EHRM, 13-06-2024, nr. 32312/23

One of the declared purposes of Act CLIV of 1997 on Healthcare (hereinafter the ‘Healthcare Act’) is to create conditions whereby all patients can preserve their human dignity, self-identity and right to self-determination, and whereby all of their other rights remain intact (section 1 point (c)).

Every patient has, in the event of a medical emergency, the right to receive life-saving care and treatment in order to prevent serious or permanent impairment to health, as well as to have his or her pain eased and suffering reduced (section 6). Life-saving intervention is defined by the Healthcare Act as ‘a medical activity aimed at saving the patient's life in the event of a medical emergency’ (section 3 point (n)), while life-sustaining intervention is ‘a medical activity aimed at artificially maintaining the patient's life or at substituting certain vital life functions’ (section 3 point (o)).

A patient's personal freedom and right to self-determination can only be restricted if this is justified by the patient's state of health, and only in the manner and circumstances specified by the Healthcare Act (section 2 (1)). In the context of the exercise of the right to self-determination, a patient can freely decide whether he or she wishes to use healthcare services, and which procedures to consent to or refuse in the course of using such services, having regard to the restrictions laid down in section 20 of that Act (section 15 (2)).

Sections 20–23 of the Healthcare Act, concerning the right to refuse medical care, provide:

The Right to Refuse Healthcare

Section 20

Section 22

Section 23

The Healthcare Act does not authorise assisted suicide or euthanasia.

The relevant parts of the Healthcare Act read as follows:

End-of-Life Care of Terminal Patients

Section 99

Hospice palliative care is further defined by Decree no. 60/2003. (X. 20.) of the Health Minister as a form of healthcare that aims to eliminate or reduce the pain and other distressing symptoms of patients in the final stages of an incurable terminal illness, to improve their quality of life, and to support family members and bereaved relatives, through the help of a multidisciplinary care team. In general, hospice palliative care is provided to patients with an expected survival period of no longer than a year. The multidisciplinary team consists of doctors, physiotherapists, nurses, dieticians, mental-health professionals and social workers. All forms of hospice palliative care are free of charge for the patient. Following an initial maximum 50 days of care, it can be prolonged twice, with the maximum period of care being capped at 150 days.

The Council of Europe Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (CETS 164, the Oviedo Convention) was signed on 4 April 1997 and entered into force on 1 December 1999, and with respect to Hungary on 1 May 2002. Article 5, entitled ‘General rule’, in Chapter II on Consent, provides as follows:

In so far as relevant, the Explanatory Report to the Oviedo Convention provides as follows in respect of Article 5:

The Parliamentary Assembly of the Council of Europe has adopted the following texts, of pertinence to the present topic and reproduced in the relevant part:

In the course of its work on patients' rights and with the intention of facilitating the implementation of the principles enshrined in the Oviedo Convention, the Committee on Bioethics (DH-BIO) of the Council of Europe prepared a Guide on the decision-making process regarding medical treatment in end-of-life situations. It was adopted at the Committee's 4th plenary meeting (26-28 November 2013). The Guide concerns the decision-making process regarding medical treatment as it applies to end-of-life situations (including its implementation, modification, adaptation, limitation, or withdrawal). It does not address the issues of euthanasia or assisted suicide. The relevant parts of the Guide are set out in the Court's judgment in the case of Lambert and Others v. France ([GC], no. 46043/14, §§ 61-68, ECHR 2015 (extracts)).

Among the problematic issues, the Guide mentions the use of sedation for distress in the terminal phase of illness. It notes as follows:

On 29 November 2001 the House of Lords refused an appeal by Ms Pretty, a terminally ill woman with motor neurone disease who had unsuccessfully requested that the Director of Public Prosecutions give an undertaking not to prosecute her husband should he assist her to commit suicide in accordance with her wishes ([2001] UKHL 61). For details concerning the House of Lords' judgment, see Pretty v. the United Kingdom, no. 2346/02, § 14, ECHR 2002-III.

Several years later, the House of Lords was asked in R (Purdy) v Director of Public Prosecutions to decide whether the refusal by the Director of Public Prosecutions (hereinafter ‘DPP’) to provide further guidance on the circumstances which would give rise to prosecution of aiding and abetting suicide complied with Article 8 of the Convention. The appellant in that case suffered from an incurable disease and wanted to travel to a country such as Switzerland where assisted suicide was lawful, should her continued existence become unbearable. She approached the DPP to request clarification in advance as to whether her husband would face prosecution if he assisted her to travel. The DPP refused to clarify the position. The House of Lords in its judgment of 30 July 2009 ([2009] UKHL 45) found that the Code for Crown Prosecutors was not sufficiently precise and accessible to allow individuals to understand and foresee whether or not they would be prosecuted for assisting a suicide and was therefore not compliant with Article 8 of the Convention.

Following the House of Lords' judgment, the Crown Prosecution Service's Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide was issued in February 2010 and updated in October 2014. It explains the factors which favour or mitigate against prosecution. Among the public-interest factors which mitigate against prosecution are the fact that the victim had reached a voluntary, clear, settled and informed decision to commit suicide; that the suspect was wholly motivated by compassion; and that the actions of the suspect could be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide. Similar but separate guidance was issued with respect to ‘mercy killings’, and has been regularly updated.

In the meantime, on 25 June 2014, the Supreme Court addressed appeals concerning claims related to assisting suicide by Mr Nicklinson, Mr Lamb, and a person known for the purpose of the proceedings as Martin (judgment [2014] UKSC 38). As regards the appeals brought by Mr Nicklinson and Mr Lamb, see Nicklinson and Lamb v. the United Kingdom ((dec.), nos. 2478/15 and 1787/15, 23 June 2015). Martin argued that there should be clearer guidance in the policy published by the DPP with regard to prosecuting those from whom he wished to obtain advice and assistance in connection with killing himself. The Supreme Court found that it was one thing for the court to order the DPP to provide a policy, but quite another for the court to dictate what should be in that policy. The exercise of judgment by the DPP, the variety of relevant factors, and the need to vary the weight to be attached to them according to the circumstances of each individual case were all proper and constitutionally necessary features of the system of prosecution in the public interest.

On 27 November 2018, in Noel Conway v Secretary of State for Justice ([2018] UKSC B1), the Supreme Court Appeal Panel (hereinafter ‘the Panel’) considered an application for permission to appeal in relation to the assisted suicide ban. It refused permission to appeal to the appellant, who suffered from motor neurone disease and wanted to die with assistance. Whilst he had a right at common law to refuse consent to continue his non-invasive ventilation (hereinafter ‘NIV’), which was likely to have led to his death within a few minutes once he became dependent on NIV, he did not accept that the withdrawal of his NIV under heavy sedation would be a dignified death. He instead wanted a medical professional to prescribe him medication so that he could die at a time of his choosing. The Panel gave reasons, acknowledging that the case raised arguable points of law, and that the ban on assisting suicide was an interference with Article 8. It referred to the difference between letting someone die and taking active steps to bring about their death as being central to the common law for centuries. It further noted as follows:

The Panel went on to state as follows:

As a result of the above and noting some reluctance on the part of the Panel, it was concluded that the prospects of the case were not sufficient to justify granting permission to appeal.

Following the Court's judgment in Koch v. Germany (no. 497/09, 9 July 2012), the Federal Administrative Court, by way of an action for retrial of the case, considered the merits of the appeal on points of law lodged by Mr Koch, whose wife (referred to as Ms K.) had been denied authorisation to acquire a lethal dose of sodium pentobarbital to commit suicide by the Federal Institute of Drugs and Medical Device (hereinafter ‘the Federal Institute’). In its judgment of 2 March 2017 (BVerwG 3 C 19.15), the Federal Administrative Court partly upheld Mr Koch's appeal. It considered that the purpose of preventing abuses and protecting vulnerable persons from decisions taken hastily or without full mental capacity no longer justified the prohibition, with no exceptions, on acquiring sodium pentobarbital in order to commit suicide, if the acquirer was in a situation of extreme distress due to a severe and incurable disease. According to the Federal Administrative Court, such an exception had to be made if ‘— firstly — the severe and incurable disease [was] connected with grave physical suffering, in particular severe pain, which result[ed] in unbearable psychological strain for the affected person and could not be reduced sufficiently …; — secondly — the affected person [was] able to take decisions and [had] made the free and earnest choice to end his or her life; and if he or she — thirdly — [did] not have any other reasonable option to carry out the wish to die’. It further held as follows:

In its judgment of 26 February 2020 (2 BvR 2347/15 and others), the German Federal Constitutional Court held that the prohibition of professional assistance in suicide (Article 217 of the Criminal Code) violated the general right of personality, which encompassed the right to a self-determined death. It found that this right was not limited to the right to refuse, of one's own free will, life-sustaining treatments. It also concerned cases where individuals decided to actively take their own life, and this was irrespective of whether they were seriously or terminally ill. Furthermore, it also encompassed the freedom to seek and, if offered, utilise assistance provided by third parties for this purpose.

The Federal Constitutional Court found that Article 217 of the Criminal Code amounted to an interference with fundamental rights in relation to persons wishing to commit suicide. The interference was particularly serious and had to be measured against the standard of strict proportionality. The Federal Constitutional Court went on to find that the prohibition in question pursued the legitimate aim of protecting autonomy and life from, inter alia, risks related to a normalisation of suicide and social expectations which would pressurise individuals, especially elderly and ill persons, into taking their own life. Referring to domestic and foreign research, it noted that a frequent motive for seeking assistance in suicide was the desire not to burden relatives or third parties.

The Federal Constitutional Court observed that although Article 217 was limited to professional assisted-suicide services, that is, a specific form of suicide assistance, the fact remained that in many situations individuals would be left with no actual and reliable options to act upon a decision to commit suicide if assisted-suicide services were not available. It noted in this connection that in the absence of such services, individuals were largely dependent on the willingness of doctors to provide assistance, at least in the form of prescribing the substances necessary to commit suicide. However, the laws and codes governing the medical profession provided for prohibitions on assisted suicide in many regions of Germany and they largely excluded any real prospect of such assistance being rendered to the individual in need of it. Moreover, while improvements in palliative care might help to reduce the number of cases where terminally ill patients wished to die, they could not compensate for the impugned restriction in cases where the decision to commit suicide was taken in pursuit of free self-determination. The Federal Constitutional Court also found that the State could not simply refer the individual to the option of using assisted suicide offered abroad, as fundamental rights should be ensured with the domestic legal order.

The Federal Constitutional Court found that the prohibition on professional assisted suicide services reduced the possibilities for assisted suicide to such an extent that there was de facto no scope for the individual to exercise their constitutionally protected freedom. This, in the Federal Constitutional Court's view, could not be justified by the protection of others. In the reasons supporting its decision, the Federal Constitutional Court also referred to the Court's case-law, especially to Pretty, cited above, and Haas v. Switzerland (no. 31322/07, ECHR 2011).

On 7 November 2023 the Federal Administrative Court upheld the lower court's finding that the Federal Institute was currently under no obligation to exceptionally authorise the acquisition of sodium pentobarbital for the purpose of committing suicide (judgment 3 C 8.22). It noted, inter alia, that the codes of medical ethics now allowed doctors to provide assistance in suicide, and some — albeit a few — doctors were willing to do so. Professional suicide services could be used to establish contact with such doctors, who were able to prescribe drugs other than sodium pentobarbital (for example, an orally administered combination of several drugs, or an injection of thiopental). While these options entailed several disadvantages and hurdles compared to the self-administered use of sodium pentobarbital, these constraints were considered proportionate and justified, taking into account the high risks involved in the distribution of sodium pentobarbital (such as misuse or abuse, including with regard to vulnerable persons).

In judgment no. 242 of 25 September 2019, the Italian Constitutional Court declared Article 580 of the Criminal Code, which provides for the criminal offence of inciting or assisting a person to commit suicide, unconstitutional, in so far as it did not exclude criminal liability for persons who facilitated the fulfilment of the free and informed intent to commit suicide of a person ‘who [was] being kept alive by life-sustaining treatments and [was] suffering from an irreversible condition that [was] a source of intolerable physical or mental suffering but who [was] fully capable of taking free and informed decisions, provided that those conditions and the procedures for implementation have been verified by a public entity within the national health service, following an opinion by the ethics committee with geographical jurisdiction’.

The Constitutional Court acknowledged that the criminalisation of assisting suicide was not, in itself, contrary to the Constitution, in that it was intended to protect the right to life, especially of the most vulnerable persons, from external interference. Nevertheless, it considered that with regard to the situation before it (concerning certain patients who were dependent on life-sustaining treatment) such criminalisation was not compliant with the Constitution. It noted that the patients in question could already decide to allow death to take its natural course by requesting the interruption of life-sustaining treatment (including artificial hydration and nutrition) under continuous heavy sedation. However, this might be a slower process, which would also prolong the anguish of those close to them. Moreover, the Constitutional Court noted that, while the primary importance of the value of life did not rule out a duty to respect patients' decision to die by means of withdrawing treatments — even when this required an action by third parties (that is, by removing or turning off devices, and administering heavy and constant sedation and pain medication) — there was no reason for the same value to become an absolute obstacle, reinforced by criminal liability, to granting a patient's request for assistance in suicide, and thereby avoiding the slower decline resulting from the withdrawal of life-support devices. In the Constitutional Court's view, the criminal prohibition in question unreasonably restricted patients' freedom of self-determination with regard to the choice of treatments, including those designed to relieve suffering.

The Constitutional Court also held that merely decriminalising assisted suicide would open the way to various and serious risks, leaving the most vulnerable unprotected. Therefore, given the lack of action on the part of the legislature, and relying largely on the Law on Advanced Medical Directives, it set out the procedural requirements that had to be met for the exemption from punishment to apply.

In Carter v. Canada (Attorney General) (2016 SCC 4, [2016] 1 S.C.R. 13), the leading plaintiff was a woman diagnosed with ALS. The Canadian Supreme Court found that the legislative landscape on the issue of PAD had changed in the two decades since Rodriguez v. British Columbia (Attorney General) ([1993] 3 S.C.R. 519, see Pretty, cited above, § 66), referring to increasing recognition of PAD in foreign jurisdictions. It noted that these regimes had produced a body of evidence about the practical and legal workings of PAD and the efficacy of safeguards for the vulnerable. It framed the target of prohibition of PAD as ‘the narrow goal of preventing vulnerable persons from being induced to commit suicide at a time of weakness.’ Having regard to the severe impact of the prohibition on affected individuals, the majority opinion of the Supreme Court concluded that the prohibition on PAD was overly broad and failed to be minimally impairing. In its view ‘the blanket prohibition sweeps conduct into its ambit that is unrelated to the law's objective.’ In this connection, it addressed the State's argument that the blanket prohibition was necessary in that there was no reliable way to identify those who were vulnerable and those who were not. It endorsed the trial judge's reasoning, which referred to the assessment processes in comparable end-of-life medical decision-making, in which concerns about decision-making capacity and vulnerability likewise arose. In the trial judge's view ‘[l]ogically speaking, there is no reason to think that the injured, ill, and disabled who have the option to refuse or to request withdrawal of life-saving or life-sustaining treatment, or who seek palliative sedation, are less vulnerable or less susceptible to biased decision-making than those who might seek more active assistance in dying.’ Therefore, it was concluded that the risks that the State described were already part of the existing medical system.

The applicant argued that although he had full decision-making capacity, the regulatory framework in Hungary did not allow him to hasten his inevitably approaching death and thereby to shorten the unbearable suffering related to his incurable disease. He agreed with the submissions from the HCLU regarding the state of hospice-palliative care in Hungary (see paragraph 118 below), but disputed the Government's arguments and most of the arguments put forward by the Italian Government, the ECLJ, the ADF and the CNK (see paragraphs 114–116 below). In his view, the existence of the right to a self-determined death could not be contested. His case concerned only the question of the scope of this right, which was to be determined taking account of social changes and the particular circumstances of his case. He submitted that his case ought to be distinguished from that of Pretty (cited above), because (i) it also concerned the extraterritorial effect of the Hungarian ban on assisted suicide; (ii) prosecution of the offence of assisted suicide was mandatory; and (iii) the legal and social context in Europe had changed since the Court had adopted the judgment in Pretty, and a trend had emerged towards legalisation of PAD. He submitted detailed arguments in support of his position, which can be summarised in the following manner.

The Government were of the opinion that the present case did not call for a change of the Court's position as expressed in Pretty (cited above). They disputed the applicant's assertions and put forward the following arguments.

The applicant submitted that Hungarian law accorded different treatment to those terminally ill persons with mental capacity who suffered from refractory symptoms but could hasten their death only by means of PAD, and those who could do so by having recourse to RWI. In this connection, he submitted that RWI could be used by patients in need of life-sustaining interventions who were terminally ill, the latter concept not being defined in law. RWI was allowed even when it required active participation on the part of medical staff. The applicant did not require life-sustaining intervention and might never need it, or might need it only at the very late stage of his disease. In his view, denying him access to PAD, which was the only option that would enable him to implement his end-of-life decision, while allowing others in an analogous situation to have access to RWI, was not justified. He also argued that this type of discrimination was not addressed in Pretty (cited above).

The Government submitted that RWI and PAD were inherently different procedures. Referring to the Oviedo Convention (see paragraphs 35 and 36 above), they argued that, as a general rule, patients had a right to refuse medical treatment. With regard to life-sustaining treatment, this right was restricted because of the State's positive obligation to protect life. The right to RWI could be exercised by patients in terminal situations whose life was dependent on life-sustaining treatment and whose death was imminent, under certain conditions, which were meant to ensure that any decision concerning RWI was free from undue influence. The applicant, if he qualified as a terminally ill person, would be able to have recourse to RWI under the same conditions as anyone else. The Government argued that patients who were not in need of life-sustaining treatment were not in a comparable situation to those who were. As an illustration, the Government submitted that pneumonia could also have a fatal outcome if the patient refused antibiotics, but this did not mean that patients who were not suffering from pneumonia were discriminated against because they could not make an end-of-life decision by refusing antibiotics.

The Government further argued that RWI was not an intentional deprivation of life but simply an acceptance of the fact that the patient's life could not be saved and thereafter allowing death to occur naturally. In the case of PAD, death was intended to be actively and deliberately hastened by the intervention of the medical profession.

According to the Court's settled case-law, in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous or relevantly similar situations with regard to the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention and the Protocols thereto. Such a difference of treatment is discriminatory if it has no objective and reasonable justification, in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The notion of discrimination within the meaning of Article 14 also includes cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention. As to the burden of proof in relation to Article 14 of the Convention, the Court has held that once the applicant has demonstrated a difference in treatment, it is for the Government to show that the difference was justified (see Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, §§ 53, 64 and 65, 24 January 2017, and Biao v. Denmark [GC], no. 38590/10, §§ 88-90 and 92, 24 May 2016).

The Court takes note of the Government's argument that RWI and PAD are inherently different acts in terms of their causation and intent (see paragraph 172 above), and that the applicant cannot be compared to those persons whose lives depend on life-sustaining treatment (see paragraph 171 above). However, the Court is not required to determine these contested points as, in any event, the alleged difference in treatment has objective and reasonable justification. As a further preliminary point, it should be noted that the applicant also argued that terminal illness as the condition to have recourse to RWI was not defined in law (see paragraph 170 above). The Court notes that the Healthcare Act refers to a serious illness leading to death within a short period of time (see paragraph 21 above). While the Healthcare Act does not specify that period in further detail, the Court does not find this of particular importance, especially since the applicant's main argument is based on the fact that he is expected to need continuous life-sustaining treatment, if at all, only at the very end stage of his disease.

The Court notes that the right to refuse or request discontinuation of unwanted medical treatment is inherently connected to the right to free and informed consent to medical intervention, which is widely recognised and endorsed by the medical profession, and is also laid down in the Oviedo Convention (see paragraphs 35, 36, 41 and 56 above; see also Mayboroda v. Ukraine, no. 14709/07, § 52, 13 April 2023, and Reyes Jimenez v. Spain, no. 57020/18, §§ 29 and 30, 8 March 2022). This point has also been consistently reiterated by the Court with regard to situations where the refusal to accept a particular treatment might lead to a fatal outcome (see Pretty, cited above, § 63; V.C. v. Slovakia, no. 18968/07, § 105, ECHR 2011 (extracts); and Jehovah's Witnesses of Moscow and Others v. Russia, no. 302/02, § 135, 10 June 2010). It must be acknowledged that the refusal or withdrawal of treatment in end-of-life situations is the subject of particular consideration or regulation because of the need to safeguard, inter alia, the right to life (see paragraphs 37, 38, 130, and 171 above); however, such refusal or withdrawal is intrinsically linked to the right to free and informed consent, rather than to a right to be assisted in dying.

The Court further notes that it has found it justified for Hungary to maintain an absolute ban on assisted suicide, on account, among other aspects, of the risks of abuse involved in the provision of PAD, which may extend beyond those involved in RWI (see paragraph 150 above); the potential broader social implications of PAD (see paragraph 149 above); the policy choices involved in its provision (see paragraphs 151, 157 and 161 above); and the considerable margin of appreciation afforded to the States in this respect (see paragraph 144 above). Similar cogent reasons exist under Article 14 for justifying the allegedly different treatment of those terminally ill patients who are dependent on life-sustaining treatment and those patients who are not, and who in consequence cannot hasten their death by refusing such treatment. The Court would note in this connection that, in contrast to the situation with regard to PAD, the majority of the member States allow RWI (see paragraph 59 above). Furthermore, as mentioned above, the right to refuse or withdraw consent to interventions in the health field is recognised also in the Oviedo Convention, which, in contrast, does not safeguard any interests with regard to PAD (see paragraphs 35 and 36 above). The Court therefore considers that the alleged difference in treatment of the aforementioned two groups of terminally ill patients is objectively and reasonably justified.

It follows that there has been no violation of Article 14 taken in conjunction with Article 8 of the Convention.