The Grand Chamber to Rule on a Right to Assisted Suicide

At its last meeting (7 October 2013), the Grand Chamber panel of five judges decided to refer the case of Alda Gross v. Switzerland (application n° 67810/10) to the Grand Chamber of the European Court of Human Rights. The case concerns the complaint of an elderly woman, who wishes to end her life but does not suffer from a clinical illness, that she was unable to obtain a lethal dose of a drug in order to commit an “assisted suicide”.

The Second Section of the Court, in a highly controversial ruling reached by only four votes against three, decided on 14^th May 2013 that Switzerland violated the private life of the woman. Following the request of the Swiss Government, the panel recognised that the case raises a serious legal question or a serious issue of general importance and referred the case. The Grand Chamber of the Court, composed of 17 judges, will therefore re-examine the case in the coming months.

The ECLJ has been authorised by the Court to intervene in that case as third party (amicus curiae) and has submitted a brief to the Second Section and will continue, before the Grand Chamber, to advocate in support of true human rights and medicine, which do not contain a right to die nor a duty to kill.

Through the first judgment of Alda Gross v. Switzerland (No. 67810/10), given on 14^th May 2013, the Second Section completed the edification of an individual right to assisted suicide (that is to say, consenting euthanasia) in the name of the right to the respect of private life guaranteed by the European Convention on Human Rights. The difference between assisted suicide and euthanasia is tiny, it depends on who “pushes the button”.

The Section justified its judgment by referring to the general concern 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” (§ 58)[1].

This decision follows the rulings of Pretty v. United Kingdom (No. 2346/02 of 29th April 2002), Haas v. Switzerland (No. 31322/07 of 20th January 2011) and Koch v. Germany (No. 497/09 of 19th July 2012), in which the Court progressively elaborated “an individual’s right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence” (Haas § 51).  In Koch, the Court went a step further by ruling that judges should be able to consider the individual merits of a wish to resort to assisted suicide, even if it is prohibited by penal law, and so decide on a case by case basis.

Now, in Alda Gross v. Switzerland, the Section has, in substance, condemned the conditioning by medical norms of the effective exercise of the right to assisted suicide, and the exclusion by these norms, in principle, of assisted suicide by people in good health.  In this case, the plea for suicide did not concern a “medical case” of an ill person wishing to end their life, but an elderly person with no clinical illness who had grown tired of living.  This woman was refused the medical prescription of a fatal dose of poison (Sodium Pentobarbital), as her good health prevented her from fulfilling the conditions provided by the Code of Professional Medical Conduct and the Medical Ethics Guidelines adopted by the Swiss Academy of Medical Sciences.

According to Swiss law, incitation to and assistance in suicide are only culpable offences when they are committed for “selfish motives” (Swiss Criminal Code, Article 115).  The Swiss Federal Supreme Court has specified, in the application of legislation relating to drugs and medication[2], that the poison can only be given by medical prescription and that this prescription is only valid on the condition that the doctor respects the rules of the profession, in particular the ethical guidelines adopted by the Academy of Medical Sciences (Judgment of 3rd November, BGE 133 I 58).  These guidelines notably relate to the patient’s health – who should be ill and coming to the end of their life – and to the expression of their will; they aim to protect the patient against outside pressure and impulsive decisions.  As in other countries of Europe, medical practice is governed by norms of a diverse nature.  In this case, as no specific statutory regime concerning the practice of assisted suicide had been adopted by the legislator despite its attempt between 2009 and 2011, it was these general rules of medical law that were applied, which exclude the issue of such a substance to a healthy person.

It was on this issue that the majority of the Second Section censored the Swiss system: it felt that the law, not deontological norms, should govern the conditions for the prescription of the poison.  This judgment rests on the notion that suicide has acquired the quality of an individual right or freedom (§ 66), and so a deontological norm cannot impede its exercise: it is for the law to regulate, even if it is realised through the art of medicine.

Following this judgment, Switzerland would have had to adopt a legal framework defining the conditions of the exercise of the right to assisted suicide for everybody, regardless of their health. This conclusion logically follows from premises that human rights and medicine’s primary purpose is to serve the will of the individual, even if that individual wishes to die, rather than to protect and care for him possibly against his own will.  In this regard, individual autonomy appears as the new primary value of the Convention, even above the respect of life. In practical terms, the judgment of May 14th 2013 puts this liberal approach into action, by ruling that the prescription of poisons should be removed from the “paternalistic” field of medicine and placed in that of civil liberties.  The Court has already done this with the regulation of abortion in Poland and Ireland (eee Tysiac v. Poland, No. 5410/03, 20th March 2007, and A. B. and C. v. Ireland,[GC], No. 25579/05, 16th December 2010).

Once again, with the first judgment of May 14^th 2013, the Court exposed its internal division on social issue (see also X and Others v. Austria, [GC], No. 19010/07, 13th February 2013). Four judges (Lorenzen, Sajó, Vucinic, and Keller) imposed their decision on the three others (Jociene, Raimondi and Karakas), at the price of the Court’s unity and the prudence of its case law, both of which are essential conditions of its authority. Indeed, the four judges also imposed their view on the entire Court, which will have now to reconsider the case more seriously, remembering article 2 of the Convention according to which “no one shall be deprived of his life intentionally”.

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[1] Alda Gross v. Switzerland, No. 67810/10, 14th May 2013,§ 58.

[2] Federal Law on Narcotic Drugs and Psychotropic Substances of 3rd October 1951, and Federal Law on Drugs and Medical Devices of 15th December 2000.