Assisted suicide in German, Austrian, Italian, and Hungarian Constitutional Court practice¹

by | Cikkrészlet

with Nincs hozzászólás
Author:
Kinga Zakariás associate professor, Pázmány Péter Catholic University, Faculty of Law and Political Sciences; chief counselor, Constitutional Court of Hungary

Abstract

Shortening the dying process of people suffering from serious, incurable illnesses at their request or assisting their suicide raises significant legal questions, in addition to ethical, philosophical, religious, and medical issues, which have been answered differently by European constitutional courts in recent years. The European Court of Human Rights, in its judgment in the case of Dániel Karsai v. Hungary, published on 13 June 2024, acknowledged that there is an emerging trend towards decriminalising physician-assisted suicide, but noted that the majority of States Parties, including Hungary, continue to prohibit assisted suicide, and therefore States Parties have a margin of appreciation in allowing or criminalising assisted suicide. Thus, the framework for the fundamental rights assessment of assisted suicide can be drawn from the practice of national constitutional courts. In the analysis of the German, Austrian, Italian, and Hungarian assisted suicide decisions, I seek to answer the following questions: 1. Does the right to suicide exist, and, if so, from which fundamental right can it be derived? 2. Is there a right to request and receive assistance in suicide, and if so, from which fundamental right? 3. What is the scope of the State’s duty to protect life in the event of assisted suicide?

Keywords: right to human dignity, general right to personality, autonomy, right to self-determination, euthanasia, suicide, assisted suicide, freedom to commit suicide, state duty to protect life

I. Introduction

Shortening the dying process of people suffering from serious, incurable illnesses at their request or assisting their suicide raises significant legal questions, in addition to ethical, philosophical, religious, and medical issues, which have been answered differently by European constitutional courts in recent years. In its judgment published on 13 June 2024 in the case of Dániel Karsai v. Hungary[2], the European Court of Human Rights (ECtHR) recognised that there is an emerging trend towards decriminalising physician-assisted suicide, as access to physician-assisted suicide has been provided in some European countries over the last few years. In Germany, Austria, and Italy, this decision has followed decisions by constitutional courts. In contrast, the majority of States Parties, including Hungary, continue to prohibit assisted suicide. Therefore, the ECtHR considers that it is the job of the national authorities to assess whether physician-assisted suicide can be provided in their country. The ECtHR merely examines, in the context of the right to life and the right to respect for private life guaranteed by the European Convention on Human Rights (ECHR), whether the respondent State has exceeded its margin of appreciation, having regard to the particular circumstances of the case. The jurisprudence of the ECtHR also sets out the minimum level of the right to privacy and protection of life in relation to assisted suicide, as can be seen from the Austrian and Italian Constitutional Court decisions on assisted suicide, while also claiming that the ECHR does not apply to assisted suicide. Article 8 of the ECHR does not create a positive obligation to legalise physician-assisted suicide.[3] On the other hand, it has held that Article 2 of the ECHR does not prevent national authorities from authorising or ensuring physician-assisted suicide,[4] leaving the definition of assisted suicide uncertain. Therefore, in this paper, I seek to extract the fundamental rights framework for the assessment of assisted suicide from the decisions of the European Constitutional Court.

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[1] This research was carried out using the European Constitutional Communication Network (ECCN) database, within the framework of the research project of the Comparative Constitutional Law Research Group at the National University of Public Service, with the support of the AURUM Lawyers’ Club for Talented Students Foundation.

[2] ECtHR, Dániel Karsai v Hungary (32312/23), 13 June 2024.

[3] ECtHR, Dániel Karsai v Hungary (32312/23), 13 June 2024, 158.

[4] ECtHR, Dániel Karsai v Hungary (32312/23), 13 June 2024, 145.