January 27, 2011
The applicant in Haas v. Switzerland was a 57 years old male who suffered from a bipolar disorder since nearly 20 years. Wishing to commit suicide, Mr. Haas attempted to obtain a lethal substance (sodium pentobarbital) that was only available on medical prescription. To that end, he contacted several psychiatrists, but was not able to obtain a prescription. Mr. Haas filed applications with the domestic authorities to obtain permission to acquire the substance without prescription, but they all rejected his applications, up to the Federal Tribunal, inter alia because his case did not reveal any urgency that would justify departure from the regulatory framework.
Mr. Haas then sent a letter to 170 doctors, requesting their assistance in obtaining a prescription. None replied positively. Some answered that they were not competent to deliver such a prescription, some refused for ethical reasons and others replied that his condition was treatable.
Mr. Haas subsequently filed an application with the European Court of Human Rights, complaining of a violation of his right to respect for his private life. He argued that, due to the domestic courts’ decisions, his right to decide the moment and the manner of his death had not been respected. He maintained that, in exceptional circumstance, such as his, access to the necessary substances should be provided by the State.
A few words on the regulatory framework on assisted suicide in Switzerland are required before examining the case. The relevant Swiss legislation imposes a criminal sanction of minimum five years imprisonment or a fine on those who, guided by selfish aims, incite someone to commit suicide or assist them in committing suicide. This provision is not applicable to physicians prescribing substances to people wishing to commit suicide, since physicians do not prescribe those substances for selfish reasons. However, physicians are subject to the specific legislation on the prescription of drugs, which determines that they can be held criminally responsible for prescriptions they issued unjustly. Based on this provision, the Federal Tribunal of Switzerland had already confirmed the conviction of a psychiatrist for having neglected the incapacity of his patient for free judgment in assisting him to commit suicide.
In its judgment, the European Court of Human Rights did not follow Mr. Haas. The Court did confirm its jurisprudence in Pretty v. The United Kingdom that the choice to avoid what in the applicant’s view would be an undignified and painful end to his or her life falls within the scope of article 8. The Court recognised that, therefore, the right of an individual to decide the manner and moment at which his life should end is one of the aspects of the right to respect for private life, provided that the person in question is capable of forming his or her own free will in this regard and to act accordingly. The inclusion of two conditions denotes that this right is not equal to a right to euthanasia: one has to be of sound mind ánd body to be able to exercise the right. The latter was of course the problem faced by Diane Pretty: she was not physically capable of committing suicide, despite having full capacity to determine freely that she no longer wanted to live. Yet, Mr. Haas did not suffer from any physical obstacles impeding him from going through with his plan to die. Instead, he was facing a rather technical obstacle: he could not obtain the substance he wanted without a prescription and he was not able to get a physician to provide him with such a prescription. It is precisely here that the seeds are sown for puzzling elements at the end of the Court’s judgment. Mr. Haas met the requirements put forward by the Court to exercise his right to decide the manner and moment at which his life should end.
Arguably, the Court realised it would get into trouble and, early on in its judgment, it confirmed the Swiss Federal Tribunal’s finding that the instant case did not concern the freedom to die (which is essentially part and parcel of the right to decide the manner and moment of death; it is just phrased less appealingly). Instead, the Court determined that the application should be examined from the angle whether the State was under a positive obligation to take the necessary measures to permit a dignified suicide (that is – in the instant case – by allowing the applicant to obtain a substance that will cause him as little pain and suffering as possible, without a prescription).
The Court then confirmed that the case entailed a conflict between Convention rights, holding that the Convention should be read as a whole and that article 2 should thus be taken into account. According to the Court, art. 2 entails an obligation for the national authorities to prevent a person from committing suicide if that decision is not a free one, taken in full knowledge of the facts. It is important to acknowledge that this obligation did not apply in Mr. Haas’ situation, since he had taken his decision freely and in full knowledge of the facts. The Court expressly recognised that the applicant had expressed his free will to commit suicide in a manner that he considered to be certain, dignified and painless.
The Court subsequently confirmed that the State enjoyed a “considerable” margin of appreciation in the context of assisted suicide, in light of the absence of a European consensus on the matter. It was also of the opinion that the legal regime in force in Switzerland, providing for the need to obtain a medical prescription, had the aim of preventing abuse and of protecting anyone from making a rash decision. According to the Court, those objectives even necessitate preventive measures in a country like Switzerland, which had adopted a liberal approach on the matter. The Court then went on to confirm the arguments invoked by the government, which relied mainly on the risk of abuse and the justified hesitance of physicians in light of the risk of criminal penalties should they misinterpret the delicate question of the capacity of the applicant to decide freely. Interestingly, the Court also refused to attach decisive weight to the 170 letters sent by the applicant after his appeal to the Federal Tribunal had been rejected. In the opinion of the Court, those letters could not be taken into account a priori precisely because they were sent after the Federal Tribunal had decided on the case. It is not entirely clear to me what the Court means by this, but in the end it does not matter much, because the Court effectively went on to examine the effect of the letters. In doing so, it endorsed the Government’s assertion that they were not conducive to soliciting a positive response, since the applicant indicated in the letters that he rejected all forms of treatment, thus excluding the possibility of alternatives to suicide.
At first sight rather bizarrely, the Court still concluded that, based on the information before it, it was not convinced that it was impossible for the applicant to find a specialist, ready to assist him in committing suicide. As a result, the Court did not find his right to choose the moment and manner of his death to be merely theoretical and illusory. The Court then concluded in an equally ambivalent manner that, even supposing that the States have a positive obligation to take measures permitting the facilitation of dignified suicide, the Swiss authorities had, taking their margin of appreciation into account, not violated this obligation. Art. 8 had thus not been violated.
The finding that the applicant’s right was not merely theoretical and illusory was arguably the result of the Court’s earlier recognition of the right to choose the moment and manner of his death. Having recognised the existence of such a right, it must have felt compelled to find that the applicant was able to exercise it. What is more, given the applicant’s reliance on dignity, it had to find that it was not impossible for the applicant to exercise that right in a dignified manner. Thus, the Court had to hold – counter intuitively – that the applicant’s right was not illusory, despite the fact that he had not received a positive response from any physician whom he requested to assist him in committing suicide.
The second finding is also somewhat disappointing. After having announced that it had to examine the case from the angle of the positive obligation of the State to take the necessary measures to permit a dignified suicide, the Court ultimately did not answer the question whether such a positive obligation exists.
Granted, the question faced by the Court in this case (as in Pretty v. The United Kingdom) was a difficult one. How far can/should states go in accommodating someone’s wish to die, taking into account their obligation under art. 2 to protect that same person’s life? I think this is a case in which the Court would have benefited from relying more clearly – also in the latter paragraphs of its judgment – on the regulatory framework in place in Switzerland to decide that, in the circumstances of the case, the applicant’s right had not been violated because the domestic legislation had laid down a framework that struck a fair balance between the applicant’s right to respect for his private life and his right to life (or perhaps rather the State’s obligation to protect his life). That explains why his right was not illusory, despite the fact that no physician wanted to assist him in committing suicide. They were merely of the opinion that, following the regulatory framework, he did not fall into the category of people who could rely on such assistance in the form of a prescription of a specific substance (without for instance deliberation on alternative treatments to suicide or prolonged medical examination to ensure his decision was taken freely and after due consideration of the consequences). Reliance on the fair balance in the regulatory framework also explains why, under the circumstances of Mr. Haas’ case, the national authorities were not under any positive obligation to provide him access to the substance without a prescription (exceptions only being possible in urgent cases and his case not being urgent). In this respect, it hardly seems desirable to hold the State under a general positive obligation to take the necessary measures to permit someone to commit suicide in a dignified fashion. Not interfering with someone’s freely decided plan to commit suicide is a totally different thing than providing him with the means to do so. The described positive obligation becomes even more questionable if one considers that also the negative right could legitimately be regarded as granting too much weight to someone’s right to self-determination. After all, if someone attempts to commit suicide and paramedics find him still alive, should they let him die? And can the State be held responsible if they save him?
Ultimately, it seems Mr. Haas will – if he wishes to pursue his wish to die – need to resort to other measures. This can perhaps be regretted, because the alternatives might entail increased pain and suffering. But it also means that he is not effectively prevented from committing (assisted) suicide, unlike Diane Pretty. His case is thus certainly not as tragic as hers was.
For more coverage on this case, see the post on the Combats pour les Droits de l’Homme blog, here. It is in French, but that has the valuable advantage that – as native speakers – they generally offer a better interpretation of the nuances present in French judgments, such as this one.