On 4 October 2022, the European Court of Human Rights (“ECtHR”) issued a Chamber judgment in the case of Mortier v. Belgium. This landmark ruling is the first-ever ruling of the ECtHR on the compliance of euthanasia, once performed, with the rights protected under the European Convention of Human Rights (“ECHR”). Additionally, it represents the first judgment concerning euthanasia in cases involving psychological disorders.
Background of the Case
The case concerns the performance of euthanasia to a psychologically ill woman, who suffered from chronic depression for more than forty years. After going through all the prior procedures established by the Belgian Act on Euthanasia and visiting several doctors who agreed to treat her (confirming her chronic condition and lack of external pressure), she underwent euthanasia in February 2012. During the whole process, she was treated by Professor D, an oncologist and co-chair of the Federal Commission of Review and Assessment of Euthanasia (“the Commission”). He was also a member of a pro-euthanasia association to which the applicant made a donation. The applicant, Tom Mortier (son of the euthanized woman) was informed of his mother’s death once the act of euthanasia had been performed.
Mr Mortier brought two complaints before the ECtHR. First, he claimed a violation of Article 2 (right to life) of the ECHR due to the State’s failure to protect his mother’s life. The second complaint concerned Article 8 of the ECHR (right to respect private and family life) for not being informed regarding the performance of his mother’s euthanasia. In this sense, the Court found a violation of Belgium’s procedural obligations under Article 2 of the ECHR due to the length of the criminal proceedings and the lack of independence of the Commission. Surprisingly, despite the Court’s emphasis on reinforced guarantees and safeguards in euthanasia cases involving psychological suffering, the Court did not find a substantive violation of Article 2.
Legal and Contextual Framework of Euthanasia in Belgium
The Belgian Law on Euthanasia permits those seeking euthanasia to do so without having a terminal illness and is one of the few countries that permits euthanasia for individuals suffering from mental and psychological conditions. While Belgium has been commended as one of the most progressive countries when it comes to euthanasia, there are concerns regarding the safeguards and procedural guarantees in the law and its ability to protect the society’s most vulnerable (Raus, 2021). Critics argue that it sets a dangerous precedent and could lead to a “slippery slope” effect. One of the primary concerns in the law has been the lack of consensus on how to define psychological suffering, resulting in a broad interpretation of the term. The legislation also lacks provisions or mechanisms to verify that the patient’s request was genuinely voluntary and well-considered, rather than a result of familial or environmental coercion (Cohen-Almagor, 2009). Additionally, there have been many concerns raised regarding the operation of the Commission, including the wide discretion awarded to its members, lack of independence, transparency and its tendency to disregard legal safeguards. (Raus, 2021).
Evaluating the Need for Enhanced Safeguards
More than two decades ago, the ECtHR’s seminal judgment in Pretty held that although it is not possible to derive a right to die from Article 2 of the Convention, the right to life enshrined in this provision cannot be interpreted as in itself prohibiting the conditional decriminalisation of euthanasia. In Mortier, the ECtHR concluded that allowing euthanasia in general, even in situations where individuals are not close to death or are suffering from mental illness, would not be a violation per se of Article 2 of the ECHR. Mortier, therefore represents a significant milestone and a positive stride toward acknowledging the right to regulated systems of assisted death within the Council of Europe (CoE).
However, the ECtHR in Mortier failed to fully examine the lack of procedural guarantees and safeguards in the Belgian legal framework on euthanasia. The Court’s obligation to review these guarantees and safeguards was even more crucial and urgent as it concerned the right to life of an individual from a vulnerable population who was suffering from a psychological illness. The Court has repeatedly held, in cases such as Pretty and Haas, that states are under an obligation to protect vulnerable persons, which requires member states to put in place enhanced protective measures as part of the legal framework to minimise the potential risk of abuse in situations of end-of-life decisions. Given that the ending of a person’s life is a far-reaching and irreversible act, the Court should have employed strict scrutiny in deliberating the compatibility with the Convention of the procedure followed in conducting the euthanasia of the applicant’s mother.
Despite the substantial emphasis on “safeguards” in the Mortier judgement, regrettably, the Court’s ruling did not acknowledge that there was a substantive violation of Article 2, as it did not undertake a full assessment regarding the absence of safeguards in the Belgian legal framework. This is despite the presence of serious irregularities in the way euthanasia was administered in the present case. The omission by the Court feels even more pronounced considering the significant concerns expressed by numerous stakeholders regarding the insufficiency of the safeguards in the Belgian law to protect vulnerable populations against abuse (Raus, 2021). As far back as 2014, the UN Committee on the Rights of Persons with Disabilities raised concerns regarding the misuse of euthanasia law in Belgium “to kill off persons with intellectual disabilities” and emphasized the need for robust legal safeguards. Therefore, the Court missed a crucial opportunity to provide clear guidance regarding the standards that the necessary safeguards must fulfil to ensure that future euthanasia cases, including those involving psychological conditions, are thoroughly evaluated, and carried out not only in Belgium but throughout all member states of the COE.
Moreover, even though the Court finds a procedural violation of Article 2 on posterior control that the Commission established by the euthanasia law lacks independence, in its judgement the Court failed not only to go into an in-depth analysis regarding the gravity of this violation but also regarding the border concerns in relation to the operation of the Commission that has been discussed above. The inclusion of the doctors who performed euthanasia in the Commission responsible for evaluating the compliance of their actions with the law raises serious concerns about the Commission’s potential bias, which could have led to underreporting cases of doctor’s misconduct, ultimately hindering accountability for potential incidents of abuse. Even if, the doctors remained silent when their own compliance with the law was taken up, an objective bystander would have serious concerns as to the independence of the Commission that has been in operation since 2002.
Margin of Appreciation
The notion of margin of appreciation is double-edged. While the ECtHR reasoning is that the national authorities are better placed because they are closer to the reality in their states, this may end up in situations like in Pretty, where a woman who was in severe physical pain, was denied the possibility to die with dignity when there were no prospects of recovery; and, on the other hand, situations like in Mortier, where the flexibility afforded to Belgian authorities leading to a lack of sufficient safeguards, was compatible with the ECHR.
The particularity in Mortier is not the attribution of the margin of appreciation to national authorities per se. What is surprising is that the Court applies it under Article 2 of the ECHR. After all, the mothers’ rights under Article 8 were not invoked because euthanasia had already been performed. Article 2 of the ECHR has been qualified as one of the most fundamental provisions of the Convention, the ECtHR even used the term “sanctity of life”. Accordingly, in situations in which the right to life is at stake, the Court has applied strict scrutiny to the facts. This approach is in contrast with the wide margin of appreciation that the ECtHR afforded to Belgium in the Morteir case. This conclusion is associated with the consideration that cases involving medically assisted death (euthanasia, withdrawal of life-sustaining treatment, etc.) have moral connotations, and there is no consensus among the Member states of CoE. However, when Article 2 is involved, and the right to life is at stake, the Court has to apply strict scrutiny to the legal safeguards aimed at protecting vulnerable people who want to undergo euthanasia. Not doing so, would render, as it happened in Mortier, the safeguards ineffective due to the final deference to national authorities.
Conclusion
The ECHR, as a “living instrument”, has to be interpreted according to the present-day conditions. Accordingly, the Court will need to adapt to the increasingly growing acceptance of euthanasia in national legal orders in the CoE. In this case analysis, we delved into the complexities of the Court’s stance on the necessity of enhanced safeguards in euthanasia cases, particularly when the concept of margin of appreciation comes into play. The Court’s decision in Mortier, where it did not find a substantive violation of Article 2 and instead embraced a broad margin of appreciation, raises many questions. This is particularly concerning in the context of a country like Belgium, with a liberalized euthanasia system and inbuilt conflicts within it. It remains to be seen in future cases, such as the pending application of Karsai v. Hungary, if such tension will be addressed or whether states will keep enjoying wide deference in the establishment of laws in this regard with the positive and negative aspects that it entails.
Life & Death, an Unstable Scale: The European Court of Human Rights Approach to Euthanasia in Mortier v. Belgium
Written by Anna M. Puigderrajols Triadó and Inshira FaliqOn 4 October 2022, the European Court of Human Rights (“ECtHR”) issued a Chamber judgment in the case of Mortier v. Belgium. This landmark ruling is the first-ever ruling of the ECtHR on the compliance of euthanasia, once performed, with the rights protected under the European Convention of Human Rights (“ECHR”). Additionally, it represents the first judgment concerning euthanasia in cases involving psychological disorders.
Background of the Case
The case concerns the performance of euthanasia to a psychologically ill woman, who suffered from chronic depression for more than forty years. After going through all the prior procedures established by the Belgian Act on Euthanasia and visiting several doctors who agreed to treat her (confirming her chronic condition and lack of external pressure), she underwent euthanasia in February 2012. During the whole process, she was treated by Professor D, an oncologist and co-chair of the Federal Commission of Review and Assessment of Euthanasia (“the Commission”). He was also a member of a pro-euthanasia association to which the applicant made a donation. The applicant, Tom Mortier (son of the euthanized woman) was informed of his mother’s death once the act of euthanasia had been performed.
Mr Mortier brought two complaints before the ECtHR. First, he claimed a violation of Article 2 (right to life) of the ECHR due to the State’s failure to protect his mother’s life. The second complaint concerned Article 8 of the ECHR (right to respect private and family life) for not being informed regarding the performance of his mother’s euthanasia. In this sense, the Court found a violation of Belgium’s procedural obligations under Article 2 of the ECHR due to the length of the criminal proceedings and the lack of independence of the Commission. Surprisingly, despite the Court’s emphasis on reinforced guarantees and safeguards in euthanasia cases involving psychological suffering, the Court did not find a substantive violation of Article 2.
Legal and Contextual Framework of Euthanasia in Belgium
The Belgian Law on Euthanasia permits those seeking euthanasia to do so without having a terminal illness and is one of the few countries that permits euthanasia for individuals suffering from mental and psychological conditions. While Belgium has been commended as one of the most progressive countries when it comes to euthanasia, there are concerns regarding the safeguards and procedural guarantees in the law and its ability to protect the society’s most vulnerable (Raus, 2021). Critics argue that it sets a dangerous precedent and could lead to a “slippery slope” effect. One of the primary concerns in the law has been the lack of consensus on how to define psychological suffering, resulting in a broad interpretation of the term. The legislation also lacks provisions or mechanisms to verify that the patient’s request was genuinely voluntary and well-considered, rather than a result of familial or environmental coercion (Cohen-Almagor, 2009). Additionally, there have been many concerns raised regarding the operation of the Commission, including the wide discretion awarded to its members, lack of independence, transparency and its tendency to disregard legal safeguards. (Raus, 2021).
Evaluating the Need for Enhanced Safeguards
More than two decades ago, the ECtHR’s seminal judgment in Pretty held that although it is not possible to derive a right to die from Article 2 of the Convention, the right to life enshrined in this provision cannot be interpreted as in itself prohibiting the conditional decriminalisation of euthanasia. In Mortier, the ECtHR concluded that allowing euthanasia in general, even in situations where individuals are not close to death or are suffering from mental illness, would not be a violation per se of Article 2 of the ECHR. Mortier, therefore represents a significant milestone and a positive stride toward acknowledging the right to regulated systems of assisted death within the Council of Europe (CoE).
However, the ECtHR in Mortier failed to fully examine the lack of procedural guarantees and safeguards in the Belgian legal framework on euthanasia. The Court’s obligation to review these guarantees and safeguards was even more crucial and urgent as it concerned the right to life of an individual from a vulnerable population who was suffering from a psychological illness. The Court has repeatedly held, in cases such as Pretty and Haas, that states are under an obligation to protect vulnerable persons, which requires member states to put in place enhanced protective measures as part of the legal framework to minimise the potential risk of abuse in situations of end-of-life decisions. Given that the ending of a person’s life is a far-reaching and irreversible act, the Court should have employed strict scrutiny in deliberating the compatibility with the Convention of the procedure followed in conducting the euthanasia of the applicant’s mother.
Despite the substantial emphasis on “safeguards” in the Mortier judgement, regrettably, the Court’s ruling did not acknowledge that there was a substantive violation of Article 2, as it did not undertake a full assessment regarding the absence of safeguards in the Belgian legal framework. This is despite the presence of serious irregularities in the way euthanasia was administered in the present case. The omission by the Court feels even more pronounced considering the significant concerns expressed by numerous stakeholders regarding the insufficiency of the safeguards in the Belgian law to protect vulnerable populations against abuse (Raus, 2021). As far back as 2014, the UN Committee on the Rights of Persons with Disabilities raised concerns regarding the misuse of euthanasia law in Belgium “to kill off persons with intellectual disabilities” and emphasized the need for robust legal safeguards. Therefore, the Court missed a crucial opportunity to provide clear guidance regarding the standards that the necessary safeguards must fulfil to ensure that future euthanasia cases, including those involving psychological conditions, are thoroughly evaluated, and carried out not only in Belgium but throughout all member states of the COE.
Moreover, even though the Court finds a procedural violation of Article 2 on posterior control that the Commission established by the euthanasia law lacks independence, in its judgement the Court failed not only to go into an in-depth analysis regarding the gravity of this violation but also regarding the border concerns in relation to the operation of the Commission that has been discussed above. The inclusion of the doctors who performed euthanasia in the Commission responsible for evaluating the compliance of their actions with the law raises serious concerns about the Commission’s potential bias, which could have led to underreporting cases of doctor’s misconduct, ultimately hindering accountability for potential incidents of abuse. Even if, the doctors remained silent when their own compliance with the law was taken up, an objective bystander would have serious concerns as to the independence of the Commission that has been in operation since 2002.
Margin of Appreciation
The notion of margin of appreciation is double-edged. While the ECtHR reasoning is that the national authorities are better placed because they are closer to the reality in their states, this may end up in situations like in Pretty, where a woman who was in severe physical pain, was denied the possibility to die with dignity when there were no prospects of recovery; and, on the other hand, situations like in Mortier, where the flexibility afforded to Belgian authorities leading to a lack of sufficient safeguards, was compatible with the ECHR.
The particularity in Mortier is not the attribution of the margin of appreciation to national authorities per se. What is surprising is that the Court applies it under Article 2 of the ECHR. After all, the mothers’ rights under Article 8 were not invoked because euthanasia had already been performed. Article 2 of the ECHR has been qualified as one of the most fundamental provisions of the Convention, the ECtHR even used the term “sanctity of life”. Accordingly, in situations in which the right to life is at stake, the Court has applied strict scrutiny to the facts. This approach is in contrast with the wide margin of appreciation that the ECtHR afforded to Belgium in the Morteir case. This conclusion is associated with the consideration that cases involving medically assisted death (euthanasia, withdrawal of life-sustaining treatment, etc.) have moral connotations, and there is no consensus among the Member states of CoE. However, when Article 2 is involved, and the right to life is at stake, the Court has to apply strict scrutiny to the legal safeguards aimed at protecting vulnerable people who want to undergo euthanasia. Not doing so, would render, as it happened in Mortier, the safeguards ineffective due to the final deference to national authorities.
Conclusion
The ECHR, as a “living instrument”, has to be interpreted according to the present-day conditions. Accordingly, the Court will need to adapt to the increasingly growing acceptance of euthanasia in national legal orders in the CoE. In this case analysis, we delved into the complexities of the Court’s stance on the necessity of enhanced safeguards in euthanasia cases, particularly when the concept of margin of appreciation comes into play. The Court’s decision in Mortier, where it did not find a substantive violation of Article 2 and instead embraced a broad margin of appreciation, raises many questions. This is particularly concerning in the context of a country like Belgium, with a liberalized euthanasia system and inbuilt conflicts within it. It remains to be seen in future cases, such as the pending application of Karsai v. Hungary, if such tension will be addressed or whether states will keep enjoying wide deference in the establishment of laws in this regard with the positive and negative aspects that it entails.
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