The European Court of Human Rights (ECtHR) has reviewed several cases related to euthanasia (Gard v. UK, Lambert v. France, and Mortier v. Belgium), and assisted suicide for terminally ill persons (Pretty v. UK), incurable diseases (Koch v. Germany), psychiatric disorders (Haas v. Switzerland), and the case of a physician that disseminated suicide recipes through the internet (Lings v. Denmark). Some scholars have commented on these previous cases (see here, here, and here).
In its latest case on assisted suicide (Dániel Karsai v. Hungary) the ECtHR, for the first time, considered palliative care as part of a State’s obligation to protect the right to life of vulnerable people. Also, this case reveals the continuation of a tense position that has not been clarified by the ECtHR between the scope of the positive obligation to protect the right to life and the alleged States’ obligations concerning the right to privacy in end-of-life decisions.
Background of the Case
The case concerned Mr. Dániel Karsai, a prominent human rights lawyer and former staff of the ECtHR who was diagnosed with amyotrophic lateral sclerosis (ALS), an incurable progressive neurodegenerative disease. In its advanced form, most muscles are paralyzed while cognitive and sensory abilities remain intact.
In Mr. Karsai’s view, the right to privacy (article 8) of the European Convention on Human Rights (ECHR) included a right to a self-determined death, which was violated due to Hungary’s criminalization of assisted suicide. Mr. Karsai maintained that he sought an exception to this criminal ban in the form of physician-assisted dying (PAD), which covers both euthanasia and assisted suicide.
The Opposing Views at Stake
The applicant argued that there was an international trend towards decriminalizing PAD through judicial (Italy, Germany, Austria, and Canada) and legislative processes (Belgium, the Netherlands, Luxemburg, Spain, and Portugal) and an increasing acceptance of this practice among the general population.
On its part, Hungary argued that article 2 of the ECHR imposes a positive obligation on states not to “intentionally” deprive anybody of their life. In this regard, Hungary maintained that the risk of abuse of the legalization of PAD was clear because it was limited to terminally ill or physically disabled people, who might be pressured to die for pragmatic and economic purposes, like the costs related to health care provision. This risk was already acknowledged as a legitimate aim to be protected and a serious concern by the ECtHR in previous cases (e. g. Pretty and Hass).
The State referred to certain studies that demonstrate that the relaxation of laws resulted in abuse and a disproportionate effect on the vulnerable population, and that can have a “slippery slope” effect (as in the Hass case where the applicant sought the availability of the lethal substance sodium pentobarbital without a medical prescription). Hungary also argued that the decriminalization of PAD was based on the assumption that the lives of sick and disabled people are a burden on society and, therefore, are less worthy of respect than the lives of healthy people.
In this regard, Hungary contended that PAD was not the only alternative to dying with dignity. Rather, it contended that palliative care and the refusal by the patient or withdrawal at the patient’s request of life-sustaining or life‑saving interventions (including deep sedation) are better ways to alleviate or eliminate by all possible means the patient’s suffering.
Balancing the Right to Life and Privacy
The ECtHR conducted its proportionality test to decide whether or not the restriction was based on a fair balance of the interests at stake: the applicant’s desire to end his life through PAD and Hungary’s obligation to protect the lives of vulnerable people and to avoid abuses and discrimination against them.
Previously, in Pretty v. UK, the ECtHR alleged that “article 2 cannot, without a distortion of language, 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” (para 39). The ECtHR had established that article 2 entails mainly a negative obligation not to intentionally deprive someone of his or her life, but in some specific situations, it entails the positive obligation to take preventive measures to protect somebody’s life. For instance, in the case of a mentally ill prisoner who was at risk of committing suicide (Keenan v. UK).
In Karsai, the ECtHR further argued that this positive obligation would also imply Hungary’s obligation to protect the lives of vulnerable persons, including those who can be pressured to die because they are considered a burden to society. However, at the same time, in Haas, Mortier, Koch and this case, the ECtHR argued that the provision of assisted suicide (conditional euthanasia in the case of Mortier) does not violate states’ positive obligations under article 2.
As it did in previous cases, the ECtHR was not clear regarding this tense and complicated relationship between the States’ positive obligation to protect life (especially the life of vulnerable people) under article 2 and a “right to decide by what means and at what point” a person may end his or her life (Haas, para 51) that according to the ECHR would be encompassed under article 8, as part of the right to privacy.
The Margin of Appreciation in regulating PAD
In this case, the ECtHR granted Hungary a wide margin of appreciation (MoA). This decision was based on several aspects the Court considered, both regarding the evolutive interpretation of the ECtHR and local sensibilities.
Regarding the evolutive interpretation, the ECtHR recalled that “the Convention is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today” (para 142). Thus, following its previous case law, the evolutive interpretation must be based on the evidence of a consensus based on the actual practice of the state parties to the ECHR.
In this case, the ECtHR acknowledged that there is a “certain trend” that is emerging towards the decriminalization of PAD. However, PAD is criminally punishable in the majority of Council of Europe member states. Only 5 member states have legalized euthanasia or assisted suicide as a form of PAD (Belgium, Luxembourg, the Netherlands, Spain, and Portugal). Only in 7 member states (Austria, Finland, Germany, Italy, Lichtenstein, Sweden, and Switzerland) certain forms of assisted suicide are lawful, while euthanasia remains unlawful. Moreover, the ECtHR pointed out that several international instruments (paras 35-42) do not establish an obligation to decriminalize PAD, nor do they advise it.
Regarding the nature of the issue at stake, the ECtHR sustained that, in principle, states enjoy a MoA in matters related to healthcare policy because local authorities are better placed to assess priorities and social needs and decide on resource use. Thus, the ECtHR argued that to determine the breadth of the MoA in this case, account must be taken of the values affected by this sensitive issue, and the proportionality assessment must be conducted “in full appreciation of the local conditions and institutions in a given society” (para 141).
The Provision of Palliative Care
The ECtHR took seriously into account Hungary’s concern that a relaxation of laws would lead to abuses and pressure vulnerable people to die. The ECHR referred to the challenges of ensuring that the patient’s decision to use PAD is free from external pressure and is not commanded by concerns that could be addressed through other means.
In this regard, the ECtHR maintained that effective communication with the patient (that requires the development of special skills, time, and deep commitment on the part of the medical professionals) is important because it provides the possibility that the patient will change his or her mind on the use of PAD. This is the first ruling where the ECtHR indicates that an essential part of this treatment is providing adequate and high-quality palliative care, “guided by compassion and high medical standards” (para 158), including pain management.
On this point, the applicant argued that he would refuse to be medically sedated because, in his view, it would mean the loss of what is left of his autonomy. The ECtHR noted that the gravity of Mr. Karsai’s suffering cannot be underestimated. However, it added that suffering “is part of the human condition that medical science will probably never be fully capable of eliminating all aspects of the suffering of individuals who are terminally ill” and that “existential suffering relates essentially to a personal experience, which may be susceptible to change and does not lend itself to a straightforward objective assessment” (para 158).
Thus, taking into account all these elements, the ECtHR concluded that the patient’s decision to reject palliative sedation is a legitimate one, but one that would not mean that article 8 should be interpreted as a right to use PAD as an alternative measure. Therefore, the ECHR concluded that the Hungarian authorities did not overstep their MoA.
Conclusions: Moderation or Dynamic Interpretation?
In Karsai, the ECtHR encouraged the provision of palliative care and reiterated that the ECHR does not provide a right to die. Nevertheless, it left open this possibility by stating that the provision of PAD does not violate the right to life and that, allegedly, there is a right (under article 8) to decide how and when one is going to die.
However, as the two dissenting opinions reveal, the ECtHR is internally struggling between two conflicting positions on the scope of evolutive interpretation: one advocating for a more progressive approach (Judge Felici) and the other calling for a restrictive one (Judge Wojtyczek).
The ECtHR was right to take a cautious and moderate approach in this case because the creation of new rights must be supported by a broad international consensus (or at least a regional European consensus, in this case) to avoid a proliferation of rights that could be perceived as illegitimate and lacking any legal basis. Nevertheless, as Judge Wojtyczek pointed out, this evolutive approach should be carefully assessed, as some interpretations (even if based on an international trend) could imply “a fundamental change of paradigm” that could undermine the foundations of the Convention. Modifications through interpretation must have some limits to keep the ECHR precisely as a “living” instrument and not to “evolve into a dying instrument” whose commitments, as agreed and enshrined in an international treaty, become meaningless.
Palliative Care and Assisted Suicide at the ECtHR: Dániel Karsai v. Hungary
Written by Gabriela García EscobarThe European Court of Human Rights (ECtHR) has reviewed several cases related to euthanasia (Gard v. UK, Lambert v. France, and Mortier v. Belgium), and assisted suicide for terminally ill persons (Pretty v. UK), incurable diseases (Koch v. Germany), psychiatric disorders (Haas v. Switzerland), and the case of a physician that disseminated suicide recipes through the internet (Lings v. Denmark). Some scholars have commented on these previous cases (see here, here, and here).
In its latest case on assisted suicide (Dániel Karsai v. Hungary) the ECtHR, for the first time, considered palliative care as part of a State’s obligation to protect the right to life of vulnerable people. Also, this case reveals the continuation of a tense position that has not been clarified by the ECtHR between the scope of the positive obligation to protect the right to life and the alleged States’ obligations concerning the right to privacy in end-of-life decisions.
Background of the Case
The case concerned Mr. Dániel Karsai, a prominent human rights lawyer and former staff of the ECtHR who was diagnosed with amyotrophic lateral sclerosis (ALS), an incurable progressive neurodegenerative disease. In its advanced form, most muscles are paralyzed while cognitive and sensory abilities remain intact.
In Mr. Karsai’s view, the right to privacy (article 8) of the European Convention on Human Rights (ECHR) included a right to a self-determined death, which was violated due to Hungary’s criminalization of assisted suicide. Mr. Karsai maintained that he sought an exception to this criminal ban in the form of physician-assisted dying (PAD), which covers both euthanasia and assisted suicide.
The Opposing Views at Stake
The applicant argued that there was an international trend towards decriminalizing PAD through judicial (Italy, Germany, Austria, and Canada) and legislative processes (Belgium, the Netherlands, Luxemburg, Spain, and Portugal) and an increasing acceptance of this practice among the general population.
On its part, Hungary argued that article 2 of the ECHR imposes a positive obligation on states not to “intentionally” deprive anybody of their life. In this regard, Hungary maintained that the risk of abuse of the legalization of PAD was clear because it was limited to terminally ill or physically disabled people, who might be pressured to die for pragmatic and economic purposes, like the costs related to health care provision. This risk was already acknowledged as a legitimate aim to be protected and a serious concern by the ECtHR in previous cases (e. g. Pretty and Hass).
The State referred to certain studies that demonstrate that the relaxation of laws resulted in abuse and a disproportionate effect on the vulnerable population, and that can have a “slippery slope” effect (as in the Hass case where the applicant sought the availability of the lethal substance sodium pentobarbital without a medical prescription). Hungary also argued that the decriminalization of PAD was based on the assumption that the lives of sick and disabled people are a burden on society and, therefore, are less worthy of respect than the lives of healthy people.
In this regard, Hungary contended that PAD was not the only alternative to dying with dignity. Rather, it contended that palliative care and the refusal by the patient or withdrawal at the patient’s request of life-sustaining or life‑saving interventions (including deep sedation) are better ways to alleviate or eliminate by all possible means the patient’s suffering.
Balancing the Right to Life and Privacy
The ECtHR conducted its proportionality test to decide whether or not the restriction was based on a fair balance of the interests at stake: the applicant’s desire to end his life through PAD and Hungary’s obligation to protect the lives of vulnerable people and to avoid abuses and discrimination against them.
Previously, in Pretty v. UK, the ECtHR alleged that “article 2 cannot, without a distortion of language, 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” (para 39). The ECtHR had established that article 2 entails mainly a negative obligation not to intentionally deprive someone of his or her life, but in some specific situations, it entails the positive obligation to take preventive measures to protect somebody’s life. For instance, in the case of a mentally ill prisoner who was at risk of committing suicide (Keenan v. UK).
In Karsai, the ECtHR further argued that this positive obligation would also imply Hungary’s obligation to protect the lives of vulnerable persons, including those who can be pressured to die because they are considered a burden to society. However, at the same time, in Haas, Mortier, Koch and this case, the ECtHR argued that the provision of assisted suicide (conditional euthanasia in the case of Mortier) does not violate states’ positive obligations under article 2.
As it did in previous cases, the ECtHR was not clear regarding this tense and complicated relationship between the States’ positive obligation to protect life (especially the life of vulnerable people) under article 2 and a “right to decide by what means and at what point” a person may end his or her life (Haas, para 51) that according to the ECHR would be encompassed under article 8, as part of the right to privacy.
The Margin of Appreciation in regulating PAD
In this case, the ECtHR granted Hungary a wide margin of appreciation (MoA). This decision was based on several aspects the Court considered, both regarding the evolutive interpretation of the ECtHR and local sensibilities.
Regarding the evolutive interpretation, the ECtHR recalled that “the Convention is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today” (para 142). Thus, following its previous case law, the evolutive interpretation must be based on the evidence of a consensus based on the actual practice of the state parties to the ECHR.
In this case, the ECtHR acknowledged that there is a “certain trend” that is emerging towards the decriminalization of PAD. However, PAD is criminally punishable in the majority of Council of Europe member states. Only 5 member states have legalized euthanasia or assisted suicide as a form of PAD (Belgium, Luxembourg, the Netherlands, Spain, and Portugal). Only in 7 member states (Austria, Finland, Germany, Italy, Lichtenstein, Sweden, and Switzerland) certain forms of assisted suicide are lawful, while euthanasia remains unlawful. Moreover, the ECtHR pointed out that several international instruments (paras 35-42) do not establish an obligation to decriminalize PAD, nor do they advise it.
Regarding the nature of the issue at stake, the ECtHR sustained that, in principle, states enjoy a MoA in matters related to healthcare policy because local authorities are better placed to assess priorities and social needs and decide on resource use. Thus, the ECtHR argued that to determine the breadth of the MoA in this case, account must be taken of the values affected by this sensitive issue, and the proportionality assessment must be conducted “in full appreciation of the local conditions and institutions in a given society” (para 141).
The Provision of Palliative Care
The ECtHR took seriously into account Hungary’s concern that a relaxation of laws would lead to abuses and pressure vulnerable people to die. The ECHR referred to the challenges of ensuring that the patient’s decision to use PAD is free from external pressure and is not commanded by concerns that could be addressed through other means.
In this regard, the ECtHR maintained that effective communication with the patient (that requires the development of special skills, time, and deep commitment on the part of the medical professionals) is important because it provides the possibility that the patient will change his or her mind on the use of PAD. This is the first ruling where the ECtHR indicates that an essential part of this treatment is providing adequate and high-quality palliative care, “guided by compassion and high medical standards” (para 158), including pain management.
On this point, the applicant argued that he would refuse to be medically sedated because, in his view, it would mean the loss of what is left of his autonomy. The ECtHR noted that the gravity of Mr. Karsai’s suffering cannot be underestimated. However, it added that suffering “is part of the human condition that medical science will probably never be fully capable of eliminating all aspects of the suffering of individuals who are terminally ill” and that “existential suffering relates essentially to a personal experience, which may be susceptible to change and does not lend itself to a straightforward objective assessment” (para 158).
Thus, taking into account all these elements, the ECtHR concluded that the patient’s decision to reject palliative sedation is a legitimate one, but one that would not mean that article 8 should be interpreted as a right to use PAD as an alternative measure. Therefore, the ECHR concluded that the Hungarian authorities did not overstep their MoA.
Conclusions: Moderation or Dynamic Interpretation?
In Karsai, the ECtHR encouraged the provision of palliative care and reiterated that the ECHR does not provide a right to die. Nevertheless, it left open this possibility by stating that the provision of PAD does not violate the right to life and that, allegedly, there is a right (under article 8) to decide how and when one is going to die.
However, as the two dissenting opinions reveal, the ECtHR is internally struggling between two conflicting positions on the scope of evolutive interpretation: one advocating for a more progressive approach (Judge Felici) and the other calling for a restrictive one (Judge Wojtyczek).
The ECtHR was right to take a cautious and moderate approach in this case because the creation of new rights must be supported by a broad international consensus (or at least a regional European consensus, in this case) to avoid a proliferation of rights that could be perceived as illegitimate and lacking any legal basis. Nevertheless, as Judge Wojtyczek pointed out, this evolutive approach should be carefully assessed, as some interpretations (even if based on an international trend) could imply “a fundamental change of paradigm” that could undermine the foundations of the Convention. Modifications through interpretation must have some limits to keep the ECHR precisely as a “living” instrument and not to “evolve into a dying instrument” whose commitments, as agreed and enshrined in an international treaty, become meaningless.
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