The European Court for Human Rights (ECHR) has stated that Hungary is not contravening the European Convention on Human Rights by prohibiting assisted suicide or euthanasia, as well as assistance for conducting it in a foreign state.
The affair, which was judged on 13th June 2024 by the first section of the ECHR concerns the case of Daniel Karsai (the claimant), a lawyer, suffering from LAS (lateral amyotrophic sclerosis) or Lou Gehrig’s disease. Mr. Karsai applied for permission to end his days before his suffering became unbearable. He deplored the impossibility of doing so in Hungary even in the case of a terminal disease causing existential suffering. It is also prohibited for any person to assist him to obtain such death abroad.
In view of the advanced state of the disease, the case was afforded priority once the claim was submitted in August 2023.
The claimant alleged that the prohibition against assisted suicide was in violation of article 8 of the European Convention on Human Rights (right of privacy and family life) and article 14 relative to the prohibition of discrimination. He claimed he was being discriminated against compared with those in a terminal phase who could ask for their treatments to be curtailed.
Furthermore, he complained that his disease would force him to be imprisoned in his body whereas he was fully conscious, which could be applicable to article 3 of the Convention which prohibits inhuman and degrading treatments. He also claimed an infringement of article 9 (freedom of thought, conscience and religion) insofar as the possibility of “dying with dignity” was part of his religious and philosophical beliefs.
In its judgement, the Court stated from the beginning that article 2 (Right to life) of the European Convention for Human Rights does not prevent the authorities of a State from legalising assistance for suicide providing it establishes adequate measures to prevent abuse. However, the legalisation of assistance in dying entails major social consequences as well as risks of abuse and errors of appreciation. The provision of high quality palliative care, including effective pain relief, are essential conditions for ensuring a dignified end of life.
Under the circumstances of the present case, the Court considered that the affair raised sensitive moral, ethical and political questions for which the national authorities were best placed for evaluating the priorities for the use of resources and social needs, in particular concerning the provision of palliative care and appropriate means of relief for patients in the same situation such as palliative sedation.
Karsai did not deny that he had access to palliative care but that if he was offered terminal sedation for relief, he would lose what little autonomy he still possessed. Whilst recognising the legitimacy of his personal choice, the judges concluded that it could not under any circumstances oblige the Hungarian authorities to provide assisted suicide or euthanasia.
Furthermore, they judged that there was nothing unreasonable in the fact that the prohibition against assisted suicide should apply also to those committed abroad, arguing that it would lead to the creation of an exception to Hungarian criminal law.
Non violation of articles 8 and 14 of the European Convention for Human Rights
In view of these facts and of the broad discretionary powers of the State on the subject, the Court judged that the prohibition against assisted suicide or euthanasia was not disproportionate and that there was no violation against article 8.
Concerning article 14, the Court underlined that refusing or requesting the curtailing of a medical treatment was not the same situation as assisted suicide. It concerns procedures which are widely recognised in the medical profession and also registered in the Oviedo convention on biomedicine. The difference in treatment is therefore justified and does not constitute a violation of article 14 together with article 8 of the Convention.
Finally, unanimously, the references to articles 3 and 9 were rejected as they were clearly unfounded.
“No right for assisted suicide and euthanasia”, but ambiguities remain
The judgement was adopted by an overwhelming majority of six votes to one. The claimant could however appeal to the Grand Chamber.
The judgement recalls that a State cannot be obliged to legislate on assisted suicide or euthanasia. Inasmuch as the European Court recognises a wide freedom of choice for States to establish means for the protection and dignified accompaniment of people until death.
Nevertheless the judges caused some ambiguity when they stated that “Nevertheless, the Convention must be interpreted and applied in the light of current conditions. It is therefore necessary to monitor the need for adequate legal measures, taking into account the evolution of European societies and international standards in terms of medical ethics on the subject”. They refer to a few member states of the European Council which have legalised euthanasia or assisted suicide in recent years.
By failing to declare a position on the question of the “right to life” which appears in article 2 of the Convention, the Court neither condemns nor approves legalisation as such of these practices. This abusive interpretation by the Court of the right to life has been challenged by judge Wojtyczek.
He underlines that, “The convention calls for a strictly literal interpretation and excludes the insertion of additional exceptions by dynamic interpretation.” He recalls that the judgement indicates in paragraph 141 that “It is appropriate, in the context of the examination of a possible violation of article 8, to refer to article 2 of the Convention, which creates for the authorities a duty for the protection of the most vulnerable, even against actions by which they endanger their own lives.” Indicating that such an obligation incorporates the protection against assisted suicide and euthanasia.
