States Not Obliged to Assist Persons Wishing to Commit Suicide – Antoine Buyse

Last week, the European Court of Human Rights decided in the case of Haas v. Switzerland (judgment in French only) that the right to private life is not violated when a state refuses to help a person who wishes to commit suicide by enabling that person to obtain a lethal substance.

The applicant in the case, Ernst Haas, had for two decades been suffering from a serious bipolar affective disorder (more commonly known as manic depression). During that time he attempted to commit suicide twice. Later, he tried to obtain a medical prescription for a small amount of sodium pentobarbital, which would have allowed him to end his life without ain or suffering. Not a single psychiatrist, of the around 170 (sic!) he approached, was willing to give him such a prescription. This would have been necessary, under Swiss law, which allowed for assisted suicide if it was not done for selfish motives (in the opposite case, the person assisting could be prosecuted under the criminal code).

In Strasbourg, at the European Court of Human Rights, Mr Haas claimed that under the right to respect for private life (Article 8 ECHR) Switzerland was obliged to help him to commit suicide in a manner without risk or pain, that is by way of helping him to access the required amount of sodium pentobarbital.

The case clearly raises problems somewhat similar to the famous Pretty v United Kingdom judgment of the Court in 2002, in which the European Court held that the refusal to guarantee the non-prosecution of the husband of the terminally ill Diane Pretty did not violate human rights. The Court distinguished the present case from Pretty: Haas was – contrary to Pretty – not terminally ill nor unable due to such illness to commit suicide himself. Not so much the ability to commit suicide was at stake, but the claim that if the applicant would not obtain the substance he demanded he would have to commit suicide in an undignified way.

The Court held in the Haas judgment that the right to respect for private life includes the right for individuals to decide in which way and at which moment his or her life should end, om the condition that the person is able to make up his or her mind freely on this and to act accordingly.

Looking at the Convention as a whole, the Court held that states should balance privacy rights with the protection of the right to life (Article 2 ECHR) which included protecting persons against themselves, in cases in which the decision to commit suicide was not arrived at freely and consciously. In this difficult balancing act there is no European consensus – the margin of appreciation is thus wide. In fact, the Court noted that Switzerland was leaning relatively towards the protection of Article 8 rights as compared to most other European countries which put more emphasis on the protection of the right to life. All the more so, the Court saw the value of the safeguards against abuse and against precipitated decisions which the Swiss system has incorporated by requiring medical prescription for sodium pentobarbital. Indeed, the Court ascertained that Article 2 requires that states put a procedure in place which safguards that the decision to end one’s life reflects the free will of the person involved. The Swiss system of requiring a psychiatric report was a way of fulfilling that Convention requirement. Thus the Court held that the Convention had not been violated in this case.

As far as the case information shows, the applicant is still alive.

The press release in English can be found here.

This post first appeared on the ECHR Blog. It is reproduced with permission and thanks.

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