Abstract
National regulatory frameworks for assisted dying vary from an absolute ban to rather liberal, albeit conditional, approaches to the practice of assisting patients in terminating their lives. jurisdictions that take a restrictive stance towards assisted dying emphasize the ‘absolute’ nature of the right to life, whereas states that exhibit a more permissive regime put more emphasis on the right to respect for private life, including in particular the right to self-determination at the end of life. Although the European Court of Human Rights uses the margin of appreciation in such a way as to avoid taking a normative stance on the issue of assisted dying, its case law comprises general rules that have to be complied with when regulating assisted dying. This article examines the reasoning of the Court in cases concerning assisted dying and discusses these rules as they apply to countries that have in place restrictive or permissive assisted dying regimes. This human rights framework will become increasingly important as more and more jurisdictions are introducing or considering legislation on assisted dying. Against this background, this article aims at providing insight into what is expected of national regulations, from a human rights perspective, in the context of assisted dying.
Introduction
Due to the controversial nature of assisted dying, there is a wide variety of approaches towards this phenomenon in the Member States of the Council of Europe. Many countries jurisdictions an absolute ban or accept only passive forms of assistance in dying (e.g. France), whereas some countries, of which Belgium and the Netherlands are known to be the most liberal, allow the practice of actively assisting patients in terminating their lives for different types of suffering. jurisdictions that have legalized assisted dying give prominence to the autonomy of the individual in avoiding an undignified end to their life, which flows from the right to respect for private life (Article 8 of the European Convention on Human Rights (ECHR)). Countries that prohibit assisted dying, by contrast, maintain that the right to life (Article 2 ECHR) is absolute.
This regulatory heterogeneity raises the question as to what human rights principles must be observed by the Member States of the Council of Europe when regulating assisted dying in one way or another. More specific questions that come to mind are as follows: Under what conditions can the right to respect for private life take precedence over the right to life? Can an absolute ban on assisted dying be proportionate? And, more generally, what discretion is awarded to the Member States when it comes to regulating assisted dying? These questions, which will be answered throughout this article, will continue to gain importance as more and more countries have introduced (e.g. Spain) or are considering (e.g. Portugal) legislation on assisted dying. Indeed, unlike a decade ago, when the only Member States to allow euthanasia and/or assisted suicide were the Netherlands, Belgium, and Luxembourg, lately assisted dying has been on the political agenda of numerous European countries. 1
Given that all Member States may have their own specific constitutional values and moral standards, the human rights approach to assisted dying within the Council of Europe cannot be one of striving for uniformity. Against this background, the European Court of Human Rights (ECtHR) is entrusted with the task of setting minimum standards of fundamental rights protection. 2 It thus develops general principles determining the minimum level of protection that is required. This article aims at disclosing these general principles with regard to assisted dying, so as to get a better understanding of what is expected of (existing and emerging) national legislation from a human rights perspective. By providing such guidance, this article aspires to serve as an incentive for national authorities to engage in a more informed debate.
Since 2002, the ECtHR has handed down five judgment relating to the ethically controversial issue of assisted dying: 3 Pretty v. UK 4 (2002), Haas v. Switzerland 5 (2011), Koch v. Germany 6 (2012), Gross v. Switzerland 7 (2013), and Lambert and Others v. France 8 (2015 and 2019). 9 Currently, these cases constitute the human rights framework concerning assisted dying. What stands out in this case law is the reluctance of the ECtHR to get involved in end-of-life matters. The Court primarily focuses on the lack of consensus within Europe to justify granting a wide margin of appreciation to the Member States to regulate assisted dying on their own territory. It thus adopts a very cautious approach and uses the margin of appreciation in such a way as to avoid taking a normative stance on the issue of assisted dying. Notwithstanding the large discretion that is left to the Member States, this article emphasizes that the aforementioned cases contain a number of human rights principles that are generally applicable to assisted dying cases. 10 As a consequence, Member States are obliged to put in place a legal framework that is compatible with these general principles.
This article first sheds light on the three human rights that come to the fore in assisted dying cases: the right to life, the prohibition of torture (or inhuman or degrading treatment), and the right to respect for private life. 11 It then focuses on the latter right and especially on the margin of appreciation that is attached to it, as the two first mentioned rights, in their negative conception, are ‘absolute’ rights, leaving no room for discretion. 12 This is different for the right to respect for private life, protected by Article 8 ECHR, which has been interpreted by the ECtHR as encompassing a right to choose when and how to die. 13 The second paragraph of Article 8 is a general limitation clause, which sets forth some requirements that need to be fulfilled for an interference with the right in the first paragraph to be justified. 14 In its case law on Article 8, the ECtHR appraises Member States’ compliance with these requirements. In general, it leaves a margin of appreciation to the national authorities to determine the proportionality or necessity of a restrictive measure. 15 And it is this margin of appreciation that plays a prominent role in the case law of the Court on assisted dying, which forms the third and largest part of this article. This third part begins by evaluating the general attitude of the ECtHR towards assisted dying and the approach it has adopted in the five assisted dying cases that have come before it. After these general conclusions, the article is centred on the distinction between Member States that allow some form of assisted dying and Member States that forbid assisted dying. This distinction makes it possible to conduct a more targeted analysis, limited to the relevant cases in respect of each of both ethical choices, and thus to draw specific conclusions for both sides of the legislative spectrum. It is concluded that, even though the Court is very reluctant in its review and the Member States enjoy a wide margin of appreciation to regulate assisted dying, the Court’s case law comprises general rules for both restrictive and permissive 16 national regulatory frameworks that have to be complied with when regulating assisted dying.
Three relevant human rights
Pretty v. UK
17
(2002), the first assisted dying case that came before the ECtHR, immediately highlighted the three human rights that are relevant or predominant in cases regarding assisted dying. The applicant relied on Articles 2, 3, 8, 9, and 14 of the ECHR to challenge the blanket ban on assisted suicide in the United Kingdom and the refusal of the Director of Public Prosecutions to grant immunity from prosecution to her husband if he assisted her in committing suicide, which she was not able to do on her own because she suffered from motor neurone disease (MND).
18
Whereas the Court’s considerations about the freedom of thought, conscience, and religion (Article 9), and the prohibition of discrimination (Article 14) were highly concise,
19
the bulk of its reasoning was devoted to the right to life (Article 2), the prohibition of torture or inhuman or degrading treatment (Article 3), and the right to respect for private life (Article 8).
20
Although each of these three provisions is considered to be relevant with respect to assisted dying,
21
in its subsequent case law, the ECtHR focused on (the fair balance between) the right to life and the right to respect for private life. The rationale behind this more explicit focus on the latter two rights can be found in Pretty, where the Court, emphasized the interconnection between Articles 2 and 3 ECHR: Article 3 must be construed in harmony with Article 2, which hitherto has been associated with it as reflecting basic values respected by democratic societies. [. . .] Article 2 of the Convention is first and foremost a prohibition on the use of lethal force or other conduct which might lead to the death of a human being and does not confer any right on an individual to require a State to permit or facilitate his or her death.
22
Both the right to life and the prohibition of torture are ‘absolute’ rights (in their negative conception), which means they leave no room for discretion. 23 Hence, the Member States are not given any leeway to decide on depriving someone of life nor to engage in torture. However, as important as the right to life is in end-of-life matters, the main complaint in almost every assisted dying case is the alleged breach of Article 8 ECHR. Applicants usually claim that this Article includes the right to choose when and how to die. 24 In contrast to the non-derogable rights in Articles 2 and 3 ECHR, the right to respect for private life in Article 8 ECHR can be legitimately interfered with if the conditions laid down in Paragraph 2 of that Article are fulfilled. Article 8 ECHR thus leaves some discretion to the Member States, but this discretion is conditional. More specifically, a restriction of the right to respect for private life must meet the conditions of legality, legitimacy, and proportionality. 25
In view of the highly controversial nature of assisted dying and, as a result, the lack of consensus between the Member States, it is not surprising that the ECtHR gives a key role to the margin of appreciation contained in the proportionality test of Article 8 ECHR. That is why we first need to outline the margin of appreciation doctrine in the case law of the ECtHR.
Article 8 ECHR and the margin of appreciation: finding a way out of the dilemma
General limitation clause (Article 8(2) ECHR)
As mentioned, a general limitation clause has been included in the second paragraph of Article 8 ECHR. It lays down requirements that need to be fulfilled for an interference with the right to respect for private life to be justified. 26
The first requirement is that of legality 27 : the restriction must be prescribed by law. 28 In the Convention, ‘law’ is perceived as an autonomous concept, independent of the meaning that is given to it in the national legal systems of the Member States. 29 It must be interpreted in a substantive way; the ECtHR does not require the restriction to have a basis in formal law. 30 The requirement of legality consists of three sub-requirements:
The requirement of a legal basis: the restriction must have some basis in national law. 31
The requirement of accessibility, which means that ‘the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case’. 32 The Court considers this requirement to be met when the rules have been properly published. 33 Nonetheless, a lack of publication of rules can be acceptable, provided that the restriction is sufficiently foreseeable (the third sub-requirement), for example, because the legal rule is complemented with an established practice. 34
The requirement of foreseeability is the crucial one. 35 It requires that individuals must be able to foresee with sufficient certainty what kind of restrictions apply to the exercise of their fundamental rights, so that they can adjust their behaviour accordingly. 36 When it comes to restrictions included in general regulations, the Court recognizes that some vagueness might be inevitable and even indispensable to attain general applicability. 37 However, sometimes provisions are so vague that it is impossible to grasp their real meaning and scope. In that case, the interpretation or clarification of the relevant provision by the national courts will be an important factor for the ECtHR. 38
The second requirement that restrictions of fundamental rights must meet in order to be in accordance with the Convention is that of legitimacy; the restriction has to pursue a legitimate aim. 39 More specifically, Article 8(2) ECHR permits interference with private life ‘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’. Considering that this list of criteria is sufficiently large to cover most government activity, the ECtHR usually assumes a measure to be suitable to achieve one of the aims listed in Article 8(2) ECHR. 40
Most of the Court’s decisions concerning the second paragraph of Article 8 ECHR revolve around the third requirement, the proportionality (or necessity) of the restriction. This requires the restriction to be necessary to achieve the aim pursued, which entails that the national authorities must have struck a fair balance between the competing interests of the individual and of society.
41
The proportionality requirement is referred to in Article 8(2) ECHR as ‘necessary in a democratic society’, a phrase that has been specified in respect of the analogous requirement in Article 10(2) in the Sunday Times judgment: It must now be decided whether the ‘interference’ complained of corresponded to a ‘pressing social need’, whether it was ‘proportionate to the legitimate aim pursued’, whether the reasons given by the national authorities to justify it are ‘relevant and sufficient under Article 10 (2) (art. 10-2)’ [. . .].
42
However, the case law of the Court is not consistent in its review of the proportionality requirement; in some cases, the Court examines whether a ‘pressing social need’ exists, in others it explores whether the same objective could have been achieved by less severe measures. 43
In applying (any formulation of) the proportionality test, the ECtHR generally allows the Member State concerned a margin of appreciation. 44 Depending on the subject, Member States are granted more or less discretion to determine the proportionality or necessity of a domestic measure. Given the importance of the margin of appreciation in assisted dying cases, it is necessary to briefly elucidate the application of the margin of appreciation doctrine in the case law of the Court before proceeding with our analysis of the case law on assisted dying.
Margin of appreciation doctrine
The margin of appreciation refers to a level of discretion that is awarded to the Member States in determining what degree of interference with fundamental rights is proportionate. 45 It enables the ECtHR to reconcile its goal of ensuring a high level of human rights protection with the need to respect the cultural, political, and social differences between the Member States. 46 The existence of the margin of appreciation doctrine indicates that the Court believes there is no ultimate solution to the question as to how to strike a fair balance between a Convention right and other rights or the public interest. 47 It will rather check whether the way in which a Member State has struck the balance is a possible solution that corresponds to the wording and the objectives of the ECHR and thus whether the national authorities have stayed within their margin of appreciation. 48
The margin of appreciation doctrine is founded upon the subsidiary position of the ECtHR vis-à-vis the Member States.
49
This means that it is first and foremost up to the Member States to choose the measures which they consider appropriate in matters which are governed by the Convention; the review by the Court concerns only the conformity of these measures with the requirements of the Convention.
50
In essence, the Court’s task is confined to verifying whether the Member States have remained within the boundaries of their discretion.
51
The implications of the subsidiary nature of the Convention mechanism for the Court’s jurisprudence have been clearly stated by the Court in a judgment regarding an alleged violation of Article 10 ECHR (freedom of expression): The Convention leaves to each Contracting State, in the first place, the task of securing the rights and liberties it enshrines. [. . .] [I]t is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of ‘necessity’ in this context. Consequently, Article 10 para. 2 (art. 10-2) leaves to the Contracting States a margin of appreciation. [. . .] Nevertheless, Article 10 para. 2 (art. 10-2) does not give the Contracting States an unlimited power of appreciation. The Court [. . .] is empowered to give the final ruling on whether a ‘restriction’ or ‘penalty’ is reconcilable with freedom of expression as protected by Article 10 (art. 10). The domestic margin of appreciation thus goes hand in hand with a European supervision.
52
The ECtHR uses the margin of appreciation doctrine to determine the intensity of its review. 53 In this respect, it distinguishes between a wide and a narrow margin of appreciation. 54 This distinction results in a sliding scale (of intensity of review), ranging from a lax standard of proportionality to an intense proportionality appraisal. 55 If the national authorities are allowed a wide margin, the Court only marginally and reticently examines the choices made by the national authorities, in that it merely assesses whether the result is manifestly unreasonable or disproportionate, or places an excessive burden on the applicant. 56 The reluctance of the Court in these cases is often reflected in a strong procedural review, whereby it will generally not find a violation of the ECHR if it finds that the case has been carefully assessed by the national authorities. 57 If, by contrast, the margin of appreciation is a narrow one, the review will be very strict: in these cases, the Court generally closely appraises the facts of the case, carefully identifying the interests at stake and deciding for itself how the balance between the conflicting interests should have been struck. 58 The national authorities then bear the burden of proving that the restrictive measure is based on a careful and objective assessment of all relevant facts and interests and, more generally, that the restriction is reasonable. 59 Moreover, the Court will be more inclined to consider the availability of less intrusive measures and to criticize the lack of specific procedural safeguards against abuse of powers. 60
To determine the breadth of the margin of appreciation that is accorded to the Member States and, consequently, the intensity of the review, the ECtHR takes into account several factors. The first is the ‘common ground’ factor: the existence or non-existence of a consensus (or common ground) within the Member States of the Council of Europe. 61 The existence of a clear consensus about a particular issue will result in a narrow margin of appreciation and therefore a stricter review by the ECtHR. 62 If, on the other hand, there is no, or hardly any, consensus between the Member States, the Court will accord a wide margin of appreciation. 63
Another factor is the ‘better placed’ argument: the Court often confers a wide margin of appreciation to the national authorities because they are in a better position to assess the necessity, suitability, proportionality or overall reasonableness of restrictive measures. 64 This factor has proven to be of particular significance in ethical matters. 65 Examples of cases in which the ECtHR has exercised restraint includes cases concerning adoption and in vitro fertilization (IVF), gay marriage and, particularly, abortion. 66 In these cases, the Court invariably argues that the national authorities are better placed to discern the prevailing concerns about these kind of ethically controversial issues and that they must therefore be given sufficient leeway to decide on the necessity of certain measures or policy choices.
Finally, the ECtHR attaches great importance to the nature of the affected right and its importance for the individual. 67 In principle, whenever an important aspect (the ‘core’) of an individual right is at stake, the margin of appreciation will be narrow. 68 The closer an aspect of a Convention right is related to the fundamental principles of the ECHR, including human dignity, personal autonomy, democracy, and pluralism, the more important it is. 69 In this context, the Court generally leaves only a narrow margin of appreciation if a restrictive measure affects the most intimate or sensitive aspects of someone’s life, such as someone’s sexuality, 70 because in such cases, the notion of personal autonomy is of major importance. 71
As will be outlined below, the ‘common ground’ factor has been accorded a pivotal role in the case law of the ECtHR on assisted dying, enabling the Court to make extensive use of the margin of appreciation. Nevertheless, this case law has yielded some general rules (i.e. human rights principles) for national regulatory frameworks, either allowing some form of assisted dying or endorsing a total ban on assisted dying. Before elaborating on the human rights principles that must be complied with by restrictive or permissive regimes, this article will first throw outline some general conclusions that can be drawn from the Court’s reasoning in assisted dying cases. These general findings relate to the attitude of the ECtHR towards assisted dying and the overall approach it has adopted in these cases, including the manner in which it has applied the margin of appreciation doctrine.
How the ECtHR deals with assisted dying cases
General attitude and approach
As indicated above, to date only five applications concerning assisted dying have resulted in a judgment on the merits being delivered by the ECtHR: Pretty v. UK
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(2002), Haas v. Switzerland
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(2011), Koch v. Germany
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(2012), Gross v. Switzerland
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(2013), and Lambert and Others v. France
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(2015 and 2019). Pretty and Koch concern restrictive assisted dying regimes, whereas Haas, Gross, and Lambert pertain to national frameworks that allow some form of assisted dying. The common thread in these five cases is the cautious approach of the Court: due to the controversy surrounding, and the lack of consensus about, assisted dying, the Court has chosen to exercise restraint; it doesn’t want to take a definite stand on the issue of assisted dying.
77
What is clear, though, is that the Court has never expressed opposition to assisted dying as such.
78
Immediately after Pretty, a case regarding a blanket ban on assisted suicide, the conclusion seemed to be that Member States may prohibit assisted dying, but not that they must do so.
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After Gross, Stephen Brown went a step further by declaring that the Court is ‘inexorably moving towards acceptance of a universal right to die’.
80
In support of this contention, he stated that [w]hile this right will not manifest itself until individual state legislatures have established a domestically-recognized right to die, the Court has indicated that it will create no impediments when that time comes.
81
Likewise, Gregor Puppinck and Claire de La Hougue proclaim to have noticed a gradual shift towards recognition of a ‘right to assisted suicide’ in the case law of the ECtHR. 82 It is indeed true that the case law of the Court has developed from not ruling out the argument that the right to respect for private life encapsulates the right to choose when and how to die (Pretty, 2002) to full acceptance of the applicability of Article 8 ECHR to assisted dying cases (Haas, 2011). 83 In any event, the Court has been happy to highlight its subsidiary position in matters regarding assisted dying, as it must duly respect national majoritarian values inherent in democratic legislative measures. 84 this subsidiarity approach has made it possible to allow a blanket ban on assisted suicide as well as national laws that regulate assisted dying in one way or another.
The ECtHR has seemingly preferred to limit its involvement in assisted dying cases to a procedural review focusing on the quality of the national judicial and parliamentary process of decision-making. 85 Through a procedural approach, the Court wants to ensure that rights granted in domestic law are ‘practical and effective’, without commenting on the substance of the domestic law. 86 With regard to the latter, it is clear from the case law that the Court only intervenes once a Member State considers the practice of assisted dying to be legal in certain circumstances; only then it will impose procedural requirements. 87 As long as a Member State prohibits assisted dying, the Court prefers to stay out of the controversy. 88 This means that Member States that allow some form of assisted dying bear a greater legislative burden to clearly define their procedural requirements. 89
As pointed out, the ECtHR has developed its case law on assisted dying on the basis of (the margin of appreciation contained in the proportionality test of) Article 8 ECHR, which it usually balances against, or complements with, Article 2 ECHR. 90 In this context, the right to respect for private life is perceived as a right to personal autonomy, 91 which, in turn, comprises the right to choose when and how to die. 92 Hence, the question is no longer whether such a right exists, but rather to what extent a Member State can restrict the exercise of this right, because once domestic law recognizes the right to assisted dying, that right cannot remain purely ‘theoretical and illusory’. 93
Application of the margin of appreciation
In dealing with cases concerning assisted dying, the ECtHR has relied to a very great extent on the margin of appreciation. 94 Since national regulatory frameworks for assisted dying vary from an absolute ban to rather liberal, albeit conditional, approaches to the practice of assisting patients in terminating their lives, the Court mainly focuses on the lack of consensus within Europe to conclude that Member States enjoy a wide margin of appreciation to justify restrictions of the right to choose when and how to die, resulting from Article 8 ECHR. 95 As explained above, a wide margin of appreciation goes hand in hand with a cautious, strong procedural review, applying a lax standard of proportionality. 96 In other words, it is essentially through the application of the margin of appreciation doctrine that the ECtHR has found a way to avoid getting too involved in the debate on assisted dying.
Regulating assisted dying: general rules
Notwithstanding the reluctance of the ECtHR and the wide margin of appreciation that is accorded to the Member States, the case law of the Court comprises general rules for both restrictive and permissive national regulatory frameworks. These general rules are the human rights principles that have to be complied with when regulating assisted dying. Considering that the ECtHR only imposes procedural requirements on Member States that have legalized assisted dying in some way, it goes without saying that the human rights principles that must be complied with by Member States that prohibit assisted dying will be less stringent than those that need to be observed by Member States that allow some form of assisted dying. To give a clear overview of both sets of human rights principles, a distinction will be made between the cases relevant for Member States that forbid assisted dying and the cases containing general rules for Member States that allow some form of assisted dying. This distinction allows us to conduct a more targeted analysis, singling out the relevant human rights principles that apply to restrictive regimes and those that apply to permissive regimes.
Human rights principles for restrictive regimes
In respect of Member States that prohibit assisted dying, the analysis of the human rights framework is limited to two cases: Pretty v. UK 97 and Koch v. Germany 98 . In terms of content, however, the case of Koch is of little relevance for this analysis (because it solely concerns the procedural aspect of Article 8 ECHR), 99 yet in some respects, the reasoning in Koch adds to the human rights principles that can be derived from Pretty. For that reason, the case of Koch will only be referred to insofar as it comprises elements that are complementary to the conclusions that can be drawn from the case of Pretty.
Diane Pretty was a woman who was in the advanced stages of MND, causing her to become paralysed from the neck down. MND is an untreatable, progressive neuro-degenerative disease that affects the voluntary muscles of the body and usually results in death due to respiratory failure. However, Pretty’s ability to make decisions was unimpaired. As she was afraid of the suffering and indignity that she would have to endure if the disease reached her very final stages, she wanted to control how and when she died, but her physical condition prevented her from committing suicide without assistance. Her husband wanted to assist her, but, while it was not a crime to commit suicide under English law, the Suicide Act of 1961 imposed (and still imposes) criminal liability on anyone assisting in suicide. Since Pretty did not want her husband to be prosecuted, her attorney wrote to the Director of Public Prosecutions (DPP) with a request not to prosecute Pretty’s husband should he assist her in committing suicide. When the DPP refused to abstain from prosecution, Pretty applied for judicial review of the DPP’s decision. However, both the Divisional Court and the House of Lords (on appeal) upheld the decision of the DPP. Eventually, Pretty brought the case before the ECtHR, alleging that the refusal of the DPP to grant an immunity from prosecution to her husband and the prohibition in domestic law on assisting suicide infringed her rights under Articles 2, 3, 8, 9, and 14 of the Convention.
According to Pretty, Article 2 ECHR protected not only the right to life but also the right to choose not to go on living. Put differently, she argued that the right to life included a right to die.
100
The Court dismissed this claim, emphasizing that no right to die could be inferred from Article 2 ECHR: The Court is not persuaded that ‘the right to life’ guaranteed in Article 2 can be interpreted as involving a negative aspect. [. . .] [Article 2] is unconcerned with issues to do with the quality of living or what a person chooses to do with his or her life. To the extent that these aspects are recognised as so fundamental to the human condition that they require protection from State interference, they may be reflected in the rights guaranteed by other Articles of the Convention [. . .]. Article 2 cannot [. . .] be interpreted as conferring the diametrically opposite right, namely a right to die; nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life.
101
By explicitly excluding the existence of a right to die and a right to self-determination under Article 2 ECHR, the ECtHR made it clear that Article 2 cannot be relied on to oppose a restrictive assisted dying regime. 102 However, the Court was willing to accept that the blanket ban on assisted suicide constituted an interference with Pretty’s right to respect for private life as guaranteed under Article 8 ECHR, as she was prevented by law from exercising her choice to avoid what she considered would be an undignified and distressing end to her life. 103 More generally, it was established in Pretty 104 (and reaffirmed in Koch 105 ) that Article 8 ECHR encompasses a right to personal autonomy in making end-of-life decisions. 106 An interference with the exercise of that right cannot be justified unless it meets the conditions set out in Paragraph 2. Since the prohibition of assisted suicide was imposed by law and in pursuit of the legitimate aim of safeguarding life and thereby protecting the rights of others, the only issue in the Pretty case was the proportionality of the interference. 107 In this respect, the applicant attacked the blanket nature of the ban on assisted suicide because it failed to take into account her situation as a mentally competent adult who had made a fully informed and voluntary decision, and thus could not be regarded as vulnerable and requiring protection. 108 However, three factors convinced the ECtHR of the proportionality of the blanket ban. First, the law in question unequivocally reflected the importance of the right to life, as it was designed to safeguard life by protecting the weak and vulnerable, particularly those who are not in a position to take informed decisions against acts intended to end life or to assist in ending life. Second, it was primarily up to the States to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicide were relaxed or if exceptions were to be created. Third, since consent was needed from the DPP to bring a prosecution and the law provided for a maximum sentence, enabling lesser penalties to be imposed as appropriate, the system allowed due regard to be given in each particular case to the public interest in bringing a prosecution. 109
The way in which the Court assessed and confirmed the compliance of the domestic measure with the requirements of legality, legitimacy, and proportionality creates the human rights framework that must be respected by the Member States to justify an interference with the right to personal autonomy, protected by Article 8 ECHR. More specifically, a limitation of the right to choose when and how to die must meet the following requirements:
The restriction must have a clear legal basis. In Pretty as well as in Koch, the restrictive measure was based on a criminal law provision.
The restriction must pursue a legitimate aim. In Pretty, the ECtHR accepted that an interference with the right to personal autonomy could be imposed in pursuit of the legitimate aim of safeguarding life and thereby protecting the rights of others, especially the most vulnerable. The importance of pursuing a legitimate aim was further corroborated in Koch, where the Court ruled that the interference with the applicant’s right didn’t serve any of the legitimate aims enumerated in the second paragraph of Article 8 ECHR. It can be established from this case law that a restriction of the right to self-determination, even if it takes the form of a blanket ban, can legitimately be imposed with a view to protect the rights of others.
The restriction must be necessary to achieve the (legitimate) aim pursued (requirement of proportionality).
Given that a blanket ban on assisted suicide has been considered proportionate, it is difficult to imagine circumstances that would lead to a violation of the proportionality requirement. This is especially true in the light of the wide margin of appreciation that is accorded to the Member States, the conviction of the Court that it is up to the national authorities to assess the risk of abuse in the event of a relaxation of the prohibition, and the overall caution of the Court in cases concerning assisted dying. As long as a domestic measure restricting the right to choose when and how to die has some basis in national law and has been imposed to protect the rights of others, in particular the most vulnerable, the Court prefers not to get involved.
Even though the ECtHR did not really discuss the margin of appreciation in any detail in Pretty, it is still presumed to have been a decisive factor behind the judgment. 110 After all, it follows from the Court’s reasoning that it does not recognize restrictions of the desire to choose the time and manner of one’s death as affecting a core area of personal autonomy. 111 The ECtHR thus implicitly tilted the balance in favour of the right to life, as safeguarded by national law. Moreover, in Koch, although the Court did not examine the substantive aspect of Article 8 ECHR, it could not resist referring to the lack of consensus between the Member States, pointing towards a considerable margin of appreciation for the national authorities. 112
Taking all of the above into consideration, the conclusion with respect to restrictive regimes can best be summarized as follows: when a fundamental right such as the right to life is at stake, other provisions of the ECHR that conflict with it will hardly ever be successfully invoked. 113 As long as the ECtHR has verified the legality and the legitimacy of the domestic measure, the proportionality will always be a matter left to the Member States.
Human rights principles for permissive regimes
In relation to permissive assisted dying regimes, the human rights framework looks quite different; the line of reasoning that is used by the Court in Haas v. Switzerland 114 , Gross v. Switzerland 115 , and Lambert and Others v. France 116 differs significantly extent from the one used in Pretty (and Koch). Although the (quite conservative) assisted dying landscape in France is not comparable to the (relatively liberal) one in Switzerland, 117 all three cases revolve around permitting some form of assisted dying. While the two cases against Switzerland were initiated by applicants who wanted to commit suicide with the assistance of a Swiss right-to-die organization (respectively, Dignitas and EXIT), the case against France concerned the withdrawal of artificial life-sustaining treatment, sometimes referred to as ‘passive euthanasia’. 118 Since the overarching human rights principles that can be extracted from Lambert are transposable to cases of euthanasia and assisted suicide, no distinction will be made between the different forms of assisted dying. 119
In Haas, the applicant had been suffering from a bipolar affective disorder for about 20 years. He asked Dignitas to assist him in ending his life, because, in his experience, his illness made it impossible for him to live with dignity. He approached several psychiatrists to obtain 15 g of sodium pentobarbital (the necessary lethal substance), which was only available on prescription, but he was unsuccessful. He then contacted various official bodies seeking permission to procure sodium pentobarbital from a pharmacy without a prescription, but all of his requests and subsequent appeals were dismissed on the ground that sodium pentobarbital could only be obtained on prescription. As a last resort, Haas sent a letter to 170 psychiatrists to ask them whether they would agree to see him for the purpose of carrying out a psychiatric examination and with a view to issuing a prescription for sodium pentobarbital, but they all refused. Before the ECtHR, he alleged that his right to choose the time and manner of his death (Article 8 ECHR) was not respected, as the requirement of a medical prescription made it impossible for him to die with dignity.
The applicant in Gross 120 had never been seriously ill, but she had been experiencing a decline in her physical and mental faculties. She wanted to end her life by taking a lethal dose of sodium pentobarbital and contacted EXIT for assistance, but the organization replied that it would be difficult to find a medical practitioner who would be ready to provide her with a medical prescription for the lethal drug. This turned out to be true: since Gross didn’t suffer from any illness, all medical practitioners believed that this was prohibited by the code of professional medical conduct and declined to issue the requested prescription. She then asked the Health Board of the Canton of Zurich to be provided with 15 g of sodium pentobarbital without a medical prescription, but her request was rejected, as were her subsequent appeals. The Federal Supreme Court considered that there was no (positive) obligation enjoining the State to guarantee an individual’s access to a lethal substance in order to allow them to die in a painless way and without the risk of failure. It further observed that the applicant did not fulfil the prerequisites laid down in the medical ethics guidelines on the care of patients at the end of life adopted by the Swiss Academy of Medical Sciences, as she was not suffering from a terminal illness. Taking the case to the ECtHR, the applicant complained that the Swiss authorities had violated her right to choose when and how to die (Article 8 ECHR) by depriving her of the possibility of obtaining a lethal dose of sodium pentobarbital.
In Lambert, the applicants were the parents, a half-brother, and a sister of Vincent Lambert. The latter had been involved in a road accident in September 2008, leaving him tetraplegic and in a state of complete dependency. For many years, his family had been divided on the question of whether he should be kept alive: Vincent’s wife, Rachel, and six of his eight brothers and sisters advocated the discontinuation of artificial nutrition and hydration, whereas the applicants were in favour of continuing. Dr Kariger’s announcement that he intended to discontinue artificial nutrition and hydration on 13 January 2014, because in his view prolonging Vincent’s life by continuing his artificial nutrition and hydration would amount to unreasonable obstinacy, marked the beginning of a lengthy legal battle over Vincent’s fate. Eventually, the case ended up before the Conseil d’État, which concluded that the various conditions imposed by law had been met. Therefore, Dr Kariger’s decision to withdraw the artificial nutrition and hydration was lawful. The applicants brought the case to the ECtHR, which emphasized that, although the applicants lacked standing to allege a violation of Articles 2, 3, and 8 ECHR in the name and on behalf of Vincent Lambert, it was willing to examine all the substantive issues arising under Article 2 ECHR, given that they were raised by the applicants on their own behalf.
Whereas in claims against Member States that prohibit assisted dying the ECtHR precluded applicants from relying on Article 2 ECHR, it emphasized the need to read the Convention as a whole in cases against Member States that allow some form of assisted dying. 121 This entails that, in the context of examining a possible violation of Article 8 ECHR, reference should be made to Article 2 ECHR (and vice versa). 122 . Article 2 sheds a different light on the interpretation of Article 8, as it obliges the national authorities to protect vulnerable persons (even against actions by which they endanger their own lives) and, more specifically, to prevent an individual from taking his or her own life if the decision has not been taken freely and with full understanding of what is involved. 123
These observations immediately disclose the first human rights principle that Member States with a permissive regime must adhere to: they are under an obligation to protect vulnerable persons, which in practice means that the Member State concerned has to put in place enhanced protective measures for vulnerable persons. The ECtHR highlighted this requirement in Haas by explicitly pointing out that the Swiss measure, that is, the requirement to obtain a medical prescription, pursued the legitimate aims of ‘protecting everybody from hasty decisions and preventing abuse, and, in particular, ensuring that a patient lacking discernment does not obtain a lethal dose of sodium pentobarbital’. 124 As was the case in Pretty, the risk of abuse plays a fundamental role. After all, the Court regards such protective measures as indispensable due to the risks of abuse inherent in a system that allows assisted dying. 125 In this way, it accentuates the overall importance of safeguards aimed at minimizing the potential risks of abuse in the context of assisted dying. 126
By recognizing these risks and acknowledging that the Swiss measure was designed to protect public health and safety and to prevent crime, the ECtHR instantly emphasized the second human rights principle, namely that Article 2 ECHR obliges the Member States to establish a procedure capable of ensuring that a decision to end one’s life corresponds to the free will of the individual concerned. 127 This principle was reaffirmed in Lambert, where the ECtHR put the patient’s wishes in the decision-making process at the heart of its judgment. 128 The Court attached great importance to the fact that the French judiciary believed it to be sufficiently proven that Vincent had voiced the wish not to be kept alive artificially in a highly dependent state. This convinced the ECtHR that the patient’s wishes had been given the priority they deserved by French law and, consequently, that France’s legislative framework and decision-making process offered sufficient protection for the right to life under Article 2. 129
Some of the Court’s considerations in Haas, Gross, and Lambert impart a third, human rights principle: the (overarching) requirement of due diligence. In Haas, the ECtHR emphasized that ‘where a country adopts a liberal approach in this manner, appropriate implementing measures for such an approach and preventive measures are necessary’.
130
In the end, the Court did not find a violation of Article 8 ECHR because it was persuaded that the requirement of a medical prescription could be regarded as a measure that was counterbalanced by the possible hazards within a permissive regime. In Gross, by contrast, the ECtHR ruled that the applicant’s right to respect for her private life had been violated due to the absence of clear and comprehensive legal guidelines. The reasoning of the Court, which focused on the uncertainty the applicant and the medical practitioners must have faced as to the extent of the applicant’s right to end her life, suggests that the nonexistence of such guidelines equates to a lack of due diligence by the national authorities, as the Court believed that they could have done more to clarify whether and under what circumstances a doctor is entitled to issue a prescription for sodium pentobarbital to a patient who is not suffering from a terminal illness: The Court concludes that the applicant must have found herself in a state of anguish and uncertainty regarding the extent of her right to end her life which would not have occurred if there had been clear, State-approved guidelines defining the circumstances under which medical practitioners are authorised to issue the requested prescription in cases where an individual has come to a serious decision, in the exercise of his or her free will, to end his or her life, but where death is not imminent as a result of a specific medical condition.
131
Finally, in Lambert, the ECtHR considered that there would be no violation of Article 2 ECHR if the national authorities were to implement the judgment of the Conseil d’État. It stressed that the provisions of the relevant French law, as interpreted by the Conseil d’État, constituted a legal framework which was sufficiently clear, for the purposes of Article 2 ECHR, to regulate with precision the decisions taken by doctors in such situations.
132
Not only had the national authorities put in place a sufficiently clear legal framework, but they also made sure that the case was subject to an in-depth examination in the course of which all points of view could be expressed and all aspects were carefully considered, in the light of both a detailed expert medical report and general observations from the highest-ranking medical and ethical bodies.
133
The underlying message emerging from these considerations is that Member States that allow assisted dying need to develop a careful regulatory framework. In particular, they have to provide for clear legislation which makes it possible to carefully assess a request for assistance in dying. According to Henk Leenen, a legislative framework concerning assisted dying must contain strict rules as to the voluntary nature of the patient’s request and principles of careful medical practice for the assessment of the request. 134 With regard to the latter, it follows from Lambert that Member States must have in place a legislative framework that regulates with precision the decisions taken by doctors in end-of-life matters. 135
The choice as to what restrictive measures will be applied to ensure compliance with these human rights principles is one that falls within the wide margin of appreciation enjoyed by the Member States. 136 In this respect, the ECtHR has tried to limit its involvement to a minimum in all three cases: in Haas 137 and Lambert 138 , it did so by emphasizing the lack of consensus between the Member States, whereas in Gross, 139 there was a more general focus on the Court’s subsidiary position. These factors warranted leaving significant leeway to the Member States, which enabled the Court to stick to a cautious, merely procedural review. But of course, the ECtHR still requires that any limitation of Article 8 ECHR be foreseeable and clearly applicable. 140 After all, that is where Swiss law fell short: while it admitted the possibility of assisted dying, it did not provide guidelines that sufficiently clarified the scope of the right. 141 The Court therefore urged the Swiss authorities to eliminate the lack of clarity concerning the extent of the right of individuals who are not terminally ill to end their lives in a dignified manner. 142
In summary, the Court’s case law obliges Member States that allow some form of assisted dying to put in place a clear legal framework that
defines the extent of the legally available option of assisted dying in a clear and careful manner,
regulates with precision the decisions taken by doctors in the event of a request for assisted dying,
contains enhanced protective measures for vulnerable persons, and
provides for a procedure capable of ensuring that a decision to end one’s life corresponds to the free will of the individual concerned.
Conclusion
Since 2002, the ECtHR has been confronted with the ethically sensitive and challenging task to adjudicate cases concerning assisted dying. Due to the lack of consensus between the Member States of the Council of Europe, the Court has been able to rely to a large extent on the margin of appreciation doctrine. This has resulted in a very cautious approach: the Court confers a broad discretion on the national authorities to shape their assisted dying policies and limits itself to a procedural review. Nevertheless, its case law has generated several human rights principles that are generally applicable to assisted dying cases. These principles constitute the human rights framework that has to be complied with when regulating assisted dying and are of particular relevance for Member States that have recently introduced or are considering legislation on assisted dying.
The ECtHR has recognized that the right to choose when and how to die is a component of the right to personal autonomy, which, in turn, forms part of the right to respect for private life, protected by Article 8 ECHR. With respect to Member States that prohibit assisted dying, the Court has developed its case law on the basis of the general limitation clause in the second paragraph of Article 8 ECHR: a domestic measure interfering with the right to choose when and how to die must have a clear legal basis, must pursue a legitimate aim, and must be necessary to achieve the legitimate aim pursued. In the light of the wide margin of appreciation that is left to the Member States and considering that even a blanket ban on assisted suicide has been held to be proportionate, it appears that any legally enshrined restriction imposed in pursuit of the legitimate aim of safeguarding life and thereby protecting the rights of others, especially the most vulnerable, will withstand the human rights test.
If, on the other hand, a Member State decides to legalize assisted dying, it has to observe a number of requirements that flow from the balancing act between Articles 8 and 2 ECHR. In particular, they must put in place a clear legal framework which (1) defines the extent of the legally available option of assisted dying in a clear and careful manner, (2) regulates with precision the decisions taken by doctors in the event of a request for assisted dying, (3) contains enhanced protective measures for vulnerable persons, and (4) provides for a procedure capable of ensuring that a decision to end one’s life corresponds to the free will of the individual concerned. Hence, Member States that allow some form of assisted dying must arrive at a clear regulatory framework which is suitable to ensure a careful assessment of a request for assisted dying and which meets at least the abovementioned procedural requirements. The question as to how the national authorities seek to translate these requirements into law falls within the boundaries of their margin of appreciation.
In other words, the Member States are free to either allow or forbid assisted dying. If they decide to allow it, they are obliged to put in place a carefully drafted, clear legal framework that fulfils the above requirements. By contrast, if Member States prohibit assisted dying, they are accorded a wide margin of appreciation, which means that such a prohibition will not constitute a violation of human rights, as long as it has some basis in national law and has been imposed to protect the rights of others, in particular the most vulnerable.
Having regard to the absence of ground-breaking developments in the Court’s case law pertaining to other ethically sensitive areas (e.g. abortion 143 and IVF 144 ), this relatively new line of case law concerning assisted dying, characterized by great deference to the Member States, is not likely to change radically in the near future, as it is to be expected that the lack of consensus within Europe will persist for many years. Nonetheless, every application has the theoretical potential to turn things around, so one can only be curious about what the ECtHR will decide in the pending case of Mortier v. Belgium. 145
Footnotes
Acknowledgements
I would like to thank Kristof Van Assche and the anonymous reviewers for their very helpful comments on an earlier draft of this article.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by a grant from the Flemish Scientific Research Foundation (FWO).
1.
For recent developments in France, see https://www.france24.com/en/france/20210408-bill-to-legalise-euthanasia-goes-before-divided-french-parliament; in Germany, see https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2020/bvg20-012.html; in Ireland, see https://www.oireachtas.ie/en/press-centre/press-releases/20210721-joint-committee-on-justice-recommends-special-oireachtas-committee-examines-topic-of-assisted-dying-following-scrutiny-of-dying-with-dignity-bill-2020/; in Portugal, see https://www.politico.eu/article/portugal-parliament-legalize-euthanasia-constitutional-court-objections/; in Spain, see 
.
2.
D. McGoldrick, ‘A Defence of the Margin of Appreciation and an Argument for its Application by the Human Rights Committee’, International & Comparative Law Quarterly 65(1) (2016), pp. 21–60, 36–37; J. Gerards, ‘Margin of Appreciation and Incrementalism in the Case Law of the European Court of Human Rights’, Human Rights Law Review 18 (2018), pp. 495–515, 496. For more information about the role of the ECtHR, see, for example, J. Gerards, General Principles of the European Convention on Human Rights (Cambridge: Cambridge University Press, 2019).
3.
For the purposes of this article, the term ‘assisted dying’ is used as an umbrella term for end-of-life procedures in which the free will of the individual has a direct or indirect role in the ultimate decision. The choice for this broad interpretation of the term ‘assisted dying’ (which, strictly speaking, only captures euthanasia and assisted suicide) has been made following an in-depth analysis of the case law of the ECtHR in end-of-life matters, which not only consists of cases on assisted suicide (closely related to euthanasia), but also includes a case concerning the withdrawal of artificial life-sustaining treatment (the case of Lambert; see further). In both types of cases, the Court uses a similar line of reasoning, indicating that, from a human rights perspective, these cases give rise to similar concerns and considerations. Accordingly, the general rules flowing from the case of Lambert coincide with and complement the general rules flowing from the other end-of-life cases. For this reason, it was deemed necessary to include the case of Lambert in what is called the ‘human rights framework on assisted dying’, especially because the Court itself links this case to the other end-of-life cases, although they pertain to a different kind of end-of-life decision. So despite the undeniable differences between both types of end-of-life decisions, the reasoning of the ECtHR demonstrates the undeniable similarities in terms of (overarching) human rights considerations.
4.
Pretty v. the United Kingdom, Application No. 2346/02, 29 April 2002.
5.
Haas v. Switzerland, Application No. 31322/07, 20 January 2011.
6.
Koch v. Germany, Application No. 497/09, 19 July 2012.
7.
Gross v. Switzerland, Application No. 67810/10, 14 May 2013.
8.
Lambert and Others v. France, Application No. 46043/14, 5 June 2015.
9.
This article focuses on the cases (1) the applications of which have (at least initially) been declared admissible and (2) in which the ECtHR has, hitherto, handed down a final judgment on the merits. Consequently, neither the case of Nicklinson and Lamb v. the United Kingdom (Application Nos. 2478/15 and 1787/15; inadmissibility decision) nor the case of Mortier v. Belgium (Application No. 78017/17; currently pending) will be discussed. For a commentary on the inadmissibility decision in Nicklinson and Lamb v. the United Kingdom, see E. Wicks, ‘Nicklinson and Lamb v. United Kingdom: Strasbourg Fails to Assist on Assisted Dying in the UK’, Medical Law Review 24(4) (2016), pp. 633–640.
10.
And in particular to cases concerning euthanasia and assisted suicide. Although this article resorts to a broad interpretation of assisted dying in respect of the case law of the ECtHR, the specific focus is still on the human rights principles that must be observed by the Member States of the Council of Europe when regulating assisted dying in the strict sense.
11.
D. Rietiker, ‘From Prevention to Facilitation – Suicide in the Jurisprudence of the ECtHR in the Light of the Recent Haas v. Switzerland Judgment’, Harvard Human Rights Journal 25 (2012), pp. 85–126, 86 and 88–90.
12.
J. Gerards, EVRM – Algemene Beginselen (The Hague: SDU, 2011), p. 188; Y. Haeck and C. Burbano Herrera, Procederen voor het Europees Hof voor de Rechten van de Mens (Antwerp: Intersentia, 2011), p. 137; G. Itzcovich, ‘One, None and One Hundred Thousand Margins of Appreciations: The Lautsi Case’, Human Rights Law Review 13(2) (2013), pp. 287–308, 296; M. Beijer, The Limits of Fundamental Rights Protection by the EU. The Scope for the Development of Positive Obligations (Antwerp: Intersentia, 2017), p. 30.
13.
Pretty v. the United Kingdom, Application No. 2346/02, 29 April 2002, para 67; Haas v. Switzerland, Application No. 31322/07, 20 January 2011, para 51.
14.
E. Brems, Human Rights: Universality and Diversity (The Hague: Martinus Nijhoff, 2001), p. 365; Gerards, EVRM, p. 107.
15.
Gerards, EVRM, p. 143; L. Brunner, ‘Digital Communications and the Evolving Right to Privacy’, in M.K. Land and J.D. Aronson, eds., New Technologies for Human Rights Law and Practice (Cambridge: Cambridge University Press, 2018), pp. 217–242, 226; J. Gerards, General Principles of the European Convention on Human Rights (Cambridge: Cambridge University Press, 2019), p. 232.
16.
It is important to note that the terms ‘restrictive’ and ‘permissive’ are used in this article without any value judgment and instead are intended to refer neutrally to Member States that forbid assisted dying and, respectively, Member States that allow some form of assisted dying.
17.
Pretty v. the United Kingdom, Application No. 2346/02, 29 April 2002.
18.
Op. cit., paras 3 and 7–9.
19.
Op. cit., paras 82–83 and 87–90.
20.
Op. cit., paras 37–42, 49–56 and 61–78.
21.
Rietiker, ‘From Prevention to Facilitation’, pp. 86 and 88–90.
22.
Pretty v. the United Kingdom, Application No. 2346/02, 29 April 2002, para 54 (emphasis added).
23.
Gerards, EVRM, p. 188; Haeck and Burbano Herrera, Procederen voor het EHRM, p. 137; Itzcovich, ‘The Lautsi Case’, p. 296; Beijer, The Limits of Fundamental Rights Protection, p. 30.
24.
Pretty v. the United Kingdom, Application No. 2346/02, 29 April 2002, para 58; Haas v. Switzerland, Application No. 31322/07, 20 January 2011, para 32.
25.
Article 8(2) ECHR.
26.
Brems, Human Rights, p. 365; Gerards, EVRM, p. 107.
27.
For an example of a domestic case that centred around the requirement of legality, see R (Purdy) v. DPP [2009] UKHL 45, in which the House of Lords decided that the Code for Crown Prosecutors did not satisfy the requirements of accessibility and foreseeability in assessing how prosecutorial discretion was likely to be exercised in cases of assisted suicide under section 2(1) of the Suicide Act 1961.
28.
H. Mountfield, ‘The Concept of a Lawful Interference with Fundamental Rights’, in J. Jowell and J. Cooper, eds., Understanding Human Rights Principles (Oxford: Hart Publishing, 2001), pp. 5–25, 5–6; Gerards, EVRM, p. 112; J. Velu and R. Ergec, Convention Européenne des Droits de l’Homme (Brussels: Bruylant, 2014), p. 183.
29.
Gerards, EVRM, p. 112; N.L.A. Lorenz, X. Groussot and G.T. Petursson, The European Human Rights Culture – A Paradox of Human Rights Protection in Europe? (Leiden: Martinus Nijhoff, 2013), p. 78.
30.
Mountfield, ‘Lawful Interference with Fundamental Rights’, Understanding Human Rights Principles, p. 7; Gerards, EVRM, p. 112; E.J. Kindt, Privacy and Data Protection Issues of Biometric Applications. A Comparative Legal Analysis (Dordrecht: Springer, 2013), p. 457; Lorenz et al., The European Human Rights Culture, p. 78; Velu and Ergec, Convention Européenne des Droits de l’Homme, pp. 183–184.
31.
Mountfield, ‘Lawful Interference with Fundamental Rights’, Understanding Human Rights Principles, p. 6; Gerards, EVRM, p. 115; Kindt, Privacy and Data Protection Issues, p. 456; L. Lavrysen, ‘System of Restrictions’, in P. van Dijk, F. van Hoof, A. van Rijn and L. Zwaak, eds., Theory and Practice of the European Convention on Human Rights (Antwerp: Intersentia, 2018), pp. 307–330, 311.
32.
Sunday Times v. the United Kingdom, Application No. 6538/74, 26 April 1979.
33.
Mountfield, ‘Lawful Interference with Fundamental Rights’, Understanding Human Rights Principles, p. 8; Gerards, EVRM, p. 119.
34.
See, for example, Silver and Others v. the United Kingdom, Application No. 5947/72, 25 March 1983.
35.
Gerards, EVRM, p. 120; Kindt, Privacy and Data Protection Issues, pp. 462–463; G. Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights (Oxford: Oxford University Press, 2013), p. 88.
36.
Mountfield, ‘Lawful Interference with Fundamental Rights’, Understanding Human Rights Principles, pp. 8 and 11; Gerards, EVRM, p. 120; Lavrysen, ‘System of Restrictions’, Theory and Practice of the ECHR, p. 312.
37.
Sunday Times v. the United Kingdom, Application No. 6538/74, 26 April 1979, para 49; Gerards, EVRM, p. 120; D. Ormerod and K. Laird, Smith, Hogan, and Ormerod’s Text, Cases, and Materials on Criminal Law (Oxford: Oxford University Press, 2017), p. 15; Gerards, General Principles, p. 205.
38.
Korbely v. Hungary, Application No. 9174/02, 19 September 2008; Kononov v. Latvia, Application No. 36376/04, 17 May 2010; Gerards, EVRM, p. 122; Lautenbach, The Concept of the Rule of Law, p. 92; Velu and Ergec, Convention Européenne des Droits de l’Homme, p. 184.
39.
Gerards, EVRM, p. 132; Velu and Ergec, Convention Européenne des Droits de l’Homme, p. 186; Brunner, ‘Digital Communications’, New Technologies for Human Rights Law and Practice, p. 226.
40.
R. Uerpmann-Wittzack, ‘Personal Rights and the Prohibition of Discrimination’, in D. Ehlers, ed., European Fundamental Rights and Freedoms (Berlin: De Gruyter, 2007), pp. 67–96, 75; Gerards, EVRM, p. 133; W.A. Schabas, The European Convention on Human Rights: A Commentary (Oxford: Oxford University Press, 2015), p. 404; Gerards, General Principles, p. 221.
41.
Keegan v. Ireland, Application No. 16969/90, 26 May 1994, para 49; Gerards, EVRM, p. 140; J. Gerards, ‘How to Improve the Necessity Test of the European Court of Human Rights’, International Journal of Constitutional Law 11(2) (2013), pp. 466–490, 467; Velu and Ergec, Convention Européenne des Droits de l’Homme, p. 189; Schabas, The ECHR: A Commentary, p. 406; Lavrysen, ‘System of Restrictions’, Theory and Practice of the ECHR, p. 315.
42.
Sunday Times v. the United Kingdom, Application No. 6538/74, 26 April 1979, para 62.
43.
Gerards, EVRM, p. 142; Gerards, ‘How to Improve the Necessity Test’, pp. 467–468; E. Brems and L. Lavrysen, ‘“Don’t Use a Sledgehammer to Crack a Nut”: Less Restrictive Means in the Case Law of the European Court of Human Rights’, Human Rights Law Review 15(1) (2015), pp. 139–168, 166; Gerards, General Principles, p. 231.
44.
Gerards, EVRM, p. 143; Schabas, The ECHR: A Commentary, p. 406; Brunner, ‘Digital Communications’, New Technologies for Human Rights Law and Practice, p. 226; Gerards, General Principles, p. 232.
45.
Y. Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Antwerp: Intersentia, 2002), p. 2; Gerards, EVRM, p. 183; J. Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’, European Law Journal 17(1) (2011), pp. 80–120, 105; Haeck and Burbano Herrera, Procederen voor het EHRM, p. 133; K. Henrard, ‘A Critical Analysis of the Margin of Appreciation Doctrine of the ECtHR, with Special Attention to Rights of a Traditional Way of Life and a Healthy Environment: A Call for an Alternative Model of International Supervision’, Yearbook of Polar Law 4(1) (2012), pp. 365–413, 366–368; Lorenz et al., The European Human Rights Culture, pp. 73–74; M. Saul, ‘The European Court of Human Rights’ Margin of Appreciation and the Processes of National Parliaments’, Human Rights Law Review 15(4) (2015), pp. 745–774, 749; Lavrysen, ‘System of Restrictions’, Theory and Practice of the ECHR, p. 327.
46.
Gerards, EVRM, p. 183; Haeck and Burbano Herrera, Procederen voor het EHRM, p. 133; Beijer, The Limits of Fundamental Rights Protection, p. 23.
47.
Lavrysen, ‘System of Restrictions’, Theory and Practice of the ECHR, p. 327.
48.
Beijer, The Limits of Fundamental Rights Protection, p. 30; Lavrysen, ‘System of Restrictions’, Theory and Practice of the ECHR, p. 327.
49.
H. Keller and A. Stone Sweet, ‘Introduction: The Reception of the ECHR in National Legal Orders’, in H. Keller and A. Stone Sweet, eds., A Europe of Rights. The Impact of the ECHR on National Legal Systems (Oxford: Oxford University Press, 2008), pp. 1–28, 6; Gerards, EVRM, p. 184; Gerards, ‘Pluralism’, p. 104; Haeck and Burbano Herrera, Procederen voor het EHRM, p. 133; Henrard, ‘A Call for an Alternative Model of International Supervision’, p. 370; Itzcovich, ‘The Lautsi Case’, p. 293; D. Tsarapatsanis, ‘The Margin of Appreciation Doctrine: A Low-Level Institutional View’, Legal Studies 35(4) (2015), pp. 675–697, 676–677; Beijer, The Limits of Fundamental Rights Protection, p. 30; Lavrysen, ‘System of Restrictions’, Theory and Practice of the ECHR, p. 327.
50.
Case ‘relating to certain aspects of the laws on the use of languages in education in Belgium’ v. Belgium, Application No. 1474/62, 23 July 1968, para 10.
51.
Gerards, EVRM, p. 184; J. Gerards, ‘The European Court of Human Rights and the National Courts: Giving Shape to the Notion of “Shared Responsibility”’, in J. Gerards and J. Fleuren, eds., Implementation of the European Convention on Human Rights and of the Judgments of the ECtHR in National Case-law (Antwerp: Intersentia, 2014), pp. 13–93, 17–18; Beijer, The Limits of Fundamental Rights Protection, pp. 22–23.
52.
Handyside v. the United Kingdom, Application No. 5493/72, 7 December 1976, paras 48–49.
53.
Gerards, EVRM, p. 190; Henrard, ‘A Call for an Alternative Model of International Supervision’, pp. 369–370 and 392; Gerards, ‘Shared Responsibility’, Implementation of the European Convention on Human Rights, pp. 29–30; Saul, ‘Processes of National Parliaments’, p. 749; Beijer, The Limits of Fundamental Rights Protection, p. 30.
54.
Gerards, ‘Pluralism’, p. 105; Beijer, The Limits of Fundamental Rights Protection, p. 30; Lavrysen, ‘System of Restrictions’, Theory and Practice of the ECHR, p. 328.
55.
Gerards, ‘Shared Responsibility’, Implementation of the European Convention on Human Rights, p. 29; Lavrysen, ‘System of Restrictions’, Theory and Practice of the ECHR, p. 328.
56.
Gerards, EVRM, p. 190; Gerards, ‘Pluralism’, p. 105; Gerards, ‘Shared Responsibility’, Implementation of the European Convention on Human Rights, p. 29.
57.
Gerards, EVRM, p. 191; Gerards, ‘Pluralism’, pp. 105–106; Lavrysen, ‘System of Restrictions’, Theory and Practice of the ECHR, p. 328.
58.
Gerards, EVRM, p. 191; Gerards, ‘Pluralism’, p. 106; Gerards, ‘Shared Responsibility’, Implementation of the European Convention on Human Rights, pp. 29–30; Lavrysen, ‘System of Restrictions’, Theory and Practice of the ECHR, p. 328.
59.
Gerards, EVRM, p. 191; Gerards, ‘Pluralism’, p. 106; Gerards, ‘Shared Responsibility’, Implementation of the European Convention on Human Rights, p. 30.
60.
Gerards, EVRM, p. 191; Gerards, ‘Pluralism’, p. 106; Gerards, ‘Shared Responsibility’, Implementation of the European Convention on Human Rights, p. 30; Lavrysen, ‘System of Restrictions’, Theory and Practice of the ECHR, p. 328.
61.
Gerards, EVRM, pp. 193–194; Gerards, ‘Pluralism’, p. 108; Haeck and Burbano Herrera, Procederen voor het EHRM, p. 139; Saul, ‘Processes of National Parliaments’, p. 751.
62.
Haeck and Burbano Herrera, Procederen voor het EHRM, p. 139; Rietiker, ‘From Prevention to Facilitation’, p. 96.
63.
E. Brems, ‘Human Rights: Minimum and Maximum Perspectives’, Human Rights Law Review 9(3) (2009), pp. 349–372, 352; Gerards, ‘Pluralism’, p. 108; Haeck and Burbano Herrera, Procederen voor het EHRM, p. 139; Rietiker, ‘From Prevention to Facilitation’, p. 96; Itzcovich, ‘The Lautsi Case’, p. 296; Velu and Ergec, Convention Européenne des Droits de l’Homme, p. 58; Lavrysen, ‘System of Restrictions’, Theory and Practice of the ECHR, pp. 328–329.
64.
Gerards, EVRM, p. 199; Gerards, ‘Pluralism’, p. 110; Lavrysen, ‘System of Restrictions’, Theory and Practice of the ECHR, p. 329.
65.
Gerards, EVRM, p. 200; Gerards, General Principles, p. 177.
66.
With regard to adoption and IVF, see, for example, Fretté v. France, Application No. 36515/97, 26 February 2002; Evans v. the United Kingdom, Application No. 6339/05, 10 April 2007; Kearns v. France, Application No. 35991/04, 10 January 2008. With regard to gay marriage, see, for example, Schalk and Kopf v. Austria, Application No. 30141/04, 24 June 2010. With regard to abortion, see, for example, A, B and C v. Ireland, Application No. 25579/05, 16 December 2010.
67.
Gerards, EVRM, p. 215; Gerards, ‘Pluralism’, p. 112; Haeck and Burbano Herrera, Procederen voor het EHRM, p. 143; Velu and Ergec, Convention Européenne des Droits de l’Homme, p. 58.
68.
J. Gerards, ‘The Application of Article 14 ECHR by the European Court of Human Rights’, in J. Niessen and I. Chopin, eds., The Development of Legal Instruments to Combat Racism in a Diverse Europe (Leiden: Martinus Nijhoff, 2004), pp. 3–60, 45; D.G. San José, Environmental protection and the European Convention on Human Rights (Strasbourg: Council of Europe Publishing, 2005), 58; Gerards, EVRM, pp. 215–216.
69.
Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality, pp. 222–224; Gerards, ‘The Application of Article 14 ECHR’, The Development of Legal Instruments to Combat Racism in a Diverse Europe, pp. 45–46; J. Marshall, Personal Freedom through Human Rights Law? Autonomy, Identity and Integrity under the European Convention on Human Rights (Leiden: Martinus Nijhoff, 2009), 42; Gerards, EVRM, p. 216.
70.
Dudgeon v. the United Kingdom, Application No. 7525/76, 22 October 1981, para 52.
71.
Gerards, EVRM, p. 216; Haeck and Burbano Herrera, Procederen voor het EHRM, p. 143.
72.
Pretty v. the United Kingdom, Application No. 2346/02, 29 April 2002.
73.
Haas v. Switzerland, Application No. 31322/07, 20 January 2011.
74.
Koch v. Germany, Application No. 497/09, 19 July 2012.
75.
Gross v. Switzerland, Application No. 67810/10, 14 May 2013.
76.
Lambert and Others v. France, Application No. 46043/14, 5 June 2015.
77.
Bierkens and C. Vlieks, ‘Methods of Lawmaking of the European Court of Human Rights: Do Hard Cases Make Bad Law?’, Tilburg Law Review 20 (2015), pp. 107–121, 120.
78.
G. Puppinck and C. de La Hougue, ‘The Right to Assisted Suicide in the Case Law of the European Court of Human Rights’, International Journal of Human Rights 18(7–8) (2014), pp. 735–755, 736.
79.
J. Keown, ‘European Court of Human Rights: Death in Strasbourg – Assisted Suicide, the Pretty Case, and the European Convention on Human Rights’, International Journal of Constitutional Law 1(4) (2003), pp. 722–730, 730.
80.
S. Brown, ‘Gross v. Switzerland and Right to Die Jurisprudence in the European Court of Human Rights’, Chicago-Kent Journal of International and Comparative Law 14 (2014), pp. 1–11, 1.
81.
Op. cit.
82.
Puppinck and de La Hougue, ‘The Right to Assisted Suicide’, pp. 737 and 743.
83.
Gerards, ‘Margin of Appreciation and Incrementalism’, p. 508.
84.
Gerards, ‘Shared Responsibility’, Implementation of the European Convention on Human Rights, p. 18; A. McCann, ‘Assisted Dying in Europe: A Comparative Law and Governance Analysis of Four National and Two Supranational Systems’, unpublished PhD thesis, University of Groningen, 2016, pp. 190–191.
85.
Puppinck and de La Hougue, ‘The Right to Assisted Suicide’, p. 742; Bierkens and Vlieks, ‘Do Hard Cases Make Bad Law?’, p. 119; Gerards, ‘Margin of Appreciation and Incrementalism’, p. 497.
86.
E. Wicks, ‘Nicklinson and Lamb v United Kingdom: Strasbourg Fails to Assist on Assisted Dying in the UK’, Medical Law Review 24(4) (2016), pp. 633–640, 634.
87.
McCann, ‘Assisted Dying in Europe’, p. 224; Wicks, ‘Strasbourg Fails to Assist on Assisted Dying in the UK’, pp. 634–635 and 639.
88.
Wicks, ‘Strasbourg Fails to Assist on Assisted Dying in the UK’, p. 639.
89.
J. Interian, ‘Gross v. Switzerland: A Deadly Dose for Personal Autonomy’, Boston College International and Comparative Law Review 38(3) (2015), pp. 16–29, 26–27.
90.
S.S. Martin, ‘A Human Rights Perspective of Assisted Suicide: Accounting for Disparate Jurisprudence’, Medical Law Review 26(1) (2017), pp. 98–116, 110–111; A.C. Hendriks, ‘End-of-life Decisions. Recent Jurisprudence of the European Court of Human Rights’, ERA Forum 19 (2019), pp. 561–570, 562; E. Wicks, ‘An NHS Trust and others v Y and another [2018] UKSC 46: Reducing the Role of the Courts in Treatment Withdrawal’, Medical Law Review 27(2) (2019), pp. 330–338, 335.
91.
A. Pedain, ‘The Human Rights Dimension of the Diane Pretty Case’, Cambridge Law Journal 62(1) (2003), pp. 181–206, 189; Hendriks, ‘End-of-life Decisions’, p. 564.
92.
Pedain, ‘The Human Rights Dimension of the Diane Pretty Case’, pp. 191–192; Gerards, ‘Margin of Appreciation and Incrementalism’, p. 508.
93.
Puppinck and de La Hougue, ‘The Right to Assisted Suicide’, p. 743.
94.
Bierkens and Vlieks, ‘Do Hard Cases Make Bad Law?’, p. 119; C. Draghici, ‘The Blanket Ban on Assisted Suicide: Between Moral Paternalism and Utilitarian Justice’, European Human Rights Law Review 3 (2015), pp. 286–297, 292.
95.
Haas v. Switzerland, Application No. 31322/07, 20 January 2011, para 55; Koch v. Germany, Application No. 497/09, 19 July 2012, para 70; Lambert and Others v. France, Application No. 46043/14, 5 June 2015, paras 145 and 147–148.
96.
Gerards, EVRM, pp. 190–191; Gerards, ‘Pluralism’, pp. 105–106; Gerards, ‘Shared Responsibility’, Implementation of the European Convention on Human Rights, p. 29; Lavrysen, ‘System of Restrictions’, Theory and Practice of the ECHR, p. 328.
97.
Pretty v. the United Kingdom, Application No. 2346/02, 29 April 2002.
98.
Koch v. Germany, Application No. 497/09, 19 July 2012.
99.
The applicant in Koch complained that the domestic courts’ refusal to examine the merits of his complaint about the Federal Institute’s refusal to authorise his wife to acquire a lethal dose of sodium pentobarbital had infringed his right to respect for private and family life under Article 8 ECHR. The ECtHR explicitly limited itself to examining the procedural aspect of Article 8, concluding that the applicant’s right to respect for his private life had indeed been violated by the domestic courts’ refusal to examine the merits of his motion. With regard to the substantive aspect of the complaint under Article 8, the Court relied on the principle of subsidiarity, considering that it was primarily up to the domestic courts to examine the merits of the applicant’s claim.
100.
Pretty v. the United Kingdom, Application No. 2346/02, 29 April 2002, para 35.
101.
Op. cit., para 39.
102.
A. Mowbray, ‘The European Convention on Human Rights: The Abolition of Capital Punishment and Recent Cases’, Human Rights Law Review 2(2) (2002), pp. 311–329, 318; E. Wada, ‘A Pretty Picture: The Margin of Appreciation and the Right to Assisted Suicide’, Loyola of Los Angeles International and Comparative Law Review 27 (2005), pp. 275–289, 275; Rietiker, ‘From Prevention to Facilitation’, p. 115; Martin, ‘A Human Rights Perspective of Assisted Suicide’, p. 104.
103.
Pretty v. the United Kingdom, Application No. 2346/02, 29 April 2002, para 67.
104.
Op. cit., para 61.
105.
Koch v. Germany, Application No. 497/09, 19 July 2012, para 51.
106.
Puppinck and de La Hougue, ‘The Right to Assisted Suicide’, p. 738.
107.
Pretty v. the United Kingdom, Application No. 2346/02, 29 April 2002, para 69.
108.
Op. cit., para 72.
109.
Op. cit., paras 74 and 76.
110.
Pedain, ‘The Human Rights Dimension of the Diane Pretty Case’, p. 205; Wada, ‘A Pretty Picture’, pp. 276 and 287.
111.
Pretty v. the United Kingdom, Application No. 2346/02, 29 April 2002, para 71.
112.
Koch v. Germany, Application No. 497/09, 19 July 2012, para 70.
113.
Rietiker, ‘From Prevention to Facilitation’, p. 117.
114.
Haas v. Switzerland, Application No. 31322/07, 20 January 2011.
115.
Gross v. Switzerland, Application No. 67810/10, 14 May 2013.
116.
Lambert and Others v. France, Application No. 46043/14, 5 June 2015.
117.
Whereas in Switzerland, there is a well-established practice of right-to-die organisations providing assisted suicide, France prohibits both euthanasia (considered as murder) and physician-assisted suicide (risk of disciplinary sanctions).
118.
E. Delbeke, Juridische Aspecten van Zorgverlening aan het Levenseinde (Antwerp: Intersentia, 2012), p. 16.
119.
Despite the undeniable differences between euthanasia and assisted suicide, on the one hand, and so-called ‘passive euthanasia’, on the other hand, the case law of the ECtHR demonstrates the undeniable similarities in terms of (overarching) human rights considerations. Therefore, it is argued here that the general rules established by the ECtHR in Lambert are of great relevance for the human rights framework concerning assisted dying (bearing in mind that the notion of ‘assisted dying’, strictly speaking, only captures euthanasia and assisted suicide).
120.
It must be noted that the application in this case has eventually been found to be inadmissible by the majority of the Grand Chamber, because the applicant’s conduct constituted an abuse of the right of application within the meaning of Article 35 § 3 (a) of the Convention. See Gross v. Switzerland, Application No. 67810/10, 30 September 2014. Although this means that the initial judgment of the ECtHR (Second Section) no longer stands, it is still relevant to include this case in the analysis of the Court’s case law concerning assisted dying, as it provides insight into the way in which the Court will, in all likelihood, deal with similar cases in the future.
121.
Haas v. Switzerland, Application No. 31322/07, 20 January 2011, para 54; Lambert and Others v. France, Application No. 46043/14, 5 June 2015, para 142.
122.
Haas v. Switzerland, Application No. 31322/07, 20 January 2011, para 54; Lambert and Others v. France, Application No. 46043/14, 5 June 2015, para 142; S.H.E. Harmon and N. Sethi, ‘Preserving Life and Facilitating Death: What Role for Government after Haas v. Switzerland?’, European Journal of Health Law 18 (2011), pp. 355–364, 360; I. Black, ‘Suicide Assistance for Mentally Disordered Individuals in Switzerland and the State’s Positive Obligation to Facilitate Dignified Suicide: Haas c. Suisse, Cour Européenne des Droits de l’Homme, 1re Section (20 janvier 2011) (Unreported)’, Medical Law Review 20 (2012), pp. 157–166, 162; Puppinck and de La Hougue, ‘The Right to Assisted Suicide’, p. 739; Bierkens and Vlieks, ‘Do Hard Cases Make Bad Law?’, p. 115; McCann, ‘Assisted Dying in Europe’, p. 215.
123.
Haas v. Switzerland, Application No. 31322/07, 20 January 2011, para 54.
124.
Op. cit., para 56.
125.
Op. cit., paras 57–58.
126.
Rietiker, ‘From Prevention to Facilitation’, p. 126.
127.
Haas v. Switzerland, Application No. 31322/07, 20 January 2011, para 58.
128.
Lambert and Others v. France, Application No. 46043/14, 5 June 2015, para 178; R.R. Kishore, ‘Vincent Lambert, Dignity in Dying and the European Court: A Critical Evaluation and the Global Reflections’, European Journal of Health Law 23 (2016), pp. 141–157, 142–143.
129.
Wicks, ‘Reducing the Role of the Courts in Treatment Withdrawal’, p. 336.
130.
Haas v. Switzerland, Application No. 31322/07, 20 January 2011, para 57.
131.
Gross v. Switzerland, Application No. 67810/10, 14 May 2013, para 66.
132.
Lambert and Others v. France, Application No. 46043/14, 5 June 2015, para 160.
133.
Op. cit., para 181.
134.
H.J.J. Leenen, ‘Assistance to Suicide and the European Court of Human Rights: The Pretty Case’, European Journal of Health Law 9 (2002), pp. 257–281, 259.
135.
Lambert and Others v. France, Application No. 46043/14, 5 June 2015, para 160.
136.
Puppinck and de La Hougue, ‘The Right to Assisted Suicide’, p. 743.
137.
Haas v. Switzerland, Application No. 31322/07, 20 January 2011, para 55.
138.
Lambert and Others v. France, Application No. 46043/14, 5 June 2015, para 145.
139.
Gross v. Switzerland, Application No. 67810/10, 14 May 2013, paras 68–69.
140.
Brown, ‘Gross v. Switzerland’, p. 7.
141.
Gross v. Switzerland, Application No. 67810/10, 14 May 2013, para 67; I. Black, ‘Existential Suffering and the Extent of the Right to Physician-Assisted Suicide in Switzerland: Gross v Switzerland [2013] ECHR 67810/10’, Medical Law Review 22(1) (2014), pp. 109–118, 114.
142.
Interian, ‘A Deadly Dose for Personal Autonomy’, pp. 23 and 25.
143.
See A, B and C v. Ireland, Application No. 25579/05, 16 December 2010.
144.
See S.H. and Others v. Austria, Application No. 57813/00, 3 November 2011.
145.
Mortier v. Belgium, Application No. 78017/17.