Gross v Switzerland: the Swiss regulation of assisted suicide infringes Article 8 ECHR
This guest post was written by Daria Sartori, Ph.D candidate in Criminal Law at Trento University (Italy). She is interested in the relationship between Criminal Law and Human Rights, and she is presently working in Italy and abroad on a research project about the Principle of Legality and the European Convention on Human Rights.
Gross v Switzerland is the first judgment in which a member State’s position on assisted suicide is held to be incompatible with Article 8 ECHR by the European Court of Human Rights.
The Court undoubtedly reached an original and interesting conclusion, albeit by a strict majority of four votes to three. However, the relevance of this judgment is more apparent than real: Gross v Switzerland opens the door to the concrete use of Article 8 ECHR in cases relating to assisted suicide, without implying the acknowledgment of a “right to die” under the European Convention.
Leaving aside any criticism of the European Court’s attitude toward this delicate (and much debated) topic, in this post I wish to highlight a relevant mistake affecting the Court’s reasoning.
The case dealt with a peculiar situation, different from those considered by the Court in its previous judgments on assisted suicide (see, e.g., Pretty v the UK and Haas v Switzerland, both concerning seriously ill persons). The applicant was an old woman, affected by a continuing decline of her physical and mental faculties, due to her advanced age. Having attempted suicide unsuccessfully, she wished to end her life painlessly and “safely”, by taking a lethal dose of sodium pentobarbital. The applicant’s ability to form a reasoned and well-considered choice on suicide had been attested by a psychiatric examination. However, the applicant’s request to be given a prescription for sodium pentobarbital had been declined by three physicians. Their denial had been grounded on the need to respect the Swiss medical ethics guidelines, according to which a legitimate medical intervention in suicide is allowed only when the patient suffers from an illness deemed to end in “death within a matter of days or a few weeks”. The applicant’s wish to die, taken on its own, was thus not sufficient to justify the issuing of a medical prescription of sodium pentobarbital.
The applicant’s appeals to obtain an exemption from the need of a prescription had been rejected. Both the Administrative Court of the Canton of Zurich and the Swiss Federal Supreme Court had considered that, under the Federal Supreme Court’s case-law, only respect of the medical ethics guidelines can exempt physicians from criminal liability for assisted suicide, and that this exemption is to be handled with “utmost restraint”.
Mrs Gross had thus gone to the European Court of Human Rights, complaining that the Swiss authorities had violated her right to private life, by preventing her to decide when and how to die.
Not surprisingly, the Strasbourg Court agreed that the applicant’s claim fell within the scope of Article 8 ECHR. The Court had actually no choice to do otherwise, because its previous case-law on assisted suicide had cleared the path for this option. However, the Court departed from its previous case-law by deciding to analyse Mrs Gross’s case from a new (and unexpected) perspective: that of legal certainty.
The Court held that, since the Swiss medical ethical guidelines apply only to patient suffering from an incurable and deathly illness and do not have the formal quality of law, the situation of people in Mrs Gross’ state is not regulated by Swiss law. This lack of regulation is likely to cause “a chilling effect on doctors”, and a “considerable degree of anguish” on people in the applicant’s state. The Court thus concluded:
“Swiss law, while providing the possibility of obtaining a lethal dose of sodium pentobarbital on medical prescription, does not provide sufficient guidelines ensuring clarity as to the extent of this right. There has accordingly been a violation of Article 8 of the Convention in this respect”.
The Court carefully pointed out that its conclusions related only to the absence of clear and comprehensive legal guidelines, without in any way taking up a stance on their substantive content.
The analysis of the applicant’s claim from the point of view of legal certainty is probably motivated by the Court’s fear of pronouncing on the “slippery” topic of positive obligations. However, the judgment is affected by a basic mistake.
According to the Court’s well-established case-law, interferences with the right to private life do not infringe legal certainty if they are grounded on an accessible and foreseeable law. In Switzerland, the Federal Supreme Court’s case-law clearly denies that assisted suicide can be granted outside the limited exception of patients suffering from a terminal illness. The European Court’s assertion that “the applicant must have found herself in a state of anguish and uncertainty regarding the extent of her right to end her life” is thus unfounded: Mrs Gross should have known pretty well that her situation did not give rise to any possible expectation under the Swiss regulation on assisted suicide. In addition, the European Court’s complaint that assisted suicide in Switzerland is not regulated by “clear State-approved guidelines” (because the Swiss medical ethical guidelines do not have the formal quality of law) runs counter the Strasbourg’s notion of “law” as a concept which comprises written as well as unwritten law (i.e., case-law: see Sunday Times v the UK). In principle, it is true that the Swiss medical ethical guidelines can not be considered as law: but when the Federal Supreme Court decided to attach them relevance by exempting physicians from their criminal liability in assisted suicide, they automatically became “State-approved” norms.
Indeed, the choice of not referring explicitly to the previous case-law on legal certainty and on the allowed interferences with Article 8 ECHR is an interesting signal: the Court was aware that its own case-law would not have supported the choice of considering Mrs Gross’s treatment as an illegitimate interference with her right to private life. This conclusion is strengthened by Judges Raimondi, Jočienė and Karakaş’s dissenting opinion, stating that “the Federal Supreme Court’s case-law … sufficiently and clearly defines the circumstances under which a medical pratictioner is allowed to issue a prescription for sodium pentobarbital” .
But the Court’s conclusions in the present case (and the strict majority by which they were approved) reveals a dilemma: most of the judges wanted to push further the European Court’s position on assisted suicide; but, at the same time, they did not want to follow the dangerous path of positive obligations, where it would have been necessary either to reject the applicant’s claim, or to explicitly reverse the Court’s recent judgment in the Haas case.
However, this fear of taking a stance on assisted suicide leads to paradoxical consequences. States like Switzerland, where the law allows, under certain conditions, assisted suicide might be subject to a stricter review by the Court than states like Italy, where the law criminalizes assistance to suicide without any distinction.
Does this mean that states providing a regulation for this delicate topic must fear the Court more than those completely lacking a regulation? Not only did the Court give this impression in the Gross judgment. It also came to suggest indirectly how the Swiss State should have regulated assisted suicide, by referring to “clear, State-approved guidelines defining the circumstances under which medical practitioners are authorised to issue the requested prescription in cases where an individual had come to a serious decision, in the exercise of his or her free will, to end his or her life”.
It seems to me that the Court should have rather had the courage of assessing, once and for all, that where an individual has come to a free and serious decision to end his or her life, this right should be granted by the Member States of the European Convention, because the respect for human dignity and human freedom is the “very essence of the Convention” (Pretty v the UK).