Shortening the dying process of people suffering from serious, incurable illnesses at their request or assisting their suicide raises significant legal questions, in addition to ethical, philosophical, religious, and medical issues, which have been answered differently by European constitutional courts in recent years. The European Court of Human Rights, in its judgment in the case of Dániel Karsai v. Hungary, published on 13 June 2024, acknowledged that there is an emerging trend towards decriminalising physician-assisted suicide, but noted that the majority of States Parties, including Hungary, continue to prohibit assisted suicide, and therefore States Parties have a margin of appreciation in allowing or criminalising assisted suicide. Thus, the framework for the fundamental rights assessment of assisted suicide can be drawn from the practice of national constitutional courts. In the analysis of the German, Austrian, Italian, and Hungarian assisted suicide decisions, I seek to answer the following questions: 1. Does the right to suicide exist, and, if so, from which fundamental right can it be derived? 2. Is there a right to request and receive assistance in suicide, and if so, from which fundamental right? 3. What is the scope of the State's duty to protect life in the event of assisted suicide?
Keywords: right to human dignity, general right to personality, autonomy, right to self-determination, euthanasia, suicide, assisted suicide, freedom to commit suicide, state duty to protect life
Shortening the dying process of people suffering from serious, incurable illnesses at their request or assisting their suicide raises significant legal questions, in addition to ethical, philosophical, religious, and medical issues, which have been answered differently by European constitutional courts in recent years. In its judgment published on 13 June 2024 in the case of Dániel Karsai v. Hungary[2], the European Court of Human Rights (ECtHR) recognised that there is an emerging trend towards decriminalising physician-assisted suicide, as access to physician-assisted suicide has been provided in some European countries over the last few years. In Germany, Austria, and Italy, this decision has followed decisions by constitutional courts. In contrast, the majority of States Parties, including Hungary, continue to prohibit assisted suicide. Therefore, the ECtHR considers that it is the job of the national authorities to assess whether physician-assisted suicide can be provided in their country. The ECtHR merely examines, in the context of the right to life and the right to respect for private life guaranteed by the European Convention on Human Rights (ECHR), whether the respondent State has exceeded its margin of appreciation, having regard to the particular circumstances of the case. The jurisprudence of the ECtHR also sets out the minimum level of the right to privacy and protection of life in relation to assisted suicide, as can be seen from the Austrian and Italian Constitutional Court decisions on assisted suicide, while also claiming that the ECHR does not apply to assisted suicide. Article 8 of the ECHR does not create a positive obligation to legalise physician-assisted suicide.[3] On the other hand, it has held that Article 2 of the ECHR does not prevent national authorities from authorising or ensuring physician-assisted suicide,[4] leaving the definition of assisted suicide uncertain. Therefore, in this paper, I seek to extract the fundamental rights framework for the assessment of assisted suicide from the decisions of the European Constitutional Court.
The doctrinal starting points of the constitutional courts are common in that they see the solution to the problem of assisted suicide in the context of the right to self-determination and the protection of life. Nevertheless, the reasoning of the individual constitutional courts differs from one another, which also leads to a different result in the case of the Hungarian Constitutional Court. In presenting the assisted suicide decisions of the Italian, German, Austrian, and Hungarian Constitutional Courts, I will examine the framework of
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the fundamental rights discretion. I seek to answer the following questions: 1. Does the right to suicide exist and if so, from which fundamental right can it be derived? 2. Is there a right to request and receive assistance in suicide, and if so, from which fundamental right? 3. What is the scope of the State's duty to protect life in the event of assisted suicide? The starting point for the analysis is the German Constitutional Court's assisted suicide judgment, as it contains the most differentiated constitutional court test adapted to the structure of fundamental rights and, as part of this, the necessity-proportionality test developed in the practice of the Court, which has been incorporated into the practice of the ECtHR and subsequently of several constitutional courts. Finally, I will analyse the domestic jurisprudence and conclude with an overall assessment of the judgments.
On 26 February 2020, the German Federal Constitutional Court ruled on assisted suicide and found that § 217 of the German Criminal Code (hereinafter: German Criminal Code), which criminalised assisted suicide, was not in line with the German Basic Law (hereinafter: Grundgesetz), as it violated the right to self-determined death and the freedom to take one's own life as part of that right.[5]
The legislator introduced the offence with the amendment of the German Penal Code on 3 December 2015, following the introduction of the offence of intentional homicide,[6] which previously did not punish assisted suicide at all. This provision of the Penal Code criminalised as a separate offence the creation, provision, or procuring of the opportunity to commit suicide. The decisive element was the regularity and the service character (geschäftsmäßig),[7] so that other cases of assisting suicide are still not punishable under the German Criminal Code.[8]
The Federal Constitutional Court has not previously examined the issue of euthanasia on its merits,[9] rejecting a constitutional complaint by the petitioner, a doctor, who claimed that the patient needed urgent help to carry out his suicide and that he could not provide help because his act would be considered a criminal offence under the German Criminal Code.[10] In the assisted suicide judgment, the Federal Constitutional Court extended the scope of protection of the general right of personality to the right to die by individual self-determination, which includes the freedom to take one's own life and to request assistance and to receive the assistance offered.[11] However, it was not satisfied with basing the right to death on the general right to personality derived from the connection between the human dignity clause (Article 1 (1) of the Basic Law) and the right to the free development of personality (Article 2 (1) of the Basic Law), but regarded the freedom to commit suicide as an expression of human dignity.[12]
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