbank Rotterdam (The District Court of Rotterdam) 1 December 1981, reported in
Nederlandse Jurisprudentie no 63:223.
113 Griffiths, Bood and Weyers (n 108) 58-59. The sedative substance used in the killing was Vesparax-tablets. 114 ibid 61.
115 Prosecutors were required to investigate if there had been a voluntary and deliberate request of dying due to
unbearable suffering and an involvement of a doctor who had deliberated with another professional. See Griffiths, Weyers and Adams (n 25) 30.
116Schoonheim case, Hoge Raad (The Dutch Supreme Court) 27 November 1984, reported in Nederlandse
Jurisprudentie no 106:451; Griffiths, Weyers and Adams (n 25) 30-31.
117 Griffiths, Weyers and Adams (n 25) 77.
118 Wetboek van Strafrecht [Criminal Code of the Kingdom of Netherlands] (entered into force 3 March 1881,
amended 2012) art 40 (Dutch Criminal Code).
After the amendment of the Dutch Criminal Code, the termination of a person’s life by request is no longer prohibited if committed by a doctor who complies with the obligations of
due care set out in Article 2 of the Termination of Life Act. The same assertion applies to a 120 physician who intentionally assists in the suicide of another person. The Termination of 121 Life Act declares that the requirements of due care comprise that the medical doctor is convinced that the desire of the patient was voluntary and deliberated and that the patient’s suffering was unbearable with no prospects of improvement. Whether the suffering is 122 unbearable is defined by the individual concerned with regard to his perspectives and personality, rather than his medical condition. However, the patient’s alleged amount of suffering must be logical to a doctor and be consistent without the possibility to be cured. 123 Furthermore, the patient has to be convinced that there are no other plausible solutions, even though the physician has informed the patient about his prospects. Prior to the action of euthanasia, the responsible doctor is required to consult another doctor who is going to meet the patient and give his own opinion about the fulfilment of the due care criteria. During the execution, the doctor must be observant and act in accordance with medical care. Lastly, the 124 performing doctor has to notify the municipal pathologist that the patient did not die a ‘natural death’, as incorrect documentation of the cause of death is a criminal offence under Dutch law. As indicated, the act of euthanasia within the Netherlands can only be lawfully justified if committed by a medical doctor that complies with the due care criteria. Nevertheless, a 125 patient has no right to euthanasia under Dutch law, meaning that a medical doctor has no obligation to perform euthanasia or assist a suicide requested by a patient. A physician is thus required to ensure accessibility of euthanasia to patients’ asking for it, by inform his patient about the procedure and to collaborate in the referral of the patient to another doctor. 126
120 Dutch Criminal Code (n 118) art 293. 121 ibid art 294.
122 Termination of the Life Act (n 21) art 2(1). 123 Griffiths, Weyers and Adams (n 25) 89-91. 124 Termination of the Life Act (n 21) art 2(1). 125 Griffiths, Weyers and Adams (n 25) 82-83. 126 Griffiths, Bood and Weyers (n 108) 107-108.
4. The European Convention on Human Rights
As previously mentioned, several treaties safeguard the right to life and the right to private 127 life. No derogation from the right to life is allowed, but some restrictions may be legitimate.128
Apart from the death penalty, the ECHR enumerates a list of limitations that may be 129
justified if absolutely necessary. The right to private life within the ECHR may also be 130 restricted under certain conditions. However, none of the justification grounds refer to 131 euthanasia or assisted suicide. Could that indicate that euthanasia is unlawful under the 132 ECHR?
4.1. A Right to Die under Article 2?
In the case Pretty v the United Kingdom (Pretty v the UK), the question of whether assisted 133 suicide violates the right to life arose. The applicant, a woman with an unimpaired intellect who suffered from an incurable illness that made her completely paralysed, wished to commit suicide with assistance by her husband. Since assisted suicide was a criminal offence in national law, the applicant sought for immunity of her husband to help her die. The 134
applicant’s request was dismissed by the British Director of Public Prosecutions and later by national courts. As a result, the applicant submitted an application to the ECtHR, stating 135 136 that the right to life comprises the right to end one’s life. The applicant further argued that states’ obligations to safeguard individuals from deprivation of life do not include protection from themselves. The ECtHR held that the right to life is an essential provision, as it entails 137 the other rights and freedoms within the ECHR. It also found that Article 2 cannot be
interpreted to grant the right to die since a state’s obligation under the provision is to protect life. Consequently, an individual is not empowered to choose death rather than life. As a result, the ECtHR declared that the State had not violated the right to life by denying the applicant to commit suicide with the assistance of her husband. According to the ECtHR, 138 the right to life-provision imposes an obligation for states to form adequate procedures, ensuring that a decision to end one’s life is an independent choice by the individual
concerned. Accordingly, Article 2 of the Convention protects individuals from perpetrating suicide if the decision is made due to constraint or incomprehension. To promote its 139 reasoning in the judgment of Pretty v the UK, the ECtHR referred to a recommendation founded by the Parliamentary Assembly of the Council of Europe (the Parliamentary Assembly). 140
127 See ECHR (n 3) art 2; Charter of the Fundamental Rights of the European Union (n 3) art 2; Universal
Declaration on Human Rights (n 3) art 3; ICCPR (n 3) art 6; CRPD (n 3) art 10; CRC (n 3) art 6; ACHR (n 3) art 4; ACHPR (n 3) art 4.
128 See for example ECHR (n 3) art 8; ICCPR (n 3) art 17. 129 See ECHR (n 3) art 2(2) and art 15(2); ICCPR (n 3) art 6(2). 130 ECHR (n 3) art 2.
131 See text to (n 74); (n 75). 132 ECHR (n 3) art 2. 133Pretty v the UK (n 10). 134 ibid [3]-[8]. 135 ibid [10]-[14]. 136 ibid [1]. 137 ibid [35]. 138 ibid [37]-[42]. 139Haas v Switzerland (n 10) [58].
140Pretty v the UK (n 10) [37]-[42]. The ECtHR referred to The Parliamentary Assembly of the Council of
Europe, ‘Protection of the Human Rights and Dignity of the Terminally Ill and the Dying’ (25 June 1999) REC 1418 (Recommendation 1418).
In Recommendation 1418, the Parliamentary Assembly encouraged the Member States to respect and protect the dignity of incurably ill and dying individuals. Every state shall prevent acts that intentionally causes deaths of sick persons by ensuring that a wish to die may never authorise or justify an act of assisting in a death. Nevertheless, the Parliamentary Assembly 141 declared that each patient should be ensured to obtain adequate pain-relief, although it may hasten death. All states should also refrain from providing life-prolonging treatment against the will of the patient. It further emphasised that the rapid development of medical 142 technology could constitute threats to the rights of terminally ill patients. When providing a patient with life-sustaining treatment, doctors should evaluate the treatment with the suffering.
In the case Lambert and Others v France (Lambert v France), the ECtHR examined a
143 144
doctor’s decision to withdraw nutrition and reduce the hydration of a patient in a vegetative state. The patient’s parents, sister, and half-brother claimed that such a decision violated the 145 patient’s right to life, while the Government held that the treatment only sustained the life 146 of the patient artificially, which did not correspond to his expressed wishes. The decision of the doctor was made in conjunction with the patient’s eight siblings and his wife. The 147 ECtHR declared that the question before it concerned a withdrawal of medical treatment and not euthanasia, as national law did not allow intentional deprivation of life. However, 148 French doctors were authorised to discontinue medical treatment if nothing more could be done to change the condition of the patient. Accordingly, the Court found that French law 149 legalised decisions held by doctors similar to the one in the present case. The ECtHR also 150 identified that the national proceedings leading to the resolution had been examined
meticulously. The national judgment was thus consistent with states’ obligations under 151 Article 2 of the Convention. As a result, the Court declared that the French Government did not breach the right to life. Does the aforementioned case law imply that a legalisation of 152 euthanasia breaches states’ obligations under Article 2?
In Pretty v the UK, the applicant argued that an omission to recognise the right to die within Article 2 of the ECHR entails that the Member States allowing euthanasia violate their obligations to ensure the right to life. The ECtHR was cautious in its judgment and 153 154 stressed that it was not for the Court to assess whether a national law that enables euthanasia contravene with states’ obligation to protect the right to life. It further stated that conflicting 155 interests between personal freedom and the public must be resolved in light of the
circumstances in each case. Although a law in a Member State allowing euthanasia would be
141 Recommendation 1418 (n 140) para 9 (c) (2-3). 142 ibid paras 8-9.
143 The Parliamentary Assembly of the Council of Europe, ‘Rights of the Sick and Dying’ (28 January 1976)
REC 779, paras 1-6. 144Lambert v France (n 10). 145 ibid [10]-[15]. 146 ibid [80]. 147 ibid [20]-[22]. 148 ibid [141]. 149 ibid [120]-[121]. 150 ibid [160]. 151 ibid [168]. 152 ibid [181]. 153Pretty v the UK (n 10) [41]. 154 Guide to Article 2 (n 63) 20.
155 A similar standpoint has been taken in several judgments of the ECtHR. For instance, the ECtHR stated in the
case of McCann v the UK, that it is not for the Convention institutions to investigate the compatibility of the ECHR in national laws. See McCann v the UK (n 6) [153].
found compatible with the right to life, the applicant in the present case could not rely on that provision since the British Government does not believe that acts of euthanasia are in
conformity with Article 2 of the ECHR. A similar conclusion was reached in Lambert v 156
France when the Court held that complicated legal and ethical issues regarding the end of life
correspond to states’ margin of appreciation. Member States enjoy discretion in determining whether or not to permit cessation of medical treatment and the adjustment governing such withdrawal. Moreover, states are authorised to evaluate the protection of a patient’s right to life and his right to personal autonomy. Nevertheless, the ECtHR concluded that such an 157 appreciation is not limitless, as Member States are required to act in accordance with the principle of proportionality. 158
The Parliamentary Assembly has stressed a need for the Court to analyse if euthanasia is incompatible with the right to life, but the ECtHR has so far hesitated to clarify the legal 159 matter. However, a question regarding Member States’ obligations to protect individuals from euthanasia under Article 2 has been presented in a pending application before the Court. The application was submitted to the ECtHR by the son of a mother suffering from chronic depression. As a doctor terminated his mother’s life without the knowledge of her relatives, the applicant claimed that the State had failed to protect his mother’s life. Whether the 160 ECtHR will address the issue and eventually determine if euthanasia is contrary to the protection of the right to life, remains thus to be seen.
4.2. A Right to Die under Article 8?
The applicants’ in Pretty v the UK and in Lambert v France further relied on Article 8 of the ECHR. Ms. Pretty claimed that the Government’s refusal to grant her husband immunity, as 161 well as the prohibition of assisted suicide in national law, infringed her right to private life. 162 The ECtHR stressed that the term ‘private life’ has a wide distinction, which covers an
individual’s physical and physiological identity. It also encompasses the right of an individual to carry out harmful and dangerous activities affecting the person concerned. By referring 163 to a judgment of the Supreme Court of Canada, the ECtHR stipulated that national law 164 interfered with the applicant’s right to decide over her body. For that reason, the Court proceeded to investigate the grounds of justification. As the prohibition of assisted suicide was prescribed by law to protect life and the right of others, the necessity requirement was examined exclusively. The Court found that the safety and health of the public prevail over 165 the principle of personal autonomy, as a result of the apparent risk of abuse when an act of severe damage is involved. Moreover, it held that the rejection of immunity was proportionate since an exemption would be contrary to the Rule of Law. 166
156Pretty v the UK (n 10) [41].
157Lambert v France (n 10) [144]-[148].
158 ibid [148]. See also the referred judgment of A, B and C v Ireland [GC], App no 25579/05 (ECtHR, 16
December 2010) [238].
159 Doc. 9898 (n 33) ch II paras 7-8. 160Mortier v Belgium (n 10).
161 See Pretty v the UK (n 10) [58]-[59]; Lambert v France (n 10) [80]. 162Pretty v the UK (n 10) [58].
163 ibid [61]-[62].
164 See Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519 (Supreme Court of Canada). 165Pretty v the UK (n 10) [66]-[70].
Another investigation concerning the right to private life was conducted in Haas v
Switzerland. The applicant in that case, Mr. Haas, was suffering from a physiological 167 disease and demanded Swiss authorities to prescribe him a lethal substance in order to end his life. As Mr. Haas’s request was dismissed, he claimed that his right under Article 8 of the 168 ECHR had been violated since he was prevented from deciding the method and time of his own death. The ECtHR found that Article 8 comprises the right to determine when and how 169 to end one’s life, as long as the individual is capable of making an independent and thoughtful decision. However, the Court declared that there had been no violation of the right, due to 170 the need for preventive measures in countries that tolerate assisted suicide. A similar 171 complaint was raised by the applicant in Koch v Germany, where the applicant claimed that 172 the rejection of his wife’s request for a lethal substance of medication infringed their right to private life. The applicant’s wife was totally paralysed after an accident and had a strong 173 desire to die in her home with the help of her husband. The Cologne Administrative Court 174 dismissed the applicant’s application and stated that his right had not been violated, as the case concerned his wife. Moreover, the National Court held that a refusal of the substance was necessary due to the protection of health and life, as well as the protection of others. When 175 examining the issue, the ECtHR found that the applicant was affected by the decision of the National Court and thus that the judgment interfered with Article 8 of the ECHR. 176
Consequently, the ECtHR obliged national courts to review the merits of the applicant’s complaint and left the substance of the case unanswered. 177
As with lawfulness of euthanasia under the right to life, it seems that the ECtHR has left the question of legality under the right to private life unresolved. Although it is evident that national preventions of euthanasia inflicts with individuals’ freedom under Article 8, states’ 178 limitations of these rights are justified due to the risk of abuses. The Parliamentary 179
Assembly has raised concerns that legislators ignore questions related to euthanasia, despite the fact that euthanasia is widely executed in Member States that prohibit it. Without
clarifying issues related to the termination of life by request, potential abuses are impossible for states to control. In order to preserve the respect of the Rule of Law, the diversity 180 between law and practice needs to be harmonised. The Parliamentary Assembly 181
acknowledges, however, that it is impossible to institute a universal standard for all Member States to follow, due to their variety of moral, cultural, and religious values. 182
167Haas v Switzerland (n 10). 168 ibid [7].
169 ibid [32]. 170 ibid [51]. 171 ibid [57]-[61].
172Koch v Germany, App no 497/09 (ECtHR, 19 July 2012) (Koch v Germany).
173 ibid [27]. Note that the applicant’s wife terminated her life before the application was lodged to the ECtHR. 174 ibid [8]-[9]. 175 ibid [16]-[18]. 176 ibid [50]-[54]. 177 ibid [71]-[72]. 178 See text to (n 165); (n 169); (n 176). 179 See text to (n 166); (n 171). 180 Doc. 9898 (n 33) ch II para 62. 181 ibid 1. 182 Doc. 10455 (n 9) ch 8 paras 48-49.
5. The Reasoning Behind National Rules of Euthanasia
Although both Sweden and the Netherlands are Member States of the European Union and 183 state parties to the ECHR, their regulations of euthanasia differ. So, how are the national 184 185 regulations of euthanasia reasoned in these Member States?
5.1. The Lawfulness of Euthanasia Reasoned in the Netherlands
The debates in the Netherlands that eventually led to the adoption of the Termination of Life Act related to the principle of autonomy, the principle of beneficence, and the right to life. In support of the lawfulness of euthanasia, the Health Council of the Netherlands held that a modern legal system has to respect individuals’ self-determination. A state is not entitled to assure legal rights if an individual refuses such protection. Even though national courts cannot disregard a punishment of acts of murder established in the Dutch Criminal Code, an act of euthanasia executed by a doctor can be justified as a decision of conflicting duties. Another argument in favour of the decriminalisation of euthanasia was founded on the principle of beneficence, which imposes an obligation on doctors to relieve suffering. It is in the interest of the patient concerned to decide on his treatment, and an act contrary to that decision constitutes oppression. A duty to live is not incorporated in the right to life, and the 186 187 provision does not bind a state to restrict individuals’ autonomy. The opponents against the 188 legalisation of euthanasia have relied on the slippery-slope argument, dealing with the risk of routinely acting. The allowance of euthanasia would induce that morally unacceptable forms of euthanasia eventually will be legalised as time passes. As a response, the Health Council 189 of the Netherlands announced that a prohibition of euthanasia would entail an uncontrollable situation. Euthanasia has been performed before the Termination of Life Act entered into force, which indicates that national doctors are prepared to conduct acts of euthanasia behind closed doors. Without a control-mechanism, doctors may act inconsistently and arbitrarily. 190 The Netherlands has received several concluding observations directed to the lawfulness of euthanasia by the HRC. In 2001 the Committee raised concerns that the due care criteria in 191 the Termination of Life Act may fail to identify and prevent situations of abuse, like deaths followed from undue pressure conducted by third parties. It also held that a control
mechanism to avert termination of lives when the statutory criteria are not satisfied was missing. The Netherlands was thus demanded to examine the Termination of Law Act further
183 Europeiska Unionen, ‘EU:s 27 Medlemsländer’ [European Union, ‘Member States of the European Union’
(own translation)] <https://europa.eu/european-union/countries> accessed 20 May 2020.
184 The ECHR was ratified by Sweden in 1952 and by the Netherlands in 1954. Council of Europe, ‘Chart of
Signatures and Ratifications of Treaty 005: Convention for the Protection of Human Rights and Fundamental Freedoms’ <https://www.coe.int/en/web/conventions/full-list> accessed 20 May 2020.
185 See text to (n 98); (n 101); (n 104); (n 107); (n 120); (n 121); (n 125).
186 Griffiths, Bood and Weyers (n 108) 168-173. See further Dutch Criminal Code (n 118) art 293-294. 187 Griffiths, Bood and Weyers (n 108) 176.
188 ibid 174. 189 ibid 177-78. 190 ibid 181.
191 UN Human Rights Committee, ‘Concluding Observations of the Human Rights Committee: Netherlands’ (27
August 2001) UN Doc CCPR/CO/72/NET (CCPR/CO/72/NET); UN Human Rights Committee ‘Concluding Observations of the Human Rights Committee: Netherlands’ (25 August 2009) UN Doc CCPR/C/NLD/CO/4 (CCPR/C/NLD/CO/4). Note that the concluding observations are based on Article 6 of the ICCPR and not the Right to Life-provision in ECHR.
