In the case of Gross v. Switzerland,
The European Court of Human
Rights (Second Section), sitting as a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
András Sajó,
Işıl Karakaş,
Nebojša Vučinić,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 9 April 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
67810/10) against the Swiss Confederation lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Swiss national, Ms Alda Gross (“the applicant”),
on 10 November 2010.
The applicant was represented by Mr F. Th. Petermann,
a lawyer practising in St. Gallen. The Swiss Government (“the Government”) were
represented by their Agent, Mr F. Schürmann, Head of the Human Rights and Council
of Europe Section of the Federal Ministry of Justice.
The applicant alleged, in particular, that her
right to decide how and when to end her life had been breached.
On 5 January 2012 the application was
communicated to the Government. It was also decided to grant the case priority
(Rule 41 of the Rules of Court).
The parties replied in writing to each other’s
observations. In addition, third-party comments were received from: the Alliance
Defending Freedom (formerly known as the Alliance Defense Fund), an association
based in the United States of America dedicated to protecting the right to life
on a worldwide basis, represented by Mr P. Coleman; the European Centre for Law
and Justice, an association based in France specialising in questions of
bioethics and the defence of religious freedom, represented by Mr G. Puppinck;
Americans United for Life, an association based in the United States of America
dedicated to protecting the right to life from conception until natural death,
represented by Mr W. L. Saunders; and Dignitas, an association based in Switzerland aimed at ensuring that its members may receive end-of-life care and die in line with
human dignity, represented by Mr L. A. Minelli. All of the third party
interveners had been given leave by the President 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 1931 and lives in
Greifensee in Switzerland.
For many years, the applicant has expressed the
wish to end her life. She explained that she is becoming more and more frail as
time passes and is unwilling to continue suffering the decline of her physical
and mental faculties.
In 2005, following a failed suicide attempt, the
applicant received inpatient treatment for six months in a psychiatric
hospital. This treatment did not, however, alter her wish to die. As the
applicant was afraid of the possible consequences of another failed suicide
attempt, she decided that she wished to end her life by taking a lethal dose of
sodium pentobarbital. She contacted an assisted-death association, EXIT, for
support, which replied that it would be difficult to find a medical
practitioner who would be ready to provide her with a medical prescription for
the lethal drug.
On 20 October 2008 a psychiatrist, Dr T., having
examined the applicant on 13 and 19 August 2008, submitted an expert opinion on
the applicant’s capacity to form her own judgment (Urteilsfähigkeit). He
noted that the applicant had never been seriously ill and did not have to
undergo major surgery. However, in recent years, the applicant had noted a
decline in her physical and, to a certain degree, her mental faculties. Her
memory, her capacity to concentrate and her attention span were not what they
used to be. She had difficulty undertaking long walks and her range of
activities and her circle of friends had diminished. Accordingly, it had been
her strong desire for several years to be allowed to end her life, which she
felt was becoming more and more monotonous. She could hardly bear her physical
decline. Furthermore, she increasingly suffered from eczema and back aches and
every change in her environment terrified her. Her quality of life was
constantly decreasing, and she also suffered from the fact that she could not
talk openly about her wish to die with her friends.
On the basis of his psychiatric examination, Dr
T. observed that there was no doubt that the applicant was able to form her own
judgment. He further noted that her wish to die was reasoned and
well-considered, had persisted for several years and was not based on any
psychiatric illness. From a psychiatric/medical point of view, Dr T. did not
have any objection to the applicant being prescribed a lethal dose of sodium
pentobarbital. However, he refrained from issuing the necessary prescription
himself on the grounds that he did not want to confuse the roles of medical
expert and treating physician.
By letters of 5 November 2008, 1 December 2008
and 4 May 2009 the applicant’s representative submitted the applicant’s request
to be given a prescription for sodium pentobarbital to three further medical
practitioners, who all declined to issue the requested prescription. In a
letter dated 3 December 2008 medical practitioner Dr B. explained
that she felt prevented by the code of professional medical conduct (aus standesrechtlichen
Gründen) from issuing the requested prescription, given that the applicant
was not suffering from any illness. In a letter dated 11 May 2009 medical
practitioner Dr S. stated that she considered the applicant’s wish to die to be
understandable. She stated that she would be ready to examine the applicant and
to consider her request to issue the required prescription, provided that the
applicant’s counsel could guarantee that she would not risk any consequences
from the point of view of the code of professional medical conduct. When the
applicant’s counsel replied that he could not give such a guarantee, Dr S.
declined the request on the grounds that she did not wish to be drawn into
lengthy judicial proceedings.
On 16 December 2008 the applicant submitted a
request to the Health Board of the Canton of Zurich to be provided with 15
grams of sodium pentobarbital in order for her to commit suicide. She submitted
that she could not reasonably be expected to continue her search for a
physician who was ready to issue the required medical prescription.
On 29 April 2009 the Health Board rejected the
applicant’s request on the grounds that neither Article 8 of the European
Convention on Human Rights nor the Swiss Constitution obliged the State to
provide a person who wished to end his or her life with the means of suicide of
their choice.
On 29 May 2009 the applicant lodged an appeal
with the Administrative Court of the Canton of Zurich. On 22 October 2009, the Administrative Court rejected the appeal. The Administrative Court noted, at the outset,
that assisting someone to commit suicide was only subject to criminal liability
under Article 115 of the Swiss Criminal Code if it was carried out for selfish
motives. Accordingly, a physician who provided a patient suffering from a
terminal illness with the means to commit suicide was not subject to criminal
liability (the Administrative Court referred to the case-law of the Swiss
Federal Supreme Court, judgment of 3 November 2006, BGE 133 I 58,
summarised in Haas v. Switzerland, no. 31322/07, §§ 15-16,
ECHR 2011). The prerequisite of a medical prescription for obtaining a lethal
dose of sodium pentobarbital was in accordance with Article 8 of the Convention
and with the Swiss Constitution. It ensured that a medical practitioner had
examined all pertinent aspects of the matter and thus served the general
interest in public health and safety and - in connection with assisted suicide
- the prevention of crime and combating the risk of abuse. The medical
prescription served the aim of preventing premature decisions and guaranteed
that the intended action was medically justified. It further ensured that the
decision was based on a deliberate exercise of the free will of the person
concerned.
The Administrative Court observed that Dr T., in
his expert opinion, had stated that he did not have any objection from a
psychiatric/medical point of view to the applicant being prescribed a lethal
dose of sodium pentobarbital. However, Dr T. had merely examined whether the
applicant was able to form her own free will and whether her wish to die was
well thought out and persistent. He had not, however, considered whether the
applicant was suffering from any illness which would justify the assumption
that the end of her life was near. Neither had he examined whether the
applicant’s wish to die might be the manifestation of a disease which could be
medically treated. The wish to die taken on its own, even if it was well-considered,
was not sufficient to justify the issuing of a medical prescription. Accordingly,
the content of the case file did not demonstrate that the necessary
prerequisites for issuing a medical prescription had been fulfilled in the
instant case. There was therefore a need for further medical examination.
Under these circumstances, there was no
sufficient reason to dispense the applicant from the necessity of a thorough
medical examination and of a medical prescription.
The applicant lodged an appeal against the
Administrative Court’s judgment. She repeated her request to be provided with
15 grams of sodium pentobarbital, alternatively through a pharmacy. She further
asked the Federal Supreme Court to establish that the provision of a lethal
dose of this substance to a person who was able to form her own judgment and
was not suffering from a mental or physical illness did not constitute a
violation of a medical practitioner’s professional duties.
Relying, explicitly or in substance, on Articles
2, 3 and 8 of the Convention, she alleged that the impugned decisions had
rendered her right to decide by which means and at what point her life would
end illusory. She averred that the State was under an obligation to provide the
necessary means allowing her to exercise this right in a concrete and effective
way.
On 12 April 2010 the Federal Supreme Court
rejected the applicant’s appeal. Relying on its own case-law and on the Court’s
judgment in the case of Pretty v. the United Kingdom (no. 2346/02, ECHR
2002-III), the Federal Supreme Court considered, in particular, that
there was no (positive) obligation enjoining the State to guarantee an
individual’s access to a particularly dangerous substance in order to allow him
or her to die in a painless way and without the risk of failure. The Federal
Supreme Court observed that proceedings in the Haas case were pending
before the European Court of Human Rights. Accordingly, it was up to that Court
to examine whether the Federal Supreme Court had correctly interpreted Article
8 of the Convention in this context. Pending these proceedings, the Federal
Supreme Court did not see any reason to revise its reasoning in the Haas judgment.
The Federal Supreme Court furthermore held that
the requirement of a medical prescription pursued the legitimate aims of
protecting the individual concerned from making a hasty decision and of
preventing abuse. The restriction on access to sodium pentobarbital served the
protection of public health and safety. In view of the ethical questions
relating to medically assisted suicide, it was primarily up to the
democratically elected legislature to decide if and under which circumstances
the purchase, transport and storage of sodium pentobarbital should be allowed.
The Federal Supreme Court observed in this context that a reform of the law on
assisted suicide was currently the subject of political debate.
The Federal Supreme Court further observed that
the applicant undisputedly did not fulfil the prerequisites laid down in the
medical ethics guidelines on the care of patients at the end of life adopted by
the Swiss Academy of Medical Sciences (“SAMS”, see paragraphs 32-33 below), as
she was not suffering from a terminal illness, but had expressed her wish to
die because of her advanced age and increasing frailty. Even though the Federal
Supreme Court had considered in its previously cited decision that the issuing
of a medical prescription for sodium pentobarbital to a person suffering from
an incurable, persistent and serious psychological illness did not necessarily
amount to a violation of a doctor’s professional duties, this exception had to
be handled with “utmost restraint” and did not enjoin the medical profession or
the State to provide the applicant with the requested dose of sodium
pentobarbital to put an end to her life. The Federal Supreme Court further
noted that the issuing of the requested substance required a thorough medical
examination and, with respect to the persistence of the wish to die, long-term
medical supervision by a specialist practitioner who was ready to issue the
necessary prescription. This requirement could n
ot be circumvented by the applicant’s request for an exemption
from the necessity of obtaining a medical prescription.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Domestic law
The relevant provisions of the Swiss Criminal
Code are worded as follows:
Article
114 - Homicide at the victim’s request
“Any person who for commendable motives, and in particular out
of compassion, causes the death of a person at that person’s own genuine and
insistent request shall be liable to a custodial sentence not exceeding three
years or to a monetary penalty.”
Article 115 - Inciting
and assisting suicide
“Any person who for selfish motives incites or assists another
to commit or attempt to commit suicide shall, if that other person thereafter
commits or attempts to commit suicide, be liable to a custodial sentence not
exceeding five years or to a monetary penalty.”
The Federal Law on Drugs (“the Drugs Act”) of 3
October 1951 regulates the use and supervision of drugs. The Federal Law on
Medicinal Products and Medical Devices (“the Therapeutic Products Act”) of 15 December 2000
applies to drugs covered by the Drugs Act where they are used as therapeutic
products (section 2, subsection (1)(B) of the Therapeutic Products Act). The
Drugs Act remains applicable, however, if the Therapeutic Products Act does not
regulate a specific matter or if its regulation is less extensive (section 2, subsection
(1) bis of the Drugs Act).
Under section 1 of the Drugs Act and the Order
of 12 December 1996 on Drugs and Psychotropic Substances issued by
the Swiss Institute for Therapeutic Products, sodium pentobarbital is
considered to be a drug within the meaning of the Drugs Act. In addition, it
appears from the Federal Court’s judgment of 3 November 2006 that sodium pentobarbital
is categorised as a category B medicinal product within the meaning of the
Therapeutic Products Act.
Section 9 of the Drugs Act lists the members of the
medical professions who may obtain drugs without authorisation. Section 9(1) is
worded as follows:
“Doctors, dentists, veterinary surgeons and those managing a
public or hospital pharmacy who practise as self-employed professionals by
virtue of a decision of the cantonal authorities adopted pursuant to the
Federal Law of 19 December 1877 on the practice of the professions of doctor,
pharmacist and veterinary surgeon in the Swiss Confederation may obtain, hold,
use and issue drugs without authorisation, within the limits justified by their
practice, in conformity with the requirements of their profession. This shall
be without prejudice to cantonal provisions regulating direct dispensing by
doctors and veterinary surgeons...”
Pursuant to section 10(1) of the same Act, only
doctors and veterinary surgeons are authorised to prescribe drugs. Doctors and
veterinary surgeons may write such prescriptions only in so far as this is
medically acceptable and only for patients whom they have examined personally (section
11(1) of the same Act, and regulation 43(1) of the Order on Drugs of 29 May 1996).
Sections 24 and 26 of the Therapeutic Products
Act are worded as follows:
Section 24 - Dispensing
of medicinal products subject to prescription
(1) The following persons shall be entitled to dispense
prescription-only medicinal products:
(a) pharmacists, on presentation of a doctor’s prescription
and, in justified exceptional cases, without a doctor’s prescription;
(b) all other medical professionals in accordance with the
provisions on dispensing physicians;
(c) all duly trained professionals, under the supervision of a
person specified in subsections (1) (a) and (b).
...”
Section
26 - Principle of prescription and dispensing
“(1) The recognised rules of
pharmaceutical and medical sciences must be respected when prescribing and
dispensing medicinal products.
(2) A medicinal product may only be prescribed if the
state of health of the consumer or patient is known.”
Chapter 8 of the same Act contains criminal-law
provisions targeting persons who intentionally endanger the health of another
person in relation to an activity covered by the Act. Section 86 of the Act
provides:
Section
86 - Offences
“"(1) Unless an offence carrying a more severe penalty
under the Criminal Code or the Narcotics Act of 3 October 1951 has been
committed, any person who wilfully endangers human health by:
(a) neglecting his duty to exercise diligence in dealing with
therapeutic products;
(b) manufacturing, placing on the market, prescribing,
importing or exporting, or trading in a foreign country, medicinal products
without authorisation or licence or while infringing other provisions of this
Act;
(c) dispensing medicinal products without authorisation;
...
shall be liable to a term of imprisonment or to a fine not
exceeding 200,000 francs.
(2) If the person concerned acts in his professional capacity,
he or she shall be liable to a term of imprisonment not exceeding five years
and to a fine not exceeding 500,000 francs.
(3) If the person concerned acts through negligence, he or she
shall be liable to a term of imprisonment not exceeding six months or a fine of
up to 100,000 francs.“
B. Legislative actions
On 28 October 2009, the Swiss Federal Council
submitted two alternative legal projects aimed at regulating organised assisted
suicide. It proposed two options that would change Swiss criminal law: the
determination in the Criminal Code of clear duties of care for employees of
assisted suicide organisations, or a complete ban on organised assisted suicide
per se (see the press release issued by the Federal Department of
Justice and Police on 28 October 2009). The consultation of the cantons,
political parties and other interested parties (Vernehmlassung)
demonstrated that no consensus on the issue could be reached. While a majority
of the consulted parties considered that the federal law should define specific
duties of care within the context of assisted suicide, they could not agree on
the concrete implementation. On 29 June 2011 the Federal Council decided
to refrain from including specific regulations on organised assisted suicide in
criminal law, while expressing its intent on fostering suicide prevention and
palliative care in order to reduce the number of suicides (see the press
release issued by the Swiss Federal Council on 29 June 2011).
C. The case-law of the Federal Supreme Court
On 3 November 2006 the Federal Supreme Court was
called upon to examine a request to be granted a lethal dose of sodium
pentobarbital lodged by a plaintiff who had been suffering from a serious
bipolar affective disorder and considered that as a result, he could no longer
live in a dignified manner. Since that substance was only available on
prescription, he approached several psychiatrists to obtain it, but was
unsuccessful. In its judgment (published in the Official Collection of
Decisions of the Federal Supreme Court, BGE 133 I 58, summarised in Haas,
cited above, §§ 15-16), the Federal Supreme Court considered that sodium
pentobarbital could not be issued without a medical prescription. It noted, in
particular, that section 24(1)(a) of the Therapeutic Products Act had to
be interpreted narrowly and did not allow for an exemption in the event that no
doctor could be found who was ready to issue a prescription. The Federal
Supreme Court further considered that the following prerequisites had to be met
before a doctor could issue a medical prescription for sodium pentobarbital: a
thorough and considered examination; a medical indication; and, with regard to
the genuineness of the wish to die and capacity for discernment in this
connection, monitoring over a certain period by a medical specialist. Following
that judgment, in May 2007 the plaintiff wrote to 170
psychiatrists setting out his case and asking each of them whether they would
agree to produce a psychiatric report on him with a view to issuing a
prescription for sodium pentobarbital. None of the doctors responded positively
to his request.
On 16 July 2010 the Federal Supreme Court
examined the validity of an agreement concluded by the General Public
Prosecutor of the canton of Zurich and the assisted-death organisation EXIT
aimed at lying down specific rules to be observed in assisted-death cases. The
Federal Supreme Court considered that the agreement was invalid as it lacked a
legal basis and was not in accordance with the domestic law (BGE 136 II 415).
D. Medical ethics guidelines
In its judgment given on 3 November 2006, the Federal
Supreme Court referred to the medical ethics guidelines on the care of patients
at the end of life which were adopted on 25 November 2005 by the Swiss Academy
of Medical Sciences (SAMS), an association of the five medical faculties and
the two veterinary faculties in Switzerland. According to the case-law of the Federal
Supreme Court (judgment of 26 August 2010, BGE 136 IV 97), the guidelines
issued by SAMS do not have the formal quality of law. As they prescribe a
number of precautionary measures, they can be classed as a code of conduct -
the value of which is generally accepted by the practitioners bound by it.
Furthermore, these guidelines may serve to define the duty of diligence in
criminal proceedings or in proceedings concerning civil liability.
The scope of application of these guidelines is
defined as follows:
1.
Scope of application
“(1) These guidelines concern the care of patients at the end
of life. These are patients whose doctor has arrived at the conclusion, on the
basis of clinical signs, that a process has started which, as experience
indicates, will lead to death within a matter of days or a few weeks.”
Section 4 of these guidelines reads as follows:
4.
The limits of medical intervention
“Respect for the patient’s wishes reaches its limit if the
patient asks for measures to be taken that are ineffective or to no purpose, or
that are not compatible with the personal moral conscience of the doctor, the
rules of medical practice or applicable law.”
4.1.
Assisted suicide
“According to Article 115 of the Penal Code, helping someone to
commit suicide is not a punishable offence when it is done for altruistic reasons.
This applies to everyone.
With patients at the end of life, the task of the doctor is to
alleviate symptoms and to support the patient. It is not his task to directly
offer assistance in suicide, rather he is obliged to alleviate any suffering
underlying the patient’s wish to commit suicide. However, in the final phase of
life, when the situation becomes intolerable for the patient, he or she may ask
for help in committing suicide and may persist in this wish.
In this borderline situation a very difficult conflict of
interests can arise for the doctor. On the one hand assisted suicide is not
part of a doctor’s task, because this contradicts the aims of medicine. On the
other hand, consideration of the patient’s wishes is fundamental for the
doctor-patient relationship. This dilemma requires a personal decision of
conscience on the part of the doctor. A decision to provide assistance to
commit suicide must be respected as [a decision of that sort]. In any case, the
doctor has the right to refuse help in committing suicide. If he decides to
assist a person to commit suicide, it is his responsibility to check the
following preconditions:
- The patient’s disease justifies the assumption that he is
approaching the end of life.
- Alternative possibilities for providing assistance have been
discussed and, if desired, have been implemented.
- The patient is capable of making the decision, his wish has
been well thought out, without external pressure, and he persists in this wish.
This has been checked by a third party, who is not necessarily a doctor.
The final action in the process leading to death must always be
taken by the patient himself.”
4.2. Killing on
request
“Even if requested seriously and insistently, the killing of a
patient must be refused by the doctor. According to Article 114 of the Penal
Code, killing on request is a criminal offence.”
III. COMPARATIVE LAW
The research conducted by the Court in the
context of the Haas case (cited above, §§ 29-31) indicates that
certain member States of the Council of Europe have specific regulations
covering access to substances liable to facilitate suicide.
In Belgium, for example, the Law of 28 May 2002
defines euthanasia as an act carried out by a third party which intentionally
ends an individual’s life at that individual’s request (section 2 of the Law). A
pharmacist who issues a “lethal substance” does not commit an offence where
this is done on the basis of a prescription in which the doctor has explicitly
stated that he or she is acting in accordance with the law. The implementing
regulations establish the criteria of prudence and the conditions which must be
met for the prescription and issuing of such substances; the necessary measures
must also be taken to ensure the availability of the lethal substances.
In Luxembourg, the Law of 16 March 2009 decriminalised
euthanasia and assisted suicide. Under that Law, access to a substance enabling
suicide is only lawful for a doctor if he or she is playing an integral part in
the process of euthanasia or assisted suicide.
IV. INTERNATIONAL LAW
Sodium pentobarbital is listed in Schedule III of
the Convention on Psychotropic Substances of 21 February 1971, to which
the Swiss Confederation acceded on 22 April 1994. Article 9 of that Convention
reads as follows:
Article
9: Prescriptions
“1. The Parties shall require that substances in
Schedules II, III and IV be supplied or dispensed for use by individuals
pursuant to medical prescription only, except when individuals may lawfully
obtain, use, dispense or administer such substances in the duly authorized
exercise of therapeutic or scientific functions.
2. The Parties shall take measures to ensure that
prescriptions for substances in Schedules II, III and IV are issued in
accordance with sound medical practice and subject to such regulation,
particularly as to the number of times they may be refilled and the duration of
their validity, as will protect the public health and welfare.
3. Notwithstanding paragraph 1, a Party may, if
in its opinion local circumstances so require and under such conditions,
including record-keeping, as it may prescribe, authorize licensed pharmacists
or other licensed retail distributors designated by the authorities responsible
for public health in its country or part thereof to supply, at their discretion
and without prescription, for use for medical purposes by individuals in
exceptional cases, small quantities, within limits to be defined by the
Parties, of substances in Schedules III and IV.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant complained that the Swiss
authorities, by depriving her of the possibility of obtaining a lethal dose of
sodium pentobarbital, had violated her right to decide by what means and at
what point her life would end. She relied on Article 8 of the Convention, which
reads as follows:
“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.”
The Government contested that argument and
invited the Court to declare the present complaint inadmissible as being
manifestly ill-founded.
A. Admissibility
The Court considers that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The applicant’s submissions
The applicant submitted that the fact that the
required dose of sodium pentobarbital was only available on medical
prescription, combined with the fact that medical practitioners refused to
issue such a prescription to a person, who, like herself, was not suffering
from any terminal illness, had rendered her right to decide by what means and
at what point her life would end theoretical and illusory. She considered that
ingesting sodium pentobarbital was the only dignified, certain and pain-free
method of committing suicide. She further pointed out that she had, through her
counsel, unsuccessfully sought authorisation to obtain a lethal dose of cyanide
or a firearm in order to end her life.
The applicant further considered that the State
was under a general obligation to provide the means by which its citizens might
make use of their Convention Rights. She pointed out that she was not in a
position to fulfil the Federal Supreme Court’s requirement of “long-term
supervision by a medical practitioner”, as Swiss psychiatrists, under pressure
from their professional governing body, refused to take part in treatments
which had the ultimate aim of the patient’s death or which, at the least,
accepted the possibility of this outcome.
The Federal Supreme Court had, furthermore,
refused to consider the applicant’s argument that both domestic law and the
international Convention on Psychotropic Substances allowed for an exemption
from the requirement of a medical prescription.
The Supreme Court, had, furthermore, failed to
establish a concrete risk of abuse. No concrete abuse case had ever been
alleged in the course of the public debate on assisted suicide. If the required
substance was given to the applicant via an assisted-suicide association, any
possible risk to the health of others could be ruled out. On the other hand,
having regard to the statistics on failed suicide attempts in Switzerland, the
applicant herself ran a much higher risk of her own health being damaged by a
failed suicide attempt.
The Supreme Court’s judgment had been
self-contradictory, in that it had relied on the fact that the applicant did
not fulfil the requirements of the medical ethics guidelines on the care of
patients at the end of life. By relying on these guidelines, the Supreme Court
had presupposed that the applicant’s suicide had to be justified from a medical
point of view. This point of view was incompatible with the assumption that any
person who was able to form his or her judgment had the right to decide on the
time and manner of their own death. Accordingly, there was no need for any
medical justification. The applicant further pointed out that the medical
ethics guidelines did not have the formal quality of law and had not been
adopted through the democratic process. Furthermore, they had not been
applicable in the instant case, because they presupposed that the end of a
patient’s life was near.
2. The Government’s submissions
Relying on the Court’s case-law (the Government
referred to the case of Pretty, cited above, §§ 68 et seq.), the
Government submitted that the States were entitled to regulate activities which
were detrimental to the life and safety of other individuals and that it was
primarily up to the State to assess the risk and the likely consequences of
possible abuse in the context of assisted suicide. The Court had further found
that clear risks of abuse existed, notwithstanding the arguments as to the
possibility of safeguards and protective procedures; and that even a blanket
ban on assisted suicide was not disproportionate. The Government further relied
on the principles developed by the Court in the Haas judgment (cited
above).
With regard to the question whether there had
been an interference with the applicant’s Article 8 rights or whether there was
a positive obligation incumbent on the State, the Government did not see a
reason to depart from the approach adopted in this respect by the Court in the Haas
case. They considered, in any event, that any interference with the
applicant’s rights under Article 8 had been justified under paragraph 2 of that
same Article.
The authorities’ refusal to provide the
applicant with a lethal dose of sodium pentobarbital had been in accordance
with the law. The restrictions imposed on access to that drug served the aims
of protecting life, health and public safety and of preventing crime.
According to the Government, the applicant had
made only very limited efforts to obtain a prescription for sodium
pentobarbital from a medical practitioner. The expert opinion prepared by Dr T.
had been based on only two interviews of approximately one-and-a-half hours
each and thus had not complied with the prerequisites developed in the
case-law, which required a thorough examination of the applicant’s situation,
based on medical supervision of a certain duration. Subsequently, the applicant
had contacted three medical practitioners. In the absence of any further steps
being taken, the applicant had failed to demonstrate that it had been
impossible to find a practitioner who would have been ready to issue the
requested prescription.
In any event, the authorities had stayed within
their margin of appreciation. The Government reiterated that, under the Court’s
case-law, the Convention had to be seen as a whole and that Article 2 of the
Convention obliged the national authorities to prevent an individual from
taking his or her own life if the decision had not been taken freely and with
full understanding of what it involved. It could be established by statistics
that the vast majority of suicide attempts were undertaken under the influence
of a mental illness and that four out of five people did not repeat their
attempt. Accordingly, the State was under an obligation to effectively protect
people who were suffering from an acute episode of depression from access to a
substance which would facilitate their suicide.
The Government further observed that there
existed numerous means by which to end to one’s life. It had not been
established that the ingestion of sodium pentobarbital was the only effective
and supposedly painless method to do so. In any event, the restriction imposed
on access to this substance was not capable of preventing a healthy person from
ending his or her life if they wished to do so and had not put into question
the individual’s right to decide when and by which means their life would end.
The Government further considered that the risks
of abuse were obvious, keeping in mind that a small dose of the substance could
cause certain death. It was thus necessary to limit access to this substance.
As far as people like the applicant, who was not suffering from a serious illness,
were concerned, the Government considered that it would be too difficult to
assess the motivation for a prescription request in order to rule out the
possibility of the State facilitating the suicide of an individual who was
suffering from nothing more than an acute episode of depression.
The Government finally pointed out that the
regulations on assisted suicide were more liberal in Switzerland than in a
number of other Member States, thus causing a number of people to travel to Switzerland in order to end their life there, a phenomenon which had been termed “suicide
tourism”. Under these circumstances, Switzerland could not be blamed for
seeking to put in place safeguards against the risk of the floodgates being
opened, particularly given that the consequences would be fatal for those
concerned.
3. The third parties’ submissions
Referring to the Court’s case-law (see Pretty
and Haas, both cited above), the Alliance Defending Freedom submitted
that the Convention did not convey any right to assisted suicide. While the
Court had recognised that some individuals may wish to commit suicide in a
manner of their choosing, this declaration of personal autonomy and
self-determination could never outweigh the countervailing need to uphold
public health and safety and to protect the rights and freedoms of others. This
was particularly so given the seriousness of the harm involved and the high
risk of abuse inherent in a system which facilitated assisted suicide. It
followed that Article 8 of the Convention did not create a positive obligation
on the State to facilitate assisted suicide. Even if such an obligation
existed, national authorities would not fail to comply with that obligation by
placing restrictions on access to lethal substances.
The European Centre for Law and Justice
considered that the Court, in its Haas judgment, had placed the right to
personal autonomy under Article 8 of the Convention above the right to life
enshrined in Article 2 and had thus reversed the hierarchical structure of the
rights enshrined in the Convention. This approach had destroyed the balance
between the two Convention rights and thus jeopardised the coherence of the
Convention and the foreseeability of the obligations incumbent on the States.
In the Haas judgment, the Court had failed to consider that Article 2 of
the Convention contained an absolute ban on the State intentionally taking
human life. Consequently, there could be no right under the Convention to
assisted suicide. This was in line with the legal situation of the vast
majority of the Member States and with Council of Europe recommendations.
According to Americans United for Life, there
was no positive obligation under Article 8 to help someone to have the kind of
death they wished. They further considered that if the Court were to hold that
such an obligation existed, it would inadvertently place vulnerable people at
risk of coercion, neglect, or prejudice. Further relevant public policy reasons
for refusing such a right were preserving human life, protecting the integrity
of the medical profession, and regulating dangerous substances. They further
submitted that, for these same reasons, none of the highest courts of the United States of America had ever interpreted guarantees of privacy or liberty to be broad
enough to provide a right to assistance in committing suicide.
According to Dignitas, full respect for the right
to self-determination, especially at the end of life, made it necessary
for there to be a relatively simple, yet nonetheless controlled access to
sodium pentobarbital as a means of suicide. There was a serious risk of failed
suicide attempts, leading to the temporary or permanent impairment of the
health and well-being of either the individual who wished to commit suicide or
that of third parties. The prevention of suicide was best served by open
counselling which treated suicide as acceptable human behaviour if it was
justified. Furthermore, a large majority of the Swiss population supported
assisted dying in the form of organised assistance to commit suicide.
4. Assessment by the Court
The Court reiterates that the notion of “private
life” within the meaning of Article 8 of the Convention is a broad concept,
which encompasses, inter alia, the right to personal autonomy and
personal development (see Pretty, cited above, § 61, and A, B and C
v. Ireland [GC], no. 25579/05, § 212, ECHR 2010). Without in any way
negating the principle of the sanctity of life protected under the Convention,
the Court has considered that, in an era of growing medical sophistication
combined with longer life expectancies, many people are concerned that they should
not be forced to linger on in old age or in states of advanced physical or
mental decrepitude which conflict with strongly held ideas of self and personal
identity (see Pretty, cited above, § 65, and Koch, cited above, § 51).
In the Pretty case, 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 her private life as guaranteed
under Article 8 § 1 of the Convention (see Pretty, cited above, § 67).
In the Haas case, the Court further
developed this case-law by acknowledging that an individual’s right to decide
the way in which and at which point his or her life should end, provided that
he or she was in a position to freely form his or her own judgment 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; see also Koch v. Germany, no. 497/09, § 52, 19 July 2012).
Having regard to the above, the Court considers
that the applicant’s wish to be provided with a dose of sodium pentobarbital
allowing her to end her life falls within the scope of her right to respect for
her private life under Article 8 of the Convention.
The Court further reiterates that the essential
object of Article 8 is to protect the individual against arbitrary interference
by public authorities. Any interference under the first paragraph of Article 8
must be justified in terms of the second paragraph, namely as being “in
accordance with the law” and “necessary in a democratic society” for one or
more of the legitimate aims listed therein. According to the Court’s settled
case-law, the notion of necessity implies that the interference corresponds to
a pressing social need and in particular that it is proportionate to one of the
legitimate aims pursued by the authorities (see, for
example, A, B and C, cited above, § 229)
In addition, there may also be positive obligations inherent in an
effective “respect” for private life. These obligations may even involve the
adoption of measures designed to secure respect for private life in the sphere
of relations between individuals, including both the provision of a regulatory
framework of adjudicatory and enforcement machinery protecting individuals’
rights and the implementation, where appropriate, of specific measures (see,
among other authorities, X and Y v. the Netherlands, 26 March 1985, §
23, Series A no. 91, and Tysiąc v. Poland, no. 5410/03, § 110,
ECHR 2007-I).
In the Haas case, the Court considered
that it was appropriate to examine the applicant’s request to obtain access to
sodium pentobarbital without a medical prescription from the perspective of a
positive obligation on the State to take the necessary measures to permit a
dignified suicide (see Haas, cited above, § 53). In contrast, the Court
considers that the instant case primarily raises the question whether the State
had failed to provide sufficient guidelines defining if and, in the case of the
affirmative, under which circumstances medical practitioners were authorised to
issue a medical prescription to a person in the applicant’s condition.
Turning to the circumstances of the instant
case, the Court observes at the outset that in Switzerland, pursuant to Article
115 of the Criminal Code, inciting and assisting suicide are punishable only
where the perpetrator of such acts is driven to commit them by “selfish
motives”. Under the case-law of the Swiss Federal Supreme Court, a doctor is entitled
to prescribe sodium pentobarbital in order to allow his patient to commit
suicide, provided that specific conditions laid down in the Federal Supreme
Court’s case-law are fulfilled (compare paragraph 30, above).
The Court observes that the Federal Supreme
Court, in its case-law on the subject, has referred to the medical ethics
guidelines on the care of patients at the end of their life, which were issued
by a non-governmental organisation and do not have the formal quality of law.
Furthermore, the Court observes that these guidelines, according to the scope
of application defined in their section 1, only apply to patients whose doctor
has arrived at the conclusion that a process has started which, as experience
has indicated, will lead to death within a matter of days or a few weeks
(compare paragraph 33 above). As the applicant is not suffering from a terminal
illness, her case clearly does not fall within the scope of application of
these guidelines. The Court further observes that the Government have not
submitted any other material containing principles or standards which could
serve as guidelines as to whether and under which circumstances a doctor is
entitled to issue a prescription for sodium pentobarbital to a patient who,
like the applicant, is not suffering from a terminal illness. The Court considers
that this lack of clear legal guidelines is likely to have a chilling effect on
doctors who would otherwise be inclined to provide someone such as the
applicant with the requested medical prescription. This is confirmed by the
letters from Drs B. and S. (see paragraph 11, above), who both declined the
applicant’s request on the grounds that they felt prevented by the medical
practitioners’ code of conduct or feared lengthy judicial proceedings and,
possibly, negative professional consequences.
The Court considers that the uncertainty as to
the outcome of her request in a situation concerning a particularly important
aspect of her life must have caused the applicant a considerable degree of
anguish. The Court concludes that the applicant must have found herself in a
state of anguish and uncertainty regarding the extent of her right to end her
life which would not have occurred if there had been clear, State-approved
guidelines defining the circumstances under which medical practitioners are
authorised to issue the requested prescription in cases where an individual has
come to a serious decision, in the exercise of his or her free will, to end his
or her life, but where death is not imminent as a result of a specific medical
condition. The Court acknowledges that there may be difficulties in finding the
necessary political consensus on such controversial questions with a profound
ethical and moral impact. However, these difficulties are inherent in any
democratic process and cannot absolve the authorities from fulfilling their
task therein.
The foregoing considerations are sufficient to
enable the Court to conclude that Swiss law, while providing the possibility of
obtaining a lethal dose of sodium pentobarbital on medical prescription, does
not provide sufficient guidelines ensuring clarity as to the extent of this
right. There has accordingly been a violation of Article 8 of the Convention in
this respect.
As regards the substance of the applicant’s
request to be granted authorisation to acquire a lethal dose of sodium
pentobarbital, the Court reiterates that the object and purpose underlying the
Convention, as set out in Article 1, is that the rights and freedoms contained
therein should be secured by the Contracting State 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).
Having regard to the above considerations, and,
in particular, the principle of subsidiarity, the Court considers that it is
primarily up to the domestic authorities to issue comprehensive and clear
guidelines on whether and under which circumstances an individual in the
applicant’s situation - that is, someone not suffering from a terminal illness
- should be granted the ability to acquire a lethal dose of medication allowing
them to end their life. Accordingly, the Court decides to limit itself to the
conclusion that the absence of clear and comprehensive legal guidelines violated
the applicant’s right to respect for her private life under Article 8 of the
Convention, without in any way taking up a stance on the substantive content of
such guidelines.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant further complained under Articles
6 § 1, 8 and 13 of the Convention about the domestic courts’ decisions and that
they had failed to take into account the pertinent arguments she had submitted
before them. She further complained that the impugned decisions had violated
her rights under Articles 2 and 3 of the Convention.
However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols.
It follows that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
III. 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
The applicant did not submit a claim for damages.
Accordingly, the Court considers that there is no call to award her any sum on
that account.
B. Costs and expenses
By letter to the Court dated 13 September 2012, the
applicant claimed the sum of 49,557.80 francs (CHF) for the costs of the
proceedings before the domestic authorities and before the Court. The applicant’s
lawyer presented his excuses for having misunderstood letters sent by the
Registry of the Court on 23 May and 9 August 2012 (see below).
The Government considered that the sum claimed
by the applicant was excessive and was not supported by the necessary
documentation. They observed that the applicant had been charged the overall
sum of CHF 5,060 for the proceedings before the domestic authorities and
invited the Court to award the applicant this sum. Alternatively, they invited
the Court to award the applicant CHF 10,000 under this head.
The Court observes that its Registry, by letter
of 23 May 2012, asked the applicant to submit any claims for just satisfaction
by 3 July 2012. By letter of 9 August 2012, the applicant was again asked to
submit such claims by 30 August 2012. It follows that the applicant lodged her
claim for costs and expenses after expiry of the relevant time-limit and
without giving sufficient reasons for the delay. Accordingly, the Court does
not make any award under this head and sees fit to reject the applicant’s claim
for costs and expenses in full.
FOR THESE REASONS, THE COURT
1. Declares unanimously the complaint under
Article 8 of the Convention admissible and the remainder of the application
inadmissible;
2. Holds by four votes to three that there
has been a violation of Article 8 of the Convention;
3. Dismisses unanimously the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 14 May 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
In accordance with Article 45 § 2
of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of
Judge D. Jočienė, joined by judges G. Raimondi and I. Karakaş, is
annexed to this judgment.
G.R.A.
S.H.N.
JOINT DISSENTING OPINION OF JUDGES RAIMONDI, JOČIENĖ
AND KARAKAŞ
1. We voted against finding a violation of Article
8 in this case because, to our regret, we were not able to follow the majority
in their findings. We observe that under section 24(a) of the Therapeutic
Products Act, read in conjunction with the Drugs Act, sodium pentobarbital is
available only upon medical prescription. We further observe that under the
pertinent case-law of the Federal Supreme Court (see paragraph 30 of the
judgment), section 24(a) of the Therapeutic Products Act does not allow
for an exemption from this rule in the event that no medical practitioner is
willing to issue the required prescription. We are of the opinion that the
Federal Supreme Court’s case-law, which refers to the above-mentioned medical
guidelines, sufficiently and clearly defines the circumstances under
which a medical practitioner is allowed to issue a prescription for sodium
pentobarbital.
2. We are also of the opinion that, even accepting
that the right to assisted suicide is recognised in Switzerland, our applicant is not among the people who have obtained such a right, in the circumstances of
the case. We note that the domestic law is very clear on this point - the
lethal substance can be prescribed by medical practitioners issuing a medical
prescription (see paragraphs 19-21, 26, 30 and 32-33 of the judgment). The
applicant was not able to obtain such a prescription at domestic level as she
had not been suffering from a terminal illness, which is a clearly defined
precondition for obtaining the lethal substance. She had just expressed her
wish to die because of her advanced age and increasing frailty. Therefore, in
our opinion, the applicant in the instant case did not fulfil the conditions
laid down in the medical ethics guidelines on the care of patients at the end
of life adopted by the Swiss Academy of Medical Sciences (see paragraphs 32-33
of the judgment) which have, in our opinion, been correctly applied and clearly
interpreted in the jurisprudence of the Federal Supreme Court (see paragraphs
19-21 of the judgment).
3. With regard to the balancing of the competing
interests in this case, in our opinion the instant case falls to be
distinguished from the Haas case (cited in paragraph 63 of the
judgment). In that case, the applicant wished to end his life because he was
suffering from a serious psychiatric disorder. Conversely, in the present case
the applicant, as mentioned above, is not suffering from any serious illness,
but rather does not wish to continue living while relying on physical and
mental faculties that are impaired through old age. In our opinion the
regulations put in place by the Swiss authorities, namely the requirement to
obtain a medical prescription, pursue, inter alia, the legitimate aims
of protecting everybody from making hasty decisions, preventing abuse, and,
most notably, ensuring that a patient lacking the ability to understand the
consequences of his or her actions does not obtain a lethal dose of sodium
pentobarbital (compare Haas, § 56).
4. As the Court remarked in the Haas case
(see Haas, § 57), such regulations are all the more necessary in
respect of a country such as Switzerland, where legislation and practice allow
for access to assisted suicide. Where a country adopts a liberal approach in
this matter, appropriate implementing measures for such an approach and
preventive measures are necessary. The introduction of such measures is also
intended to prevent organisations which provide assistance with suicide from
acting unlawfully and in secret, with significant risks of abuse.
5. In particular, the Court has considered that the
risks of abuse inherent in a system that facilitates access to assisted suicide
should not be underestimated. It considers that the requirement for a medical
prescription, issued on the basis of a full psychiatric assessment, is a
legitimate means enabling this obligation to be met. Moreover, the Court has
found that this solution corresponds to the spirit of the International
Convention on Psychotropic Substances (see Haas, § 58, and paragraph 37
of the judgment).
6. With regard to the margin of appreciation enjoyed by
the State, for the purposes of the balancing process, we reiterate that a
number of factors must be taken into account when determining the breadth of
that margin in relation to any case under Article 8 of the Convention. Where a
particularly important facet of an individual’s existence or identity is at
stake, the margin allowed to the State will normally be restricted (see, for
example, Dudgeon v. the United Kingdom, 22 October 1981, § 52, Series A
no. 45; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, §
90, ECHR 2002-VI; and Evans v. the United Kingdom [GC], no.
6339/05, § 77, ECHR 2007-IV).
7. Where, however, there is no consensus between
the States Parties to the Convention, either as to the relative importance of
the interest at stake or as to the best means of protecting it, particularly
where the case raises sensitive moral or ethical issues, the margin will be
wider. By reason of their direct and continuous contact with the vital forces
of their countries, the State authorities are, in principle, in a better
position than an international court to give an opinion, not only on the “exact
content of the requirements of morals” in their country, but also on the
necessity of a restriction intended to meet such requirements (see, among other
authorities, A, B and C, cited in paragraph 58 of the judgment, and Handyside
v. the United Kingdom, 7 December 1976, § 48, Series A no. 24).
8. The comparative research shows that the majority
of States Parties do not allow any form of assisted suicide (see paragraph
34-35 of the judgment, and Haas, § 55). Only four States examined allow
medical practitioners to prescribe a lethal drug in order to enable a patient
to end his or her life. It follows that the States Parties to the Convention
are a long way from reaching a consensus in this respect, thus indicating that
the State should enjoy a considerable margin of appreciation in this area (also
compare Haas, § 55, and Koch, cited in the judgment at paragraph 59).
9. With regard to the applicant’s argument that the
legal situation such as exists in Switzerland rendered theoretical and illusory
her right to decide when and by which means her life would end, we observe that
this right, like any other aspect of the right to respect for one’s private
life contained in Article 8, may be subject to restrictions in the public
interest. In our opinion, the clearly formulated and statutory restrictions and
the jurisprudence of the Federal Supreme Court on a specific drug’s
prescription have clearly eliminated our applicant from the application of such
provisions in her case, as she did not fulfil the established legal
requirements; she was not able to be issued with a medical prescription for
sodium pentobarbital as she was not suffering from a terminal illness (see
paragraph 2 of the present opinion). Therefore we conclude that the right
in question, which was not granted to the applicant under the domestic law, cannot be regarded as illusory.
10. Having regard to the above considerations, we consider that the State remained well within its margin of appreciation when refusing to
grant the applicant authorisation to acquire a lethal dose of sodium
pentobarbital without a medical prescription, assuming that it is acceptable
for such a prescription to be given to other people in clearly defined
circumstances under the domestic law and practice. In our view the Court should
not oblige the State to adopt some laws or provisions for broader regulation of
certain questions that the State has by itself determined in a clear and
comprehensive manner.
11. We therefore believe that there has,
accordingly, been no violation of Article 8 of the Convention.
