1

With reference to academic opinion and relevant case law of the European Court of Human

Rights, critically assess the position of the European Court of Human Rights relating to

euthanasia and assisted suicide.

Student Number: 650042321

Module: The European Convention on Human Rights

Word Count: 3824 (Within the 5% Limit)

2

With reference to academic opinion and relevant case law of the European Court of Human Rights,

critically assess the position of the European Court of Human Rights relating to euthanasia and

assisted suicide.

Dr Puppinck and Dr Houge observe that: “[T]he case law of the European Court of Human Rights

[ECtHR, the Court] clearly leads to the acceptance of a right to assisted suicide [A.S].”1 However,

Western States have traditionally disapproved of the practice2 and implemented legislation whereby

the acts are criminal offences;3legally condoned A.S is a recent innovation of Western society.4

Dupre notes: “The time and timing of death have been profoundly transformed […] prompting

discussion on euthanasia and assisted suicide.”5 Regarding the Court’s position on A.S and

euthanasia, three observations have been deduced. Firstly, Article.2 of the European Convention on

Human Rights (ECHR, the Convention),6 the ‘Right to Life,’ does not encompass a ‘Right to Die’.7

Secondly, within Article.8, the ‘Right to Respect for Private Life’, the Court has established a ‘right to

A.S’.8 Thirdly, the Court affords member States a wide margin of appreciation (MofA) when

restricting the ‘right to A.S’ within their jurisdiction.9 In considering these aspects, the Court’s

position regarding a ‘right to A.S’ is held to be unsound. However, it is first appropriate to distinguish

between A.S and euthanasia.

1 Gregor Puppinck and Claire de La Houge, “The ‘Right’ to Assisted Suicide in the case law of the European Court of Human Rights’ (2014) Vol.18(7-8) The International Journal of Human Rights, 735, 741 2 Washington v Glucksberg, 521 U.S. 702, 710-12 (1997); Emily Wada, “A Pretty Picture: The Margin of Appreciation and the Right to Assisted Suicide” (2005) Vol.27 Loyola of Los Angeles International and Comparative Law Review 275 3 Rustin-Petru CIASC, “Euthanasia, National and International Perspectives” (2013) Vol.9(2) Acta Universitatis Danubius Juridica, 41 4 Wada (n-2) 283 5 Catherine Dupre, The Age of Dignity, (Hart Publishing, 2015) 146 6 Convention for the Protection of Human Rights and Fundamental Freedoms 1950 7 Wada (n-2) 275; JMT Labuschagne, “The European Court of Human Rights and the right to assisted suicide in international human rights law.” (2004) Vol.17(1) South African Journal of Criminal Justice, 87; Puppinck (n-1) 735 8 Puppinck (n-1) 741 9 Wada (n-3) 275; Carmen Draghici, “The blanket ban on assisted suicide: between moral paternalism and utilitarian justice” (2015) European Human Right Law Review 286

3

Defining Assisted Suicide and Euthanasia

A.S involves providing the applicant with the means of committing suicide however, the applicant

performs the final, death inducing, act.10 Conversely, in voluntary euthanasia11 the assisting person

commits the final act at the victim’s request.12 Despite this distinction, the ECtHR exclusively

mentions A.S even in situations where the candidate to suicide is unable to execute the lethal act

themselves13 possibly because the two acts are not always easily distinguishable.14 Notably, in Pretty

v United Kingdom,15 despite the applicant being completely paralysed and unable to perform the

lethal act herself, the Court exclusively referred to A.S. Concurrently, at a domestic level, irrespective

of whether States permit16 or ban17 euthanasia, the action also includes A.S.18 Indeed, only

Switzerland applies a distinction in law.19 Accordingly, the two practised are referred to

interchangeably.

10 For instance, self-administering a lethal substance. Puppinck (n-1) 739; Amelia Mihaela Diaconescu, “Euthanasia” (2012) Vol4(2) Contemporary Readings in Law and Social Justice, 474 11 Compared to non-voluntary and involuntary euthanasia. Non-voluntary euthanasia involves an individual ending the life of a person who cannot choose by himself between living and dying. Involuntary euthanasia is performed on a person who is able to provide informed consent, but does not, because he was not asked. For instance, causing death by administering an ever increasing dose by the doctor who does not intend to cause death, but to alleviate pain, but which could produce (involuntarily) the patient’s death. Diaconescu (n-10) 474 J. Lucy Pridgeon, “Euthanasia Legislation in the European Union: is a Universal Law Possible?” (2006) Vol.2(1) Hans Law Review, 45,46 Gordijn, Bert, Ben Crul and Zbigniew Zylicz ‘Euthanasia and physician-assisted suicide’, in Ten Have, H. and Clark, D (eds.), The Ethics of Palliative Care: European perspectives (Buckingham, Open University Press, 2002), 182. 12 Puppinck (n-1) 739 13 ibid 741 14 ibid 750 15 Pretty v United Kingdom (GC), Ap.234/02, 29th April 2002 16 E.g. Belgium. See: Pridgeon (n-11) 45 17 E.g. Germany. See: ibid 18 Puppinck (n-1) 739 19 ibid

4

The ‘Right to Die’: Considering Article.2 and Article.8

In Pretty20 the Court held that the ‘right to life’ does not encompass a negative aspect; a right to

die.21 However, the ruling fails to consider the ‘quality of life.’ 22 Justice Sachs perceives that: “The

right to life without a basis quality of life […] is senseless.”23 Accordingly, the Court failed to properly

address the interaction between the ‘right to life’ and the “claim to the basic quality of life.”24

Labuschagne notes:

“The untenable and vicious effect of these decisions, whatever the technical and

interpretational arguments may be, is that a cruel and senseless dying process, which forms

part of the living process since the individual is still alive when dying, is sanctioned by legal

rules.” 25

However, Article.2 is:

“[A] provision which not only safeguards the right to life but sets out the circumstances when

the deprivation of life may be justified. Article 2 ranks as one of the most fundamental

provisions of the convention...”26

Therefore, the Court’s position is commendable for upholding the ‘sanctity of life.’27 Furthermore,

Article.2 obliges the State to not only refrain from intentionally and unlawfully depriving its subjects

of life, but to also take appropriate steps to safeguard their lives.28 States have notably accomplished

20 Pretty v United Kingdom (GC), Ap.234/02, 29th April 2002 21 ibid Para 39 22 Labuschagne (n-7) 93 23 Justice Sachs in S v Makwanyane and Another (CCT3/94) [1995] ZACC 3 Para 353 24 Labuschagne(n-7) 90-91 25 ibid 93 26 McCann v UK (1995) 21 EHRR 97 Para 146-7. Author emphasis added 27 See Puppinck (n-1) 28 LCB v UK [1998] ECHR 108 See also Osman v UK [1998] ECHR 101 and Keenan v UK 2001 Ap.27229/95, 3rd April 2001 Para 91-92

5

this by “prohibiting murder and [A.S].”29 Critically, Article.2(2) exhaustively lists the exceptions to the

right to life that are tolerated30 and Article.15(2) further states that:

“No derogation from Article 2, except in respect of deaths resulting from lawful acts of war,

[…] shall be made under this provision.”

Significantly, neither Article.2(2) or Article.15(5) provides that the consent of an individual or their

quality of life are justifications for derogation.31 Accordingly, the Court is correct in its assertion that:

“[Article.2] is unconcerned with issues to do with the quality of living [….] Article 2 cannot,

[…], be interpreted as conferring […] a right to die...”32

However, the Court has expanded the scope of Article.8 and obliged States to adopt a liberal

position on A.S.33 Accordingly, attention now turns towards its development and interaction with

Article.2.

As Houge observes:

“The recognition of the right to A.S was obtained [not by] the substantive right to [A.S] but

the procedural right to know if one is able to legally exercise this right.”34

In Hass v Switzerland,35 Switzerland was obliged “to establish a procedure capable of ensuring that a

decision to end one’s life does indeed correspond with the free wish of the individual concerned.”36

Subsequently in Koch v Germany,37 the State was obliged to establish an effective framework to rule

29 Puppinck (n-1) 757 30 Article.2(2) “Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection”

31 ibid 32 Pretty v United Kingdom (n-15) Para 39 33 Puppinck (n-1) 750 34 ibid. Author emphasis added. 35 Haas v Switzerland, Ap.31322/07, 20 January 2011 36 ibid Para 58 37 Koch v Germany, Ap.497/09, 19 July 2012

6

on the merits of decisions refusing A.S.38 Finally, in Gross v Switzerland,39 Switzerland was held to be

obligated to establish a legal framework permitting individuals to claim their right to A.S.40 However,

the legal basis of these obligations is unclear.41

A Conventional procedural obligation is an accessory of a principal material right.42 Therefore, the

Court’s assertions imply the existence of a material right. Such an obligation derives either directly

from the Convention, an autonomous Convectional obligation, and/or domestic law (provided it

enters the scope of the Convention).43 As there is no domestic ‘right to A.S’ in the States concerned,

one can conclude that the procedural obligation derives from an autonomous Convention right.

However, the Court fails to affirm the existence of this right in either Haas, Koch or Gross.44 Rather, it

references Schneider v Germany45 stressing that:

“[Article.8] may encompass a right to judicial review even in a case which the substantive

right in question had yet to be established.”46

However, in Schneider a relevant domestic right already existed while in Koch the legislator had

intentionally omitted the right.47 Therefore, the Court’s reference is inappropriate.48 The Court has

failed to dispel the doubt as to the actual existence of an independent Convention right. Therefore,

“the legal basis [of the] right to A.S is dubious.”49 Accordingly, the Court’s reasoning in finding a right

to A.S under Article.8 needs to be addressed.

38 ibid Para 71 39 Gross v Switzerland, Ap. 67810/10, 14 May 2013 40 Puppinck (n-1) 751 41 ibid 42 Tysiac v Poland Ap.5410/03 20 March 2007 para 113; A procedural right is not an independent right but rather a right requiring a State to guarantee the means of access to enjoyment of a right. 43 Puppinck (n-1) 751 44 ibid 45 Schneider v Germany Ap.17080/07 15 September 2011 Para 100. The Court noted the possibility of establishing a procedural obligation without first having recognised a principal material right 46 Koch v Germany (n-37) Para 53 47 Puppinck (n-1) 753 48 ibid 49 ibid 758 “the legal basis on which the Court has [built] the right to [A.S] is dubious.”

7

Article.8 and a ‘Right to Assisted Suicide’

Since Pretty the Court has increasingly ignored Article.2.50 In Hass, it was considered only in terms of

its procedural obligation to verify the subjective will of the suicide candidate51 to prevent:

“an individual from taking his or her own life if the decision has not been taken freely and

with the full understanding of what is involved”52 [ensuring the] “decision [..]correspond[s]

with the free wish of the individual concerned.”53

Thus, the obligation to ‘guarantee and respect the right to life’ under Article.2 is not realised by the

‘mere’ respect of life but by respecting the autonomy of the individual. Moreover, in Koch and Gross,

whilst the Court recalled the sacredness of life it was presented in a negative formulation, the

‘quality of life’ taking ‘priority’:

“Without in any way negating the principle of the sanctity of life protected under the

Convention, the Court Considers that it is under Article.8 that notions of the quality of life

take on significance.”54

Hence, the principal consideration regarding A.S is the subjective right to a ‘quality of life’ rather

than the objective ‘right to life’; the autonomy of an individual being both the basis and the

condition of the ‘right to A.S’.55 Critically, the objectivity of Article.2 has been absorbed into the

subjectivity of Article.856 thereby diminishing the assertion that Article.2 “constitutes an inalienable

attribute of the human person and that is form[s] the supreme value in the scale of human rights.” 57

50 ibid 754 51 ibid 750-53 52 Haas v Switzerland (n-35) Para 54 53 ibid Para 58 54 Pretty v United Kingdom (n-15) Para 65; See Koch v Germany (n-37) Para 51 and Gross v Switzerland (n-39) Para 58 55 See: Puppinck (n-1) 753-759 56 ibid 758 57 Pretty v United Kingdom (n-15) Para 65

8

The ‘supreme value’ is now personal autonomy. The Court has established this notion of ‘quality of

life’ on an individualistic conception of human dignity (H.D):58

“[I]n an era of growing medical sophistication, 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 ideals of self and personal identity.” 59

Therefore, one’s autonomy is constrained if forced to live in a state that conflicts with one’s such

“ideals.”60 Accordingly, these ‘ideals’ are individualistic resulting in a subjective measurement of the

quality of life.61 Consequently, this concept of H.D is not inherent but self-determined.62 Therefore,

in Koch and Gross the invalidity of one applicant and the old age of the other was held to impeded

the quality of their lives. As Houge reasons: “their dignity as human beings could therefore occur

preferentially choosing to wave existence rather than suffer a decline. The value of life is thus bound

to its quality.”63 The shift from life to the ‘quality of life’, leads to the demands for self-determination

and finally to a right to the quality of death as falling within the Scope of Article.8.64 However, the

Court’s application of H.D and in particular a ‘subjective’ H.D is contestable.

Despite its notable presence “in terms of quantity and quality” 65 and as a “foundation [in] the legal

reasoning of the Strasbourg Court in its rulings”66 the ECHR makes no reference to H.D. 67

Accordingly, its use as an interpretive tool is questionable.68

58 Puppinck (n-1) 755 59 Gross v Switzerland (n-39) Para 58 60 Puppinck (n-1) 755 61 ibid 62 ibid 63 ibid 64 ibid 65 Dupre (n-5) 85 66 Jean Paul Costa, “Human Dignity in the Jurisprudence of the European Court of Human Rights” in Christopher McCrudden (eds) Understanding Human Dignity (Oxford University Press) 393 67 Diaconescu, (n-10) 481; Costa (ibid) 393 68 Costa (n-66) 393

9

Given that the Convention is inspired by, the Universal Declaration of Human Rights (UDHR),69which

is founded on the “recognition of the inherent dignity of all members of the human family” and

speaks of the “inherent dignity of the person,”70 its absence is arguably the deliberate act of its

drafters to exclude it as an interpretative tool.71 Furthermore, Michael Rosen72 and John Harris73

have attacked the concept as “comprehensively vague”, with modern conceptions inheriting several

distinct strands of meaning74 thereby obscuring the Convention’s interpretation. McCrudden further

notes: “[F]or some, it is only a ‘smoke screen’ to hide the emptiness or disagreement on which human

rights are funded.”75 Accordingly, H.D should be excluded from the interpretation of the

Convention.76

However, in SW v U.K. 77 the Court formulated its commitment to protecting H.D as being the

“essence” of the ECHR78 and has subsequently referred to its “inviolability” to give greater normative

strength to H.D over even Article.2.79 Furthermore, Daly considers the inherency of H.D within all

human rights,80 Costa submits that notions of H.D were in the drafters’ minds81and Dupree applauds

how:

69 The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United Nations General Assembly on 10 December 1948; Puppinck (n-1) 755 70 Costa (n-66) 394 71 ibid 393 72 Michael Rosen, Dignity: Its History and Meaning (Harvard University Press 2012) 73 J.Harris, Is Cloning an Attack on Human Dignity? (Nature 1997); Harris, Clones, Genes and Immorality (Oxford University Press 1998) 74 J.Harris, Clones, Genes and Immorality (Oxford University Press 1998) 31; David Albert Jones, “Is Dignity Language Useful in Bioethical Discussion of Assisted Suicide and Abortion?” in Christopher McCrudden (eds) Understanding Human Dignity (Oxford University Press) 525 75 Christopher McCrudden, “Human Dignity and Judicial Interpretation of Human Rights.” (2008) Vol.19(4) The European Journal of International Law, 22 76 Costa, (n-66); Puppinck (n-1) 756-7 77 SW v The United Kingdom 1995 ECHR 52 78 SW v The United Kingdom (ibid) Para 101; See Dupre (n-5) 174 79 See Dupre (n-5) 174 80 Erin Daly, Dignity Rights: Courts, Constitutions and the Worth of the Human Person (University of Pennsylvania Press, 2013); Dupre (n-5) 85: “[A]lmost every aspect of human interaction and identity [can] be, in one way or another, translated and adjudicated in terms of human dignity.” 81 Costa (n-66) 394:“[E]specially because the very establishment of the Council of Europe in 1949 and the elaboration of the Convention […] The founding fathers of the European system of protection of right and freedoms shared the same philosophy as the authors of the Universal Declaration of Human Rights.”

10

“[R]eliance on human dignity makes discursive space to consider alternative and new ways of

interpreting the law, and […] therefore, provided judges with the key to unlock a difficult

situation and open un a new path in human rights protection.”82

Furthermore, Meyer asserts that the potential variations in meaning do not result in equivocation

but are “a family of concepts clustered around the practice of moral evaluation.”83 Moreover, Dupre

praises the concept’s flexibility and its use when resolving complex, present day situations:

“In practice, [H.D’s] transformative function arguably explains why it has been a key judicial

instrument for departing from established case law and precedent, opening up a new path in

an unchartered territory.” 84

Overall, reference to H.D has played an instrumental role in expanding the Convention’s scope of

protection.85 As Costa concludes, “the concept of human dignity in the Court’s jurisprudence

expresses a deliberate intention of building a bridge between the universal instruments and the silent

European text, filling the vacuum created by the authors of the Convention.”86 Therefore, H.D should

not be excluded from the Court’s interpretation of the Convention. The issue now lies in its

appropriate application.

According to Dwarkin: “[H.D] supposes that there are ways of treating a man that are inconsistent

with recognising him as a full member of the human community, and holds that such treatment is

profoundly unjust.”87 Regarding A.S:

82 Dupre (n-5) 159 83 M. Meyer, “The Simple Dignity of Sentient Life: Speciesism and Human Dignity” (2009) Vol.32(2) Journal of Social Philosophy 223, 240. 84 Dupre (n-5) 271-2 85 See for example: SW v The United Kingdom (n-77); Keenen v UK [2001] ECHR 239; Rasnstev v Cyprus and the Russian Federation App.25965/04 07 January 2010; Dordevic v Coratia [2012] ECHR 1640, Goodwin and I v UK Ap. 28957/95 11 July 2002. 86 Costa (n-66) 401 87 Ronald Dwarkin, Taking Rights Seriously (Harvard University Press, 1978) 198

11

“[H.D] has been in these debates, prompting those who want to maintain a ‘natural timing’

of death and dying, and those who want to make use of their last opportunity to be free and

control their life by controlling their death too.”88

According to Diaconescu: “[H.D] is based on the human being’s right to dignity and the right and

respect for his or her autonomy, self-determination of the subject with regard to his or her own

body.”89 Therefore, in adopting a ‘subjective’ perception of H.D, the Court’s position can be praised

as liberating those who no longer wish to endure life:

“If a person [suffering from a terminal illness or extreme disability] does not have access to

assisted suicide, then he or she is forced to endure the indignity of what is considered a

subhuman condition of life”90

However, proponents of A.S have generally restricted their efforts to “those suffering from terminal

and/or disabling conditions.”91 Yet, in Gross the applicant’s old age, as opposed to invalidity in Koch,

was viewed as interfering with her ‘quality of life.’92 Accordingly, the Court’s use of an individualistic

perception of H.D is perhaps a step too far.93 Furthermore, the Court’s adoption of a subjective,

rather than inherent, notion of H.D is contestable. As noted by Gatterer, an ‘inherent’ dignity is not

subjective94 and therefore, the Court is not adhering to same dignity as envisioned in the UDHR and

which inspired the ECHR.95 Arguably:

88 Dupre (n-5) 146 89 Diaconescu (n-10) 477 90 David Albert Jones. “Is Dignity Language Useful in Bioethical Discussion of Assisted Suicide and Abortion?” in Christopher McCrudden (eds) Understanding Human Dignity (Oxford University Press) 525, 530-31 91 ibid 92 See Puppinck (n-1) 93 However, see Ketreb v France Ap.38447/09 19th July 2012 where the Court considered that being young and healthy prevented Mr Ketreb’s desire to die from being accepted and instead reiterated the State’s obligation to “take necessary measures to protect the lives of those within its jurisdiction.” 94 Edeltraud Gatterer, Doc. 8421, Protection of the human rights and dignity in the terminally ill and dying, Report from Social, Health and Family Affairs Committee, 21/05/1999. This report led to the Parliamentary Assembly of the Council of Europe Recommendation 1418 (1999) which affirmed that the right to life of the sick and dying must be guaranteed even when they express the desire to die. 95 Puppinck (n-1)755

12

“in substituting the ‘inherent dignity’ for a relative dignity […] the Court radically modified

the ontological foundations of the Convention, that of universal to particular. The Court

removes from rights their objectivity by rendering them subjective, and therefore relevant to

their subject. [Therefore], the measure of human rights is no longer the human, but each

individual.”96

Furthermore, the Court’s position arguably fails to respect the dignity of each human life.97 This

‘Dignity as Life’ concept holds that killing contradicts the intrinsic dignity of human existence both in

respect of life itself and what life makes possible all individuals.98 Kant, for example, considers

suicide as the failure to respect the worth or dignity of human life in one’s own case.99 Accordingly,

the Court’s position directly contradicts these views. Additionally, disability rights movements

caution that:

“The desire for euthanasia is inseparable from the fear of dependence and loss of control, of

incontinence and dementia, in short, from the fear of disability. While this desire is expressed

as a wish ‘to die with dignity’, it implies that living in certain conditions is, per se,

indignity.”100

Therefore, the very act of judging a life with an impairment as being ‘undignified’ and therefore, “a

life unworthy to be lived”101 is not only discriminatory but humiliating towards those who live with

an impairment.102 Arguably, the Court’s position actually debases the very individuals it seeks to

liberate.

96 ibid 756 97 Jones (n-90) 529 98 ibid 99Immanuel Kant, Groundwork for the Metaphysics of Morals (2ND Revised Edition 1785, Translated by Mary J. Gregor and Jens Timmermann, Cambridge Texts in the History of Philosophy, 2012) 54, 67; Jones. (n-90) 530 100 Jones. (n-90) 531; See organisations “Not Dead Yet” and “Not Dead Yet UK”, a national, grassroots disability rights movement that opposes legalization of assisted suicide and euthanasia as deadly forms of discrimination. <http://notdeadyet.org/about> accessed 17/04/2016 <http://notdeadyetuk.org/> accessed 17/04/2016 101 Jones (n-90) 538 102 ibid

13

Overall, whilst opinions on the Court’s position are divided, “[H.D’s] role is […] to guide judges as

they venture into new territories.”103 Society’s understanding of death and dignity is evolving. As

such, the application of H.D within the Convention must evolve too, even if contentious.104

Nevertheless, the Court’s assertion of a ‘right to A.S’ is confronted with a further hurdle.

Article.2 does not contain a negative right to die and its exceptions interpreted restrictively.

Furthermore, Article.17 states that:

“Nothing in this Convention may be interpreted as implying […] any right to engage in any

activity or perform any act aimed at the destruction on any of the rights and freedoms set

forth herein or at their limitation to a greater extent than is provided for in the Convention.”

Therefore, Aritcle.8 cannot be interpreted as implying a new right that aims at the destruction of

Article.2.105 Ultimately, even when jurisprudentially absorbed in Article.8 the wording of Article.2

remains “no one shall be deprived on their life intentionally” and therefore, cannot be tolerated.

Despite adopting a ‘subjective’ H.D to broaden the scope of Article.8 and asserting that a ‘right to

A.S’ does not “[negate] the principle of the sanctity of life”106 one cannot accept the position of the

Court. However, “What if Article.2 […] also meant the right to live with dignity until, and including

the very end of one’s life, and not just the sanctity of life.”107 Overall, the issue is unresolved and the

Court’s position is contestable.

Nevertheless, States must guarantee “access to the effective enjoyment of the right”108 or justify its

restriction.109 This is the final aspect of the Court’s positon to be discussed.

103 Dupre (n-5) 159 104 ibid 105 Puppinck (n-1) 753-759 106 Pretty v United Kingdom (n-15) Para 65; See Koch v Germany (n-37) Para 51 and Gross v Switzerland (n-39) Para 58; Puppinck (n-1) 735 107 Dupre (n-5) 159 108 Puppinck (n-1) 751 109 Airey v Ireland Apl. 6289/73 9 October 1979 para 24

14

Controlling the ‘Right to Assisted Suicide’: A State’s Margin of Appreciation

The MofA is a “core principle controlling the ECtHR”.110 It is the “degree of discretion” afforded to

States that is invoked when there is “difficulty in identifying uniform European conceptions to the

extent of rights restrictions”111; the wider the MofA the greater the level of discretion afforded.112 A

lack of consensus suggests to the Court that the matter is likely best left to individual states:113

“[T]he absence of a consensus is probably a decisive factor in finding that there is a wide

margin of appreciation.” 114

Regarding A.S the Court considers that:

“State Parties to the Convention are far from reaching a consensus […], which points towards

a considerable margin of appreciation.” 115

On the one hand, a wide MofA is warranted. While “Switzerland, Belgium and the Netherlands each

have some form of permitted A.S” 116 they nevertheless, approach its regulation and accessibility

differently.117 Likewise, “although there is a strong and deeply rooted consensus against the legality

of assisted suicide, each country […] deals with the issue differently, or chooses not to address it at

all.”118 Furthermore, as Pridgeon notes, “[M]any states are divided internally on whether or not such

110 Howard Charles Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (Springer Publishers 1996) 13 111 Wada (n-2) 275 112 Karen Reid, A Practitioner’s Guide to the European Convention on Human Rights (Sweet and Maxwell 1998) 33 113 Ian Cameron and Maja Kirilova Eriksson, An Introduction to the European Convention on Human Rights (Lustus Förlag 1993) 45 and 74; Wada (n-2) 275 114 Cameron (n-113) 72-73 115 Koch v Germany (n-37) Para 70 116 Derek Huphrey, Assisted Suicide Laws Around the World Last updated October 2015 available at: http://www.assistedsuicide.org/suicide_laws.html 117 ibid 118 Wada (n-2) 287

15

procedures should be legalised.”119 Therefore, owing to the lack of consensus the Court correctly

affords a wide MofA on the issue.120

On the other hand, the Court’s position can be criticised. As acknowledged by the Parliamentary

Assembly of the Council of Europe in 1999121 and again in 2012,122 a broad consensus exists in the

prohibition of A.S.123 Questionably, the Court, omitting both documents, instead finds a lack of

consensus as to its legalisation. 124 Therefore, States must now justify restriction of the ‘right to A.S’

under Article.8(2) as being:

“[i]n 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.”125

Article.8(2) is considered “in accordance with the nature of the issues and the importance of the

interests at stake.”126 One such interest is “the risk of abuse inherent in a system that facilitates

access to assisted suicide.”127 Regarding the U.K.’s absolute prohibition of A.S the Court observes

that:

“The more serious the harm involved the more heavily will weigh in the balance

considerations of public health and safety against the countervailing principle of public

autonomy. The law […] was designed to safeguard life by protecting the weak and vulnerable

[…] it is the vulnerability of the class which provides the rational for the law in question. It is

119 Pridgeon (n-11) 45 120 Cameron (n-113) 72-73 121 See Recommendation 1418 (1999) of the Parliamentary Assembly of the Council of Europe. 122 See Resolution 1859 (2012) of the Parliamentary Assembly of the Council of Europe. 123 See Resolution 1859 (2012) of the Parliamentary Assembly of the Council of Europe. 124 Puppinck (n-1) 760 125 European Convention on Human Rights 1950 Article.8(2) 126 Labuschagne (n-7) 96 127 Haas v Switzerland (n-35) Para 58

16

primarily for States to assess the risk and the likely incidence of abuse [if] exceptions were

created.”128

Therefore, the U.K.’s legislative interference with Article.8 is considered proportionate to the aim

pursued129 and within its MofA.130 Indeed, instances of abuse have been reported in Belgium,

Switzerland and the Netherlands.131 Accordingly: “One individual’s ‘fundamental right to a dignified

life and a dignified death should not outweigh the risk of many lives”132 and the Court’s position is

warranted.

However, the weight afforded to this ‘fear of abuse’ is contestable. In the U.K. domestic case

Nicklinson v Ministry of Justice,133 Lady Hale’s dissenting opinion criticised the UK’s ‘blanket ban’134

on A.S:

“It would not be beyond the wit of the legal [and medical] system to devise a process for

identifying these people […] It fails to strike a fair balance between the rights of those who

have freely chosen to commit suicide but are unable to do so without some assistance and

the interests of the community as a whole.”135

From this perspective, the Court has afforded the State too much discretion. However, Lord

Neuberger, considers it: “impossible, at least on present material, to say with confidence in advance

that any such scheme could satisfactorily and appropriately be fashioned.”136 Therefore, the

potential for abuse should remain a critical factor when considering Article.8(2).

128 Pretty v United Kingdom (n-15) Para 74. Author emphasis added 129 The protection of individuals who would be vulnerable to abuse should A.S be permitted. 130 Pretty v United Kingdom (n-15) Para 74-78; See Draghici (n-9) 289 131 Final observations of the UN Human Rights Committee on the reports presented by the Netherlands, 25 August 2009, CCPR/C/NLD/CO/4 para 7; See also Puppinck (n-1) 739 132 Wada (n-2) 283 133 Nicklinson v Ministry of Justice [2014] UKSC 38 134 See: Draghici (n-9) 286 135 Nicklinson v Ministry of Justice (n-133) Para 314 and 317 136 ibid Para 186 and 188

17

Nevertheless, the Court’s acceptance of ‘blanket bans’ is further disputed. Dr Draghici has observed

how many other ‘blanket bans’ have been found incompatible with human-right guarantees

including: 137 irreducible life sentences;138 the prohibition of prisoners’ right to vote;139 and

prisoners’ lack of access to assisted reproductive facilities.140 Criticised as inflexible, they fail to take

into account the individual circumstances of an applicant and therefore, cannot be considered

proportionate to the legitimate aim pursued.141 Overall:

“The underlying tenant is transferable to [A.S.]; the law must be capable of responding fairly

to different individual circumstances, and public interest consideration cannot remove the

need to assess each case on its own merits.”142

Accordingly, A.S ‘blanket bans’ should be prohibited. However, a greater European consensus

existed regarding other bans thus enabling the Court to reduce the States’ MofA. Consequently,

‘blanket bans’ are permissible when there is a lack of consensus. Under this reasoning, the Court’s

acceptance of the UK’s A.S. ‘blanket ban’ is justified.

Finally, Lady Hale holds the U.K.’s failure to make allowances for exceptional cases, not its ‘blanket

ban’, as breaching Article.8: “It seems to me that […], the prohibition is justified. It is the lack of any

exception to meet the particular circumstances of the sorts of cases before us that is

incompatible.”143 Moreover, whilst “interference is necessary to prevent abuse to the detriment of

vulnerable people […] the assumption that a mentally competent, but bodily disabled, individual is to

be treated as a vulnerable person, whose personal autonomy must be restricted in the name of

137 Draghici (n-9) 286 138 Vinter v United Kingdom [2012] ECHR 61 139 See: http://www.echr.coe.int/Documents/FS_Prisoners_vote_ENG.pdf Firth and Others v United Kingdom [2014] ECHR 874; McHugh and Others v United Kingdom Ap.51987/08 10 February 2015 140 Draghici (n-9) 293 141 ibid 142 ibid 292-293 143 Nicklinson v Ministry of Justice (n-133) Para 186

18

protecting them, arguably amounts to moral paternalism.”144 In the U.K. suicide is legal yet,145

individuals who are physically unable to take charge of their bodies and perform the necessary

actions are prevented from its realisation. Thus the law discriminates against them. In Thlimmenos v

Greece146 the Court accepted Article.14147 as also covering reverse discrimination; treating

individuals whose situations are significantly different in the same way.148 However, having regard to

the State’s MofA “in assessing whether and to what extent differences in otherwise similar situations

justify a different treatment,”149 the Court considers that:

“[C]ogent reasons exist […] for not […] distinguish[ing] between those who are able and

those who are unable to commit suicide unaided. The borderline between the two categories

will often be very a very fine one and to seek to build into new law an exception […] would

seriously undermine protection of life.”150

Alternatively, as per Dickson v U.K. :151 “the possibility of justifying the restriction on applicants’

Convention rights by the minimal number of persons adversely affected is unacceptable.”152

Nevertheless, reiterating Lord Neuberger’s position,: “The most persuasive case [is that] those

capable of forming a free and informed decision to commit suicide and distinguish them from those

who might be vulnerable; [However] it is impossible […] to say […] that any such scheme could

satisfactorily and appropriately be fashioned.”153 The fear of abuse remains paramount.

144 Draghici (n-9) 296 145 The Suicide Act 1961 Section.1:

“Suicide to cease to be a crime. The rule of law whereby it is a crime for a person to commit suicide is hereby abrogated”

146 Thlimmenos v Greece (2001) Ap.34369/97 31 E.H.R.R. 147 Article.14: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 148 Thlimmenos v Greece (n-146) Para 411 149 Pretty v United Kingdom (n-15) Para 89 150 Pretty v United Kingdom (n-15) Para 89 151 Dickson v United Kingdom (2007) 44 E.H.R.R 21 152 ibid 153 Nicklinson v Ministry of Justice (n-133)Para 186 and 188

19

Overall, ‘blanket bans’ fail to consider the induvial circumstances of a case and are discriminatory.

However, without expunging fears of abuse or establishing a consensus on the issue, the Court

correctly asserts a wide MofA and permits States to implement “the safer- but certain to generate

injustice- blanket prohibition.”154 However, owing to the questionable foundations upon which the

‘right to A.S’ has been developed, the overall position of the Court is problematic. The only thing

clear about the Court’s ‘right to A.S’ is its legal ambiguity.

154 Draghici (n-9) 297

20

Bibliography

Cases

Airey v Ireland App.6289/73 9 October 1979

Dickson v U.K. App.00044362/04 4 December 2007; [2007] 44 E.H.R.R 21

Dordevic v Croatia App.41526/10 24 July 2012; [2012] ECHR 1640

Firth and Others v U.K. App.47784/09 12 August 2014; [2014] ECHR 874

Goodwin and I v U.K. App.28957/95 11 July 2002. Gross v Switzerland App.67810/10 14 May 2013

Haas v Switzerland App.31322/07, 20 January 2011

Keenan v U.K. App.27229/95 3 April 2001; [2001] ECHR 239

Ketreb v France App.38447/09 19 July 2012

Koch v Germany App.497/09, 19 July 2012

Laskey, Jaggard, and Brown v. U.K App.21826/93, 21627/93, 21974/93 19 February 1997; 24 Eur.

H.R. Rep. 39 (1997)

LCB v UK App. 23413/94 9 June 1998; [1998] ECHR 108

McCann v UK App.18984/91 6 October 1995; [1995] 21 EHRR 97

McHugh and Others v United Kingdom App.51987/08 10 February 2015 Nicklinson v Ministry of Justice [2014] UKSC 38

Osman v UK App.23452/94 28 October 1998; [1998] ECHR 101

Pretty v United Kingdom (GC) App.234/02 29th April 2002

Rasnstev v Cypris and the Russian Federation App.25965/04 07 January 2010

Rodriguez v British Columbia (AG) [1993] 3 S.C.R. 519

S v Makwanyane and Another (CCT3/94) [1995] ZACC 3

Schneider v Germany App.17080/07 15 September 2011

SW v The United Kingdom App.20166/92 22 November 1995; [1995] ECHR 52

Thlimmenos v Greece App.34369/97 6 April 2000 Tremblay v France App.37194/02 11 December 2007 Tysiac v Poland App.5410/03 20 March 2007 Vinter v United Kingdom App.66069/09, 130/10 and 3896/10 9 July 2013;

21

Washington v Glucksberg 521 U.S. 702, 710-12 (1997)

Legislation and Declarations

International

Universal Declaration of Human Rights 1948

Convention for the Protection of Human Rights and Fundamental Freedoms 1950

Domestic

Germany: German Penal Code Section 216

Switzerland: Swiss Penal Code Article 114 and 115

UK: Suicide Act 1961 (1961 CHAPTER 60 9 and 10 Eliz 2) 3 August 1961

Journals

Diaconescu, A.M, “Euthanasia” (2012) Vo.4(2) Contemporary Readings in Law and Social Justice, 474 Draghici, C. “The blanket ban on assisted suicide: between moral paternalism and utilitarian justice” (2015) European Human Right Law Review 286 Dupre, C. “Dignity, Democracy, Civilisation” (2012) Vol.33(3) Liverpool Law Review, 263 Jean Paul Costa, “Human Dignity in the Jurisprudence of the European Court of Human Rights” in

Christopher McCrudden (eds) Understanding Human Dignity (Oxford University Press) 393

Labuschagne, JMT. “The European Court of Human Rights and the right to assisted suicide in international human rights law.” (2004) Vol.17(1) South African Journal of Criminal Justice, 87 McCrudden, C. “Human Dignity and Judicial Interpretation of Human Rights.” (2008) Vol.19(4) The European Journal of International Law Meyer, M. “The Simple Dignity of Sentient Life: Speciesism and Human Dignity” (2009) Vol.32(2) Journal of Social Philosophy, 223 Pridgeon, J.L, “Euthanasia Legislation in the European Union: is a Universal Law Possible?” (2006) Vol.2(1) Hans Law Review, 45,46 Puppinick. G, and Houge. C, “The ‘Right’ to Assisted Suicide in the case law of the European Court of

Human Rights’ (2014) Vol.18(7-8) The International Journal of Human Rights, 735

Rustin-Petru CIASC, “Euthanasia, National and International Perspectives” (2013) Vol.9(2) Acta

Universitatis Danubius Juridica, 41

Wada, E. “A Pretty Picture: The Margin of Appreciation and the Right to Assisted Suicide” (2005)

Vol.27 Loyola of Los Angeles International and Comparative Law Review, 275

22

Books

Aharon Barak, Human Dignity: The Constitutional Value and the Constitutional Right (Cambridge University Press 2015) Catherine Dupre, The Age of Dignity (Hart Publishing 2015) David Albert Jones, “Is Dignity Language Useful in Bioethical Discussion of Assisted Suicide and Abortion?” in Christopher McCrudden (eds) Understanding Human Dignity (Oxford University Press) 525 Erin Daly, Dignity Rights: Courts, Constitutions and the Worth of the Human Person (University of Pennsylvania Press, 2013 Howard Charles Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (Springer Publishers 1996) J.Harris, Is Cloning an Attack on Human Dignity? (Nature 1997) J.Harris, Clones, Genes and Immorality (Oxford University Press 1998)

Jean Paul Costa, “Human Dignity in the Jurisprudence of the European Court of Human Rights” in

Christopher McCrudden (eds) Understanding Human Dignity (Oxford University Press) 393

Ian Cameron and Maja Kirilova Eriksson, An Introduction to the European Convention on Human

Rights (Lustus Förlag 1993)

Karen Reid, A Practitioner’s Guide to the European Convention on Human Rights (Sweet and Maxwell

1998)

Kant, I. Groundwork for the Metaphysics of Morals (2ND Revised Edition 1785, Translated by Mary J.

Gregor and Jens Timmermann, Cambridge Texts in the History of Philosophy, 2012)

Michael Rosen, Dignity: Its History and Meaning (Harvard University Press 2012) Ronald Dwarkin, Taking Rights Seriously (Harvard University Press, 1978)

R, Dwarkin, Life’s Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom

(Vintage Books 1994)

Howard Charles Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human

Rights Jurisprudence (Springer Publishers 1996)

Contributions to Edited Books

Gordijn, Bert, Ben Crul and Zbigniew Zylicz ‘Euthanasia and physician-assisted suicide’, in Ten Have, H. and Clark, D (eds.), The Ethics of Palliative Care: European perspectives (Buckingham, Open University Press, 2002), 182. Jones, D.A. “Is Dignity Language Useful in Bioethical Discussion of Assisted Suicide and Abortion?” in

Christopher McCrudden (eds) Understanding Human Dignity (Oxford University Press) 525

23

Jean Paul Costa, “Human Dignity in the Jurisprudence of the European Court of Human Rights” in

Christopher McCrudden (eds) Understanding Human Dignity (Oxford University Press) 393

Factsheets

European Court of Human Rights, “Factsheet- End of life and the ECHR”, July 2015 available at: <

http://echr.coe.int/Pages/home.aspx?p=press/factsheets>

Parliamentary Assembly of the Council of Europe

Recommendation 1418 (1999) Resolution 1859 (2012), 12 January 2012, Protecting human rights and dignity by taking into account

previously expressed wishes of patients.

Reports

Edeltraud Gatterer, Doc. 8421, Protection of the human rights and dignity in the terminally ill and

dying, Report from Social, Health and Family Affairs Committee, 21/05/1999.

Websites

Derek Huphrey, Assisted Suicide Laws Around the World Last updated October 2015 available at:

http://www.assistedsuicide.org/suicide_laws.html

“Not Dead Yet” <http://notdeadyet.org/about> accessed 17/04/2016

“Not Dead Yet UK” <http://notdeadyetuk.org/> accessed 17/04/2016