In the case of Koch v. Germany,
The European Court of Human Rights (Former Fifth Section),
sitting as a Chamber composed of:
PeerLorenzen,
President,
RenateJaeger,
MarkVilliger,
IsabelleBerro-Lefèvre,
MirjanaLazarova Trajkovska,
ZdravkaKalaydjieva,
GannaYudkivska, judges,
and Claudia Westerdiek,
SectionRegistrar,
Having deliberated in private on 23November 2010 and 26
June2012,
Delivers the following judgment, which was adopted on the last‑mentioned
date:
PROCEDURE
The case originated in an application (no.
497/09) against the Federal Republic of Germany lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a German national, Mr Ulrich Koch (“the
applicant”), on 22 December 2008.
The applicant was represented by Mr D. Koch, a
lawyer practising in Braunschweig. The German Government (“the Government”)
were represented by their Agent, Ms A. Wittling-Vogel of the Federal Ministry
of Justice, and by Mr C. Walter, Professor of international law.
The applicant alleged that the refusal to grant
his late wife authorisation to acquire a lethal dose of drugs allowing her to
end her life violated both her and his own right to respect for private and
family life. He further complained about the domestic courts’ refusal to examine
the merits of his complaint.
A Chamber of the Fifth Section communicated the
application on 11 September 2009. A hearing took place in public in the HumanRightsBuilding, Strasbourg, on 23 November 2010 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Ms A. Wittling-Vogel, Ministerialdirigentin, Agent,
Mr C. Walter, Professor of international
law, Counsel,
Mr M. Indenhuck,
Ms V. Weissflog,
Mr V. Giesler, Advisers;
(b) for the applicant
Mr D. Koch, Counsel.
The applicant was also present at the hearing.
The Court heard addresses by Mr Koch and Mr Walter as well as
their replies to questions put to them.
By a decision of 31 May 2011 the Court declared
the application admissible.
The applicant and the Government each filed
further written observations on the merits (Rule 59 § 1). In addition, third
party comments were received from Dignitas, an association based in Switzerland
aimed at securing to its members a life and death in line with human dignity,
represented by Mr L. A. Minelli, and from Aktion
Lebensrecht für alle e. V. (AlfA), an association based in Germany
dedicated to the protection of the sanctity of human life from conception to
natural death, represented by the Alliance Defense Fund, the latter being
represented by Mr R. Kiska, counsel, all of whom had been given leave to
intervene in the written procedure (Article 36 § 2 of the Convention and Rule
44 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was
born in 1943 and lives in Braunschweig.
The applicant and his late wife B.K., born in
1950, had lived together since 1978 and married in 1980. From 2002 onwards, B.K.
had been suffering from total
sensorimotor quadriplegia after falling in front of her doorstep. She was
almost completely paralysed and needed artificial ventilation and constant care
and assistance from nursing staff. She further suffered from spasms. According
to the medical assessment, she had a life expectancy of at least fifteen more
years. She wished to end what was, in her view, an undignified life by
committing suicide with the applicant’s help. The couple contacted the Swiss
assisted-suicide organisation, Dignitas, for assistance.
In November 2004 B.K. requested the Federal
Institute for Drugs and Medical Devices (Bundesinstitut für Arzneimittel und
Medizinprodukte – “the Federal Institute”) to grant her authorisation to
obtain 15 grams of pentobarbital of sodium, a lethal dose of medication that
would enable her to commit suicide at her home in Braunschweig.
On 16 December 2004 the Federal Institute
refused to grant her that authorisation, relying on section 5(1) (6) of the
German Narcotics Act (Betäubungsmittelgesetz – see “Relevant domestic
law” below). It found that her wish to commit suicide was diametrically opposed
to the purpose of the Narcotics Act, which was aimed at securing the necessary
medical care for the individuals concerned. Authorisation could therefore only
be granted for life-supporting or life-sustaining purposes and not for the
purpose of helping a person to end his or her life.
On 14 January 2005 the applicant and his wife
lodged an administrative appeal with the Federal Institute.
In February 2005 the applicant and his wife, who
had to be transported lying on her back on a stretcher, travelled for
approximately ten hours over a distance of more than 700 kilometres from
Braunschweig to Zurich in Switzerland. On 12 February 2005 B.K. committed
suicide there, assisted by Dignitas.
On 3 March 2005 the Federal Institute confirmed
its earlier decision. In addition, it expressed doubts as to whether a
State-approved right of an individual to commit suicide could be derived from
Article 8. In any event, Article 8 could not be interpreted as imposing an
obligation on the State to facilitate the act of suicide with narcotic drugs by
granting authorisation to acquire a lethal dose of medication. A right to
commit suicide would be inconsistent with the higher-ranking principle
enshrined in Article 2 § 2 of the German Basic Law (see “Relevant domestic law”
below), which laid down the “comprehensive” obligation of the State to protect
life, inter alia by refusing to grant authorisation to obtain a lethal
dose of a drug for the purpose of committing suicide.
Finally, the Federal Institute “informed” the
applicant that he had no standing to lodge an administrative appeal as he
lacked the need for legal protection (Rechtsschutzbedürfnis). In
particular, the applicant could not improve his own position through an appeal,
as his legal position had not been the subject of the administrative
proceedings.
On 4 April 2005 the applicant lodged an action
for a declaration that the decision of the Federal Institute had been unlawful
(Fortsetzungsfeststellungsklage) and that it thus had a duty to grant
his wife the requested authorisation.
On 21 February 2006 the Cologne Administrative
Court (Verwaltungsgericht) declared the applicant’s action
inadmissible. It found that he lacked standing to lodge the action as he could
not claim to be the victim of a violation of his own rights. The Federal
Institute’s refusal to grant his wife authorisation to obtain a lethal dose of
medication did not interfere with his right to protection of his marriage and
family life as guaranteed by Article 6 § 1 of the BasicLaw (Grundgesetz –
see “Relevant domestic law” below). Any other interpretation would lead to the
assumption that each infringement of the rights of one spouse would
automatically also be an infringement of the rights of the other spouse. That
assumption would water down the separate legal personality of each spouse,
which was clearly not the purpose of Article 6 § 1 of the Basic Law.
Furthermore, the contested decisions did not interfere with his own right to
respect for family life under Article 8 of the Convention, as they did not
affect the way in which the applicant and his wife lived together.
Moreover, the applicant could not rely on his
wife’s rights, as the right to be granted authorisation to obtain the requested
dose of drugs was of an eminently personal and non-transferable nature. Even
assuming that there had been a violation of his late wife’s human dignity by
the Federal Institute’s refusal, according to the Federal Constitutional
Court’s case-law (see “Relevant domestic law and practice” below) the refusal
could not produce effects beyond her life as it did not contain elements of
disparagement capable of impairing the applicant’s wife’s image in the eyes of
posterity.
Finally, the court held that in any event the
refusal of the Federal Institute to grant the applicant’s wife the requested
authorisation had been lawful and in compliance with Article 8 of the
Convention. In particular, any interference with her right to respect for
private life was necessary in a democratic society for the protection of health
and life and thus also for the protection of the rights of others. Referring to
the Court’s judgment in the case of Pretty (see Pretty v. the United
Kingdom, no. 2346/02, § 74, ECHR 2002‑III), the court held that the
domestic authorities had a wide margin of appreciation to assess the danger and
risks of abuse. Therefore, the fact that the provisions of the Narcotics Act
permitted exceptions only for what was medically needed could not be considered
disproportionate.
On 22 June 2007 the North-Rhine Westphalia
Administrative Court of Appeal (Oberverwaltungsgericht) dismissed the
applicant’s request for leave to appeal. It found, in particular, that the
right to protection of marriage and family life under Article 6 § 1 of the
Basic Law and Article 8 § 1 of the Convention did not confer a right
to have the spouses’ marriage terminated by the suicide of one of them.
Moreover, it considered that the decisions of the Federal Institute had not
interfered with the applicant’s right to respect for private life within the
meaning of Article 8 § 1 of the Convention. Even if the right to
die had existed, its very personal character would not allow third persons to
infer from Article 6 § 1 of the Basic Law or Article 8 § 1 of the Convention a
right to facilitate another person’s suicide. Finally, the applicant could not
rely on Article 13 as he had no arguable claim to be the victim of a violation
of a right guaranteed under the Convention.
On 4 November 2008 the Federal Constitutional
Court (Bundesverfassungsgericht, no. 1 BvR 1832/07)declared a
constitutional complaint lodged by the applicant inadmissible as he could not
rely on a posthumous right of his wife to human dignity. It held that the
posthumous protection of human dignity extended only to violations of the
general right to respect, which was intrinsic to all human beings, and of the
moral, personal and social value which a person had acquired throughout his or
her own life. However, such violations were not at stake in respect of the
applicant’s wife. Furthermore, the applicant was not entitled to lodge a
constitutional complaint as legal successor to his deceased wife. In
particular, it was not possible to lodge a constitutional complaint to assert
another person’s human dignity or other non-transferable rights. A legal
successor could only introduce a constitutional complaint in cases, which
primarily involved pecuniary claims and where the complaint was aimed at
pursuing the successor’s own interests.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Basic Law
Article 6 § 1 of the Basic Law provides that
marriage and family enjoy the special protection of the State.
Under Article 2 § 2 of the Basic Law every person has the right
to life and physical integrity.
The Federal Constitutional Court has accepted the posthumous
protection of human dignity in cases where the image of the deceased person had
been impaired in the eyes of posterity by ostracism, defamation, mockery or
other forms of disparagement (see decision of 5 April 2001, no. 1 BvR 932/94).
B. The Narcotics Act
The Narcotics Act governs the control of
narcotic drugs. Three annexes to the Act enumerate the substances, which are
considered as drugs, including pentobarbital of sodium in Annex III.
According to section 4 (1) no. 3 (a) of the Narcotics Act it is
permissible to obtain the substances listed in Annex III if they are prescribed
by a medical practitioner. In all other cases, section
3(1)(1) of the Act provides that the cultivation, manufacture, import, export,
acquisition, trade and sale of drugs are
subject to authorisation from the Federal Institute for Drugs and
Medical Devices.
In accordance with section
5(1)(6) of the Act, no such authorisation can be granted if the nature and
purpose of the proposed use of the drug contravenes the purposes of the
Narcotics Act, namely, to secure the necessary medical care of the population,
to eliminate drug abuse and to prevent drug addiction.
Doctors may only prescribe
pentobarbital of sodium if the use thereof on or in the human body is justified
(section 13 (1)(1) of the Narcotics Act).
C. Provisions governing doctors’ duties at the end of
a patient’s life
1. Criminal responsibility
Section 216 of
the Criminal Code reads as follows:
Killing at the request of the victim; mercy killing
“(1) If a person is induced to
kill by the express and earnest request of the victim the penalty shall be
imprisonment from six months to five years.
(2) Attempts shall be punishable”
Committing suicide autonomously is exempt from punishment under
German criminal law. It follows that the act of assisting an autonomous suicide
does not fall within the ambit of section 216 of the Criminal Code and is
exempt from punishment. However, a person can be held criminally responsible
under the Narcotics Act for having provided a lethal drug to an individual
wishing to end his or her life.
According to the case-law of the Federal Court of Justice
(compare judgment of 13 September 1994, 1 StR 357/94) the discontinuation of a
life‑prolonging treatment of a terminally ill patient with the patient’s
consent does not engage criminal responsibility. This applies irrespective of
the fact that the interruption of the treatment has to be effected by actively
stopping and switching off the medical device (Federal Court of Justice,
judgment of 25 June 2010, 2 StR 454/09).
2. Professional rules for doctors
The professional codes of conduct are drawn up
by the medical associations under the supervision of the health authorities.
The codes are largely similar to the Model Professional Code for German
Doctors, section 16 of which provides as follows:
(Assisting the dying)
“(1) Doctors may – prioritising the will of the patient –
refrain from life-prolonging measures and limit their activities to the
mitigation of symptoms only if postponement of an inevitable death would merely
constitute an unacceptable prolongation of suffering for the dying person.
(2) Doctors may not actively curtail the life of the dying
person. They may not put their own interests, or the interests of third
parties, above the well-being of the patient.”
Contraventions against the Professional Code of Conduct are
sanctioned by disciplinary measures culminating in a withdrawal of the licence
to practise medicine.
In connection with the demand for doctor-assisted suicide, the
112th German Medical Assembly of May 2009 resolved that doctors
should provide assistance in and during the process of dying, but should not
help patients to die, as the involvement of a doctor in suicide would
contravene medical ethics.
III. COUNCIL OF EUROPE DOCUMENTS
25. Recommendation
no. 1418 (1999) of the Council of Europe, insofar as relevant, reads as
follows:
“9. The assembly therefore
recommends that the Committee of Ministers encourage the member states of the
Council of Europe to respect and protect the dignity of terminally ill and
dying persons in all respects:
a. by recognising and protecting a terminally ill or dying
person’s rights to comprehensive palliative care, while taking the necessary
measures:
(...)
b. by protecting the terminally ill or dying person’s right to
self-determination, while taking the necessary measures:
(...)
iii. to ensure that no terminally ill or dying person is
treated against his or her will while ensuring that he or she is neither
influenced nor pressured by another person. Furthermore, safeguards are to be
envisaged to ensure that their wishes are not formed under economic pressure;
iv. to ensure that a currently incapacitated terminally ill or
dying person’s advance directive or living will refusing special medical
treatments is observed...
v. to ensure that – notwithstanding the physician’s ultimate
responsibility – the expressed wishes of a terminally ill or dying person with
regards to particular forms of treatment are taken into account, provided they
do not violate human dignity;
vi. to ensure that in situations where an advance directive of
living will does not exist, the patient’s right to life is not infringed upon.
A catalogue of treatments which under no conditions may be withheld or
withdrawn is to be defined.
c. by upholding the prohibition against intentionally taking
the life of terminally ill or dying person’s while:
(i) recognising that the right to life, especially with regard
to a terminally ill or dying person, is guaranteed by the member states, in
accordance with Article 2 of the European Convention on Human Rights which
states that “no one shall be deprived of his life intentionally”;
(ii) recognising that a terminally ill or dying person’s wish
to die never constitutes any legal claim to die at the hand of another person;
(iii) recognising that a terminally ill or dying person’s wish
to die cannot of itself constitute a legal justification to carry out actions
intended to bring about death.”
IV. COMPARATIVE LAW
Comparative research in respect of forty-two
Council of Europe Member States shows that in thirty-six countries (Albania,
Andorra, Austria, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia,
Cyprus, Czech Republic, Denmark, Estonia, France, Georgia, Greece, Hungary,
Ireland, Latvia, Lithuania, the Former Yugoslav Republic of Macedonia, Malta,
Moldova, Monaco, Montenegro, Norway, Poland, Portugal, Romania, Russia, San
Marino, Spain, Serbia, Slovakia, Slovenia, Turkey, Ukraine and the United
Kingdom) any form of assistance to suicide is strictly prohibited and
criminalised by law. In Sweden and Estonia, assistance to suicide is not a
criminal offence; however, Estonian medical practitioners are not entitled to
prescribe a drug in order to facilitate suicide. Conversely, only four member
States (Switzerland, Belgium, the Netherlands and Luxembourg) allow medical
practitioners to prescribe lethal drugs, subject to specific safeguards
(compare Haas v. Switzerland, no. 31322/07, §§ 30-31 and 55, 20 January 2011).
THE LAW
I. ALLEGED VIOLATION OF THE APPLICANT’S RIGHTS
UNDER ARTICLE 8 OF THE CONVENTION
The applicant complained that the domestic
courts’ refusal to examine the merits of his complaint about the Federal
Institute’s refusal to authorise his wife to acquire a lethal dose of
pentobarbital of sodium had infringed his right to respect for private and
family life under Article 8 of the Convention, which provides:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.”
A. Whether there had been an interference with the
applicant’s rights under Article 8
1. Submissions by the Government
According to the Government, there had not been
any interference with the applicant’s rights under Article 8 of the Convention.
The Government considered that the applicant could not claim to be a victim of
a violation of his Convention rights within the meaning of Article 34 of the
Convention. They submitted that the applicant himself was not the subject of
the State measure complained of; neither could he qualify as an “indirect
victim”.
The Government did not dispute the fact that the
applicant had been emotionally affected by his wife’s suicide and the surrounding
circumstances. It was true that the Court had accepted that under very specific
circumstances serious violations of the Convention rights guaranteed in
Articles 2 and 3 might give rise to additional violations of close relatives in
view of the emotional distress inflicted upon them. However, there was no
indication that, in terms of degree and manner, the applicant’s suffering went
beyond the burden that was inevitable when a spouse faced obstacles in
organising his or her suicide.
In contrast to cases in which the victim was
prevented by State action from lodging an application, the applicant’s wife had
been in a position to lodge a complaint with the Court herself even after the
alleged violation of her Convention right. The fact that she had ended her life
of her own accord before lodging an application could not result in an
extension of the entitlement to lodge an application, having particular regard
to the fact that she had not availed herself of any possibility to accelerate
the proceedings, for example by requesting interim measures.
The Government further considered that the
applicant could not plead that a decision on the application was in the public
interest, because the Court had already clarified the relevant issues regarding
Article 8 of the Convention in its Pretty judgment (cited above), and
Article 37 § 1 of the Convention was not applicable to a case in which the
immediate victim of a measure taken by the State had died before lodging an
application with the Court.
According to the Government, Article 8 of the
Convention was not applicable in the instant case. They considered that the
instant case had to be distinguished from the Pretty case in that the
applicant’s wife had not sought protection from State interference with the
realisation of her wish to end her life, but had sought to oblige the State to
facilitate the acquisition of a specific drug so that she could take her life
in the manner she desired. Such a duty would be diametrically opposed to the
values of the Convention, and especially to the State’s duty under Article 2 to
protect life.
They pointed out that the Court, in the Pretty
case(cited above, § 67), was not prepared explicitly to spell out
that Article 8 encompassed a right of every person to decide on the end of his
or her life and to receive assistance if necessary. The same held true for the Haas
case (cited above, § 61),in which the Court refused to derive a positive
obligation from Article 8 to facilitate suicide in dignity. It thus remained
unclear whether B.K. had a substantial right to assistance in order to end her
life in dignity under Article 8.
Neither was there any interference with a
procedural right derived from Article 8. According to the Government, the Court
had accepted procedural guarantees relating to family life only in cases where
the existence of a substantive right under Article 8 was not in doubt. The
procedural guarantees inherent in Article 8 were devised to avert the risk that
the conduct of the proceedings as such predetermined their outcome. Conversely,
in the instant case, the outcome of the proceedings had not been predetermined
by the conduct of the proceedings, but by B.K.’s autonomous decision to end her
life. It would be fruitless to derive an additional procedural protection from
Article 8 if the substantive right to be protected had yet to be established.
This held all the more true since the general procedural guarantees of access
to court and fairness in the proceedings were sufficiently covered by Articles
6 § 1 and 13 of the Convention.
2. Submissions by the applicant
The applicant submitted that the domestic
decisions interfered with his own rights under Article 8 of the Convention.
Both the Federal Institute and the domestic courts had failed to appreciate
that he had a personal interest in the decision on his late wife’s request.
This personal interest derived from the wish that his wife’s decision to end
her life be respected. Furthermore, the distressing situation provoked by his
wife’s unfulfilled wish to commit suicide had immediate repercussions on his
own state of health.
The applicant pointed out that his wife had been
prevented from ending her life within the privacy of their family home, as
originally planned by the couple, and instead he had been forced to travel to Switzerland to enable his wife to commit suicide. The Court had previously considered
closest family members to be victims within the meaning of Article 34 of the
Convention because of their close relationship to the person mainly concerned,
if the interference had implications for the family member lodging the
application. In the case at hand, the applicant and his wife had found
themselves in a terrible situation, which also concerned the applicant as a
compassionate husband and devoted carer. As the relationship between husband
and wife was extremely close, any infringement directed against the rights and
liberties of one partner was directed against the rights that were shared by
both partners. It followed that each partner in the marriage was entitled to
defend the joint rights and liberties of both partners and that the applicant
was himself a victim of a violation of his Convention rights.
In the present case, denying the right of the
widower to complain about the conduct of the German authorities would mean that
B.K., in order not to lose her right to submit her complaint, would have been
forced to stay alive – with all the suffering this implied – until the entire
proceedings before the domestic courts, as well as before the Court, were
terminated. As B.K. had died shortly after lodging the administrative appeal in
January 2005, she had had no factual possibility of accelerating the court
proceedings by requesting interim measures.
Consequently, the questions raised in the present
application would never be answered unless a patient endured many years of
additional suffering. This would be in direct contradiction to the essence of
the Convention, which was the protection of human dignity, freedom and autonomy
and to the principle that the Convention was intended to guarantee not rights
that were theoretical or illusory, but rights that were practical and effective
(the applicant referred to Artico v. Italy, 13 May 1980, Series A no.
37).
According to
the applicant, Article 8 of the Convention encompassed the right to end one’s
own life. The right to life in the sense of Article 2 did not contain any
obligation to live until the “natural end”. B.K.’s decision to end her
biological life did not imply that she waived in any way her right to life. The
lethal dose of medication requested by her would have been necessary in order
to allow her to end her life by a painless and dignified death in her own
family home. Because of the refusal to authorise the purchase, she had been
forced to travel to Switzerland in order to end her life.
3. Submissions by the third parties
(a) Dignitas
. Dignitas submitted that a person’s
decision to determine the manner of ending his or her life was part of the
right to self-determination protected by Article 8 of the Convention. A ContractingState should only regulate the right of an individual who independently decided on
the time or methods of his or her demise in order to prevent hasty and
insufficiently considered actions. As far as the associations working in this
field already had preventive mechanisms in place, governmental measures were
not necessary in a democratic society.
(b) AlfA
Referring to the Court’s case law, in particular
the case of Sanles Sanles v. Spain ((dec.), no.
48335/99, ECHR 2000‑XI) AlfA submitted that the rights relied upon by the
applicant were of a non-transferable nature and could not be relied upon by a
third party. Under the case-law of the Court, transferability of victim status
could only occur where the alleged violation had prevented the direct victim
from asserting his claim (Bazorkina v. Russia, no. 69481/01, § 139,
27 July 2006) or where the negative consequences of an alleged violation
directly affected the heirs bringing a claim on behalf of the deceased (Ressegatti
v. Switzerland, no. 17671/02, § 25, 13 July 2006). However, none of
these principles applied in case an applicant, having complained about the
denial of authorisation to die by assisted suicide, subsequently died as a
result of assisted suicide carried out under a jurisdiction where such act was
not illegal.
Furthermore, neither the Convention nor any
other document governing the right to life had ever recognised the converse
right to die. The liberalisation of assisted suicide in the Netherlands had led to an alarming number of abuse cases, in which lethal injections were
given without the patient’s consent.
4. The Court’s assessment
The Court observes, at the outset, that it
qualifies the Government’s objection against the applicant’s victim status as a
question of whether there had been an interference with the applicant’s own
rights under Article 8 of the Convention. The
Court notes that the applicant submitted that his wife’s suffering and
the eventual circumstances of her death affected him in his capacity as a
compassionate husband and carer in a way which led to a violation of his own
rights under Article 8 of the Convention.
In this respect, the instant case has to be distinguished from cases brought
before the Court by the deceased person’s heir or relative solely on behalf of
the deceased. It follows that it does not have to be determined in the
present context whether the Convention right relied upon by the applicant was
capable of being transferred from the immediate victim to his or her legal
successor (compare in this respect Sanles Sanles, cited above).
In spite of
these differences, the Court considers that the criteria developed in its previous case-law for allowing a relative
or heir to bring an action before the Court on the deceased person’s behalf are
also of relevance for assessing the question whether a relative can claim a
violation of his own rights under Article 8 of the Convention. The Court will
thus proceed by examining the existence of close family ties (see (a) below,
compare, for example, Direkçi, v. Turkey (dec.), no. 47826/99, 3 October
2006); whether the applicant had a sufficient personal or legal interest in the
outcome of the proceedings (see (b), below, compare Bezzina Wettinger and
Othersv. Malta, no. 15091/06, § 66, 8 April 2008; Milionis and Others
v. Greece, no. 41898/04, §§ 23-26, 24 April 2008; Polanco Torres
and Movilla Polanco, cited above, § 30, 21 September 2010) and whether the
applicant had previously expressed an interest in the case (see (c), below,
compare Mitev v. Bulgaria (dec.), no. 42758/07, 29 June 2010).
(a) The
Court notes, at the outset, that the applicant and B.K. had been married for 25
years at the time the latter filed her request to be granted the permission to
acquire the lethal drug. There is no doubt that the applicant shared a very
close relationship with this late wife.
(b) The applicant has
further established that he had accompanied his wife throughout her suffering
and had finally accepted and supported her wish to end her life and travelled
with her to Switzerland in order to realise this wish.
(c) The applicant’s
personal commitment is further demonstrated by the fact that he lodged the
administrative appeal jointly with his wife and pursued the domestic
proceedings in his own name after her death. Under these exceptional
circumstances, the Court accepts that the applicant had a strong and persisting
interest in the adjudication of the merits of the original motion.
The Court
further observes that the instant case concerns fundamental questions evolving
around a patient’s wish to self‑determinedly end his or her life which are of general interest
transcending the person and the interest both of the applicant and of his late
wife. This is demonstrated by the fact that similar questions have repeatedly
been raised before the Court (compare Pretty and Sanles Sanles,
both cited above, and, most recently, Haas, cited above).
The Court
finally turns to the Government’s argument that there had been no need to grant
the applicant an own right to pursue his wife’s motion, as B.K. could have
awaited the outcome of the proceedings before the domestic courts, which she
could have accelerated by requesting interim measures. The Court observes, at
the outset, that the applicant and B.K. jointly lodged an administrative appeal
on 14 January 2005. On 12 February 2005, less than a month later, B.K.
committed suicide in Switzerland. The ensuing proceedings before the domestic
courts lasted until 4 November 2008, when the Federal Constitutional Court
declared the applicant’s constitutional complaint inadmissible. It follows that
the domestic proceedings were terminated some three years and nine months after
B.K.’s death.
With regard
to the Government’s submissions that B.K. could have requested interim measures
in order to expedite the proceedings, the Court observes that interim measures
are generally aimed at safeguarding a plaintiff’s legal position pending the
main proceedings. They are, as a matter of principle, not meant to foreclose
the outcome of the main proceedings. Having regard to the gravity of the claim
at issue and to the irreversible consequences any granting of an interim
injunction would necessarily have entailed, the Court is not convinced that
requesting an interim injunction in the instant case would have been suited to
accelerate the proceedings before the domestic courts.
Even
assuming that the domestic courts would have processed the proceedings more
speedily if B.K. had still been alive pending the proceedings, it is not for
the Court to decide whether B.K., having decided to end her life after a long
period of suffering, should have awaited the outcome of the main proceedings
before three court instances in order to secure a decision on the merits of her
claim.
Having
regard to the above considerations, in particular to the exceptionally close
relationship between the applicant and his late wife and his immediate
involvement in the realisation of her wish to end her life, the Court considers
that the applicant can claim to have been directly affected by the Federal
Institute’s refusal to grant authorisation to acquire a lethal dose of pentobarbital
of sodium.
The Court further reiterates that the notion of
“private life” within the meaning of Article 8 of the Convention is a broad
concept which does not lend itself to exhaustive definition (see, inter alia,
Pretty, cited above, § 61). In the Pretty judgment, the
Court established that the notion of personal autonomy is an important
principle underlying the guarantees of Article 8 of the Convention (see Pretty,
ibid.). Without in any way negating the principle of sanctity of life
protected under the Convention, the Court considered that, in an era of growing
medical sophistication combined with longer life expectancies, many people were
concerned that they should not be forced to linger on in old age or in states
of advanced physical or mental decrepitude which conflicted with strongly held
ideas of self and personal identity (Pretty, cited above, § 65). By way
of conclusion, the Court was “not prepared to exclude” that preventing the
applicant by law from exercising her choice to avoid what she considered would
be an undignified and distressing end to her life constituted an interference
with her right to respect for private life as guaranteed under Article 8 § 1 of
the Convention (Pretty, cited above, § 67).
In the case of Haas v. Switzerland, the
Court further developed this case-law by acknowledging that an individual’s
right to decide in which way and at which time his or her life should end,
provided that he or she was in a position freely to form her own will and to
act accordingly, was one of the aspects of the right to respect for private
life within the meaning of Article 8 of the Convention (see Haas, cited
above, § 51). Even assuming that the State was under an obligation to adopt
measures facilitating a dignified suicide, the Court considered, however, that
the Swiss authorities had not violated this obligation in the circumstances of
that specific case (Haas, cited above, § 61).
The Court finally considers that Article 8 of
the Convention may encompass a right to judicial review even in a case in which
the substantive right in question had yet to be established (compare Schneider
v. Germany, no. 17080/07, § 100, 15 September 2011).
Referring to the above considerations,the Court considers that the Federal Institute’s decision
to reject B.K.’s request and the administrative courts’ refusal to examine the
merits of the applicant’s motion interfered with the applicant’s right to
respect for his private life under Article 8 of the Convention.
B. Compliance with
Article 8 § 2 of the Convention
The Court
will thus proceed by examining whether the applicant’s own rights under Article
8 of the Convention were sufficiently safeguarded within the course of the
domestic proceedings.
1. Submissions by
the Government
The Government submitted that the applicant’s
claims regarding his own rights were fully heard by the German courts. The mere
fact that these courts rendered decisions of inadmissibility did not mean that
they did not deal with the substance of the applicant’s claim. The Cologne Administrative Court examined the alleged violation of the applicant’s rights under
Article 8 of the Convention and quoted the relevant case law of the Court. It followed that the applicant’s procedural
rights had been sufficiently safeguarded in the domestic proceedings.
Even
assuming that Article 8 of the Convention could impose the duty on a State to
facilitate the acquisition of a specific drug in order to facilitate suicide,
the Government considered that the Federal Institute’s refusal was justified
under paragraph 2 of Article 8. The decision had a legal basis in the relevant
provisions of the Narcotics Act and pursued the legitimate aim of protecting
health and the right to life. As regarded the question whether the decision was
necessary in a democratic society, the Government considered that they should
be granted a wide margin of appreciation, having particular regard to the fact
that the legal situation in the Member States varied considerably. They further
referred to the ethical dimension of the question of whether and to what extent
the State should facilitate or support suicide, which was demonstrated by the
fact that the German National Ethics Council (Nationaler Ethikrat) had
examined the questions at stake. The fundamental importance which the German
legal order attached to the protection of life against inflicted euthanasia
also had strong historical reasons which had led to a particularly forceful
legal concept of human dignity.
Moreover, B.K. had other possibilities at her
disposal to end her life painlessly. In particular, she could have demanded
that her doctor switch off the respiratory equipment while being treated with
palliative measures. Under the law as applied by the domestic courts at the
relevant time (see paragraph 23 above) her doctor would not have risked
criminal responsibility.
The Government further submitted that it was
primarily up to the Government to assess which risks granting unrestricted access
to drugs entailed. They considered that granting unrestricted access to a fatal
drug could create an appearance of normality, which could lead to a sense of
pressure on the part of the elderly and the seriously ill “not to become a
burden”. Summing up, the Government considered that the overriding interest of
protecting life justified the refusal to grant the applicant’s wife the
authorisation to obtain a lethal dose of pentobarbital of sodium.
2. Submissions by the applicant
The
applicant submitted that the domestic courts, by refusing to examine the merits
of his motion, had violated his procedural rights under Article 8 of the
Convention.
The
decision taken by the Federal Institute failed to pursue a legitimate aim and
was not necessary within the meaning of paragraph 2 of Article 8. The lethal
dose of medication requested by the applicant’s wife would have been necessary
in order to allow ending her life by a painless and dignified death in her own
family home. There were no other means available which would have allowed her
to end her life in her family home. In particular, the pertinent rules would
not have allowed her to end her life by interrupting life-supporting treatment
in a medically assisted way, as she was not terminally ill at the time she
decided to put an end to her life. The pertinent law in this area was and
remained unclear and only allowed the interruption of life-support for patients
suffering from a life-threatening illness.
The applicant accepted that a measure of control
was necessary in order to prevent abuse of lethal medication. However, suicide
should be allowed if it was justified on medical grounds. The applicant further
considered that assisted suicide was not incompatible with Christian values and
was more broadly accepted by society than the Government might assume. In this
respect, the applicant referred to several public statements issued by
individual persons and non-governmental organisations in Germany. The applicant further emphasised that he did not advocate the provision of
unrestricted access to lethal drugs, but merely considered that his wife should
have been authorised the requested dose in this individual case. There was no
indication that the decision of an adult and sane person to end his or her life
ran counter to the public interest or that the requested authorisation would
lead to an abuse of narcotic substances. In this respect, the applicant pointed
out that pentobarbital of sodium was widely prescribed as a means of assisted
suicide in Switzerland without this having any negative effects.
3. Submissions by the third parties
Dignitas considered that the requirements laid
down in the Artico judgment of the Court (cited above) could only be
fulfilled if pentobarbital of sodium was made available to persons wishing to
end their life and if at the same time experienced personnel ensured its
correct application. The third party finally submitted that the option of an
assisted suicide without having to face the heavy risk inherent in commonly
known suicide attempts was one of the best methods of suicide prevention.
AlfA considered that even a blanket ban on
assisted suicide was not a disproportionate restriction on the right to privacy
enshrined in Article 8 of the Convention as such law reflected the importance
of the right to life. The restrictions existing in Germany were necessary in
the overriding interest of protecting life until natural death. Doctors
overwhelmingly concurred that palliative care improvements rendered assisted
suicide unnecessary.
4. Assessment by
the Court
The Court will start its examination under the
procedural aspect of Article 8 of the Convention. The Court observes, at the
outset, that both the Administrative Court and the Administrative Court of
Appeal refused to examine the merits of the applicant’s motion on the ground
that he could neither rely on his own rights under domestic law and under
Article 8 of the Convention, nor did he have standing to pursue his late wife’s
claim after her death. While the Cologne Administrative Court, in an obiter
dictum, expressed the opinion that the Federal Institute’s refusal had been
lawful and in compliance with Article 8 of the Convention (see paragraph 18,
above), neither the Administrative Court of Appeal nor the Federal
Constitutional Court examined the merits of the original motion.
The Court concludes that the administrative
courts – notwithstanding an obiter dictum made by the first instance
court – refused to examine the merits of the claim originally brought before
the domestic authorities by B.K.
The Court further observes that the Government
did not submit that the refusal to examine the merits of this case served any
of the legitimate interests under paragraph 2 of Article 8. Neither can the
Court find that the interference with the applicant’s right served any of the
legitimate aims enumerated in that paragraph.
It follows that there has been a violation of
the applicant’s right under Article 8 to see the merits of his motion examined
by the courts.
With regard to the substantive aspect of the
complaint under Article 8, the Court reiterates that the object and
purpose underlying the Convention, as set out in Article 1, is that the rights
and freedoms should be secured by the ContractingState within its jurisdiction.
It is fundamental to the machinery of protection established by the Convention
that the national systems themselves provide redress for breaches of its
provisions, with the Court exercising a supervisory role subject to the
principle of subsidiarity (compare, among other authorities, Z. and Others v. the United Kingdom, no.
29392/95, § 103, ECHR 2001-V and A. and Others v. the United Kingdom [GC], no. 3455/05, § 147,
ECHR 2009).
The Court considers that this principle is even
more pertinent if the complaint concerns a question where the State enjoys a
significant margin of appreciation. Comparative research shows that the
majority of Member States do not allow any form of assistance to suicide
(compare paragraph 26, above and Haas, cited above, § 55). Only
four States examined allowed medical practitioners to prescribe a lethal drug
in order to enable a patient to end his or her life. It follows that the State
Parties to the Convention are far from reaching a consensus in this respect,
which points towards a considerable margin of appreciation enjoyed by the State
in this context (also compare Haas, cited above, § 55).
Having regard to the principle of subsidiarity,
the Court considers that it is primarily up to the domestic courts to examine
the merits of the applicant’s claim. The Court has found above that the
domestic authorities are under an obligation to examine the merits of the
applicant’s claim (see paragraph 66, above). Accordingly, the Court decides to
limit itself to examining the procedural aspect of Article 8 of the Convention
within the framework of the instant complaint.
It follows from the above that the domestic
courts’ refusal to examine the merits of the applicant’s motion violated the
applicant’s right to respect for his private life under Article 8 in of the
Convention.
II. ALLEGED VIOLATION OF THE APPLICANT’S WIFE’S
RIGHTS UNDER ARTICLE 8 OF THE CONVENTION
The Court recalls that, in its decision on the
admissibility of the instant complaint, it had joined to the merits the
question whether the applicant had the legal standing to complain about a
violation of his late wife’s Convention rights.
A. The Government’s submissions
Relying on the Court’s decision in the case of Sanles
Sanles (cited above), the Government submitted that the asserted right to
end one’s own life was of an eminently personal and non-transferable nature and
that the applicant could therefore not assert this right in the name of his
deceased wife. There was no reason to depart from this case law. The
applicant’s participation in the domestic proceedings could not turn an
eminently personal right, such as the alleged right to assistance in order to
end one’s life, into a right that could be enforced by others.
But even if the asserted right were to be
considered transferable, the applicant could not complain of a violation of his
deceased wife’s right under Article 8 of the Convention as there was no
indication that, in terms of degree and manner, the applicant’s suffering went
beyond the burden that was inevitable when a spouse faced obstacles in
organising his or her suicide.
B. The applicant’s submissions
The applicant considered that the instant case
fell to be distinguished from the Sanles Sanles case. In particular, he
shared a much closer relationship with the deceased person than the
sister-in-law who lodged the complaint in the above-mentioned case.
Furthermore, the applicant, in the instant case, could claim a violation both
of his deceased wife’s rights and of his own rights under Article 8.
It was decisive that the applicant and his wife
had jointly submitted an administrative appeal against the Federal Institute’s
decision. After his wife’s death, he had pursued the proceedings before the
courts. It followed that he had a legitimate interest to pursue this case
before the Court. The applicant further emphasised that there was a particular
general interest in a ruling on the issues raised by the instant case.
C. The Court’s assessment
The Court
reiterates that in the case of SanlesSanles (cited above) the applicant
was the sister-in law of Mr S., a deceased tetraplegic who had brought an
action in the Spanish courts requesting that his general practitioner be
authorised to prescribe him the medication necessary to relieve him of the
pain, anxiety and distress caused by his condition “without that act being
considered under the criminal law to be assisting to suicide or to be an
offence of any kind”. The Court considered that the right claimed by the
applicant under Article 8 of the Convention, even assuming that such right
existed, was of an eminently personal nature and belonged to the category of
non-transferable rights. Consequently, the applicant could not rely on this
right on behalf of Mr S. and the complaint was to be declared inadmissible as
being incompatible ratione personae with the provisions of the
Convention.
The Court
confirmed the principle that Article 8 was of a non‑transferrable nature and could thus not be
pursued by a close relative or other successor of the immediate victim in the
cases of Thevenon v. France ((dec.), no. 2476/02, 28 June 2006) and Mitev(cited
above).
The Court reiterates that “[while it] is not
formally bound to follow its previous judgments, it is in the interests of
legal certainty, foreseeability and equality before the law that it should not
depart, without good reason, from precedents laid down in previous cases.”
(see, among many other authorities, Christine Goodwin v. the United Kingdom
[GC], no. 28957/95, § 74, ECHR 2002‑VI, and Bayatyan v.Armenia [GC],
no. 23459/03, § 98, 7 July 2011, and the case law cited in those
judgments).
The Court doesnot find that it has been
presented with sufficient reasons to depart from its established case-law as
far as it was under consideration by the Court in the instant case. It follows
that the applicant does not have the legal standing to rely on his wife’s
rights under Article 8 of the Convention because of the non-transferable nature
of these rights. The Court recalls however that it has concluded above that
there has been a violation of the applicant’s own right to respect for his
private life in the instant case (see paragraph 72 above). It follows that the
applicant is not deprived of a protection under the Convention even if he is
not allowed to rely on his wife’s Convention rights.
By virtue of Article 35 § 4 in fine of the Convention, which empowers
it to “reject any application which it considers inadmissible ... at any stage
of the proceedings”, the Court concludes that the applicant’s complaint about a
violation of his late wife’s rights under Article 8 of the Convention is to be
rejected under Article 34 as being incompatible ratione personae with
the provisions of the Convention.
III. ALLEGED VIOLATION OF THE APPLICANT’S RIGHT
OF ACCESS TO A COURT
Relying on Article 13 in conjunction with
Article 8 of the Convention, the applicant complained that the German courts
had violated his right to an effective remedy when denying his right to
challenge the Federal Institute’s refusal to grant his wife the requested
authorisation.
In its decision on admissibility, the Court has
further considered that this complaint might fall to be examined under the
aspect of the applicant’s right of access to a court. However, in the light of
its above finding regarding Article 8 of the Convention (see paragraph 72
above), the Court considers that it is not necessary to examine whether there
has also been a violation of the applicant’s rights under Article 13 or under
Article 6 § 1 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
1. Non- pecuniary damage
The applicant claimed an overall sum of 5,000
euros (EUR) in respect of non-pecuniary damage for his wife’s pain and
additional suffering due to the unwanted extension of her life and EUR 2,500
for his own suffering.
The Government considered that it had not been
necessary for the applicant and his wife to subject themselves to additional
suffering as B.K. would have had other means at her disposal to end her life.
They furthermore pointed out that B.K.’s personal suffering ended at the time
of her death.
The Court has found above that the applicant
cannot rely on a violation of his late wife’s Convention rights. It follows
that he cannot claim any compensation for non-pecuniary damage on her behalf. Conversely,
the Court considers that the applicant must have sustained non-pecuniary damage
due to the domestic courts’ refusal to examine the merits of his motion and,
deciding on an equitable basis, awards the sum claimed for his own suffering in
full.
2. Pecuniary damage
The applicant, relying on documentary evidence,
further claimed an overall sum of EUR 5,847.27, comprising the lawyer’s fee for
the administrative appeal against the Federal Institute’s decision (EUR 197.20),
costs incurred for photocopying B.K.’s medical file (EUR 94.80) and the
expenses incurred by B.K.’s transport to Switzerland and by her assisted
suicide.
The Government submitted that there was no
causal connection between the alleged violation of a Convention right and the
damage claimed.
The Court considers, at the outset, that the
costs of the administrative appeal proceedings fall to be considered below
under the head of “costs and expenses”. With regard to the remainder of the
applicant’s claim, the Court observes that B.K. committed suicide in Switzerland before the German courts had given any decision on the motion. Accordingly, the
Court does not discern a link of causation between the domestic courts’ refusal
to examine the merits of B.K.’s claim and the expenses incurred by B.K.’s
transport to Switzerland and her suicide. Accordingly, the Court does not make
any award in this respect.
B. Costs and expenses
The applicant, who submitted documentary
evidence in support of his claim, sought a total of EUR 46,490.91 for costs and
expenses. This sum comprised EUR 6,539.05 for lawyers’ fees and expenses in the
proceedings before the national courts, as well as EUR 39,951.86 for lawyers’
fees and expenses before this Court. He submitted that he had agreed to pay his
lawyer EUR 300 per hour.
The Government expressed their doubts as to the
necessity and appropriateness of the amount claimed. They further pointed out
that the applicant had not submitted a written agreement on the hourly rate he
claimed.
According to the Court’s case law, an applicant
is entitled to the reimbursement of costs and expenses only as far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court considers it
reasonable to award the claim for costs and expenses in the domestic
proceedings in full. Including the costs of the administrative appeal
proceedings (EUR 197.20, see paragraphs 89 and 91 above), the Court awards the
applicant the amount of EUR 6,736.25 (including VAT) for the proceedings before
the domestic courts. Further taking into account that the applicant’s
complaints before the Court were only partially successful, the Court considers
it reasonable to award the sum of EUR 20,000 (including VAT) for the
proceedings before the Court.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the applicant’s complaint about a
violation of his wife’s Convention rights inadmissible;
2. Holds that there has been a violation of
Article 8 of the Convention in that the domestic courts refused to examine
the merits of the applicant’s motion;
3. Holds that it is not necessary to examine
whether there has been a violation of the applicant’s right of access to a
court under Article 6 § 1 of the Convention;
4. Holds
(a) that the respondent State is to pay the
applicant, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention, the following
amounts:
(i) EUR 2,500 (two thousand five hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 26,736.25 (twenty-six thousand seven
hundred thirty six euros and twenty five cents), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English and French, and notified in writing on 19
July 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
