And punishing it criminally does not conflict with the Charter of Human Rights.
1. With an important decision published yesterday, the European Court of Human Rights confirmed that the principles of the European Convention on Human Rights do not imply the existence of a “right to assisted suicide”, and even more so of a “right to die”.
The decision rejected the appeal of the Hungarian citizen Daniel Karsai, in conditions of progressive deterioration, but not in a terminal phase.
Hungarian law punishes aiding suicide and allows the refusal of health treatments only in conditions of immediate terminal illness. The appellant complained that this national regulatory framework did not allow him to obtain the support he needed in order to end his life at the moment he deemed most appropriate according to his free self-determination. In detail, he contested that this limitation on one’s self-determination was in conflict with the conventional principles of respect for private and family life, non-discrimination, freedom of thought, conscience and religion, as well as even with the prohibition of torture.
The Court radically excluded the existence of such violations, confirming the full compliance with the European Convention on Human Rights of national regulations that protect the right to life, prohibiting assisted suicide and setting conditions for the refusal of life-saving treatments.
2. The decision, which confirms a consolidated jurisprudence of the Court, however, takes on particular importance first of all to confirm that there are no supranational constraints on introducing assisted suicide: the choices on the matter fall within the freedom of the States (paragraphs 145, 166).
To reach this conclusion, the reasoning of the decision appears particularly rich and interesting and marks a turning point in the jurisprudential debate on the topic, clarifying that it is not at all necessary to provide exceptions to the prohibition on assisted suicide (paragraphs 159-163) and thus calling into question approaches which, on the contrary, have deemed it legally indispensable to discriminate against the conduct of aiding suicide in some particular cases (thoughts turn to the Constitutional Court, no. 242/2019).
The European Court of Human Rights has examined the profound ethical and social implications of assisted suicide, concluding that criminally sanctioning it is “undoubtedly” an intrinsically legitimate measure, as it pursues the fully legitimate objectives of protecting the lives of vulnerable people at risk. of abuse, to maintain the full ethical integrity of the medical profession and also to protect the morals of society as a whole regarding the meaning and value of human life (para. 137).
These broad social implications of the topic – underlines the Court – can differ depending on the different values that characterize the civil life of the different national communities, they can therefore diverge from country to country and in each they are “undoubtedly” relevant and important. Depending on the values of the different national communities, they cannot but fall within the appreciation of the national authorities (para. 149).
This motivation is based on a legally-philosophically controversial fact, that is, the sociological and historical, rather than objective and intrinsic, foundation of the values inherent to the human person, which is also taken up elsewhere in the decision (e.g. par. 167). However, placing itself in this perspective, prevalent today, it provides arguments of particular importance to exclude any obligation, but also simply any opportunity, of standardization at a supranational, and especially European, level of a series of ethically sensitive topics, from that of the end of life to that of surrogacy, passing through that abortion, which in recent days some foreign states are trying to propagate as a universal right.
Furthermore, the decision is important to the extent that it expressly denies some objections, such as that relating to the alleged disparity in treatment of sick people dependent on life support compared to those who could decide to commit suicide without the need for the collaboration of third parties. The Court considered the difference in legal treatment justified by objective and rational reasons (para. 176). Functional to the motivation of the decision, but more controversial, appears the argument which supports a difference for this purpose of assisted suicide compared to the suspension of life support treatments: on a causal level, in fact, they can produce the same result, in the same way of active and passive euthanasia (par. 175).
3. It appears entirely coherent, in this context, to consider the choice of a State to punish assisted suicide to be fully rational and proportionate even if committed abroad, especially where a citizen of the State is involved. In fact, as observed by the Court, the intrinsic coherence between national criminal legislation and the ethical and moral values on which they are based constitutes a reasonable basis to justify the exclusion of any type of exception to the criminally sanctioned prohibition of assisted suicide and to punish it even if carried out abroad must not be considered either unusual or excessive (paragraphs 160, 161).
This motivation confirms, among other things, the full correctness also on a supranational level of the choice, which the Italian Parliament is making, to qualify maternity surrogacy as a universal crime.
4. Finally, of special importance are the considerations that the Court sets out in response to some of the appellant’s objections regarding the meaning of human suffering.
The Court was truly valiant in acknowledging that suffering “is part of the human condition and medical science will probably never be fully capable of eliminating it”. An opening towards the mystery and the profound meaning of suffering, and ultimately of human existence, which is particularly appreciable to read in a sentence of such a high level. In this way, it is excluded that the suffering of a terminally ill patient could, as such, create an obligation for the State pursuant to article 8 to legalize assisted suicide, while on the contrary the increased state of vulnerability of a sick patient terminal, an expression of that mystery of life and suffering to which the sentence refers, requires a profoundly human approach, which involves palliative care to be administered inspired by profound compassion and high medical standards (par. 158).
5. The Italian State intervened in the proceedings in support of Hungary’s reasons and the outcome of the judgment confirms that no argument can be drawn from European law in support of the introduction or expansion of assisted suicide.
This is a particularly important message in view of the decisions that the Constitutional Court will have to take shortly in relation to the art. 580 of the Italian penal code.
Francesco Farri
Below is the sentence:
CASE-OF-DANIEL-KARSAI-v.-HUNGARY
