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. Continue reading

Deference or Substantive Resolution? The ECJ’s Brüstle Judgment on the Use of Human Embryos for Scientific Research

This post was co-authored by Wannes Van Hoof* and Stijn Smet.

Recently, the European Court of Justice (ECJ) was asked to deliver a preliminary ruling on the use of human embryos for scientific research. The case concerned an application by Greenpeace, seeking annulment from the German courts of a patent held by Mr. Brüstle. The patent had been obtained by Mr. Brüstle in 1997 and relates to the isolation and purification of neural precursor cells, processes for their production from embryonic stem cells and their use for the treatment of neural defects. The patent had already led to the development of clinical applications, in particular for patients suffering from Parkinson’s disease. Greenpeace took issue with the patent and demanded its annulment in court, because the process involves the use and destruction of human embryos.

In this post, Wannes Van Hoof, a colleague from the Bioethics Institute Ghent, and Stijn Smet will take a look at the ruling of the ECJ, both from an ethical and a legal perspective. In doing so, we will address issues that also confront the European Court of Human Rights in cases involving ethical and moral dilemmas, such as the question on the role of subsidiarity and deference on the one hand and a need for more substantive guidance by international courts in these matters on the other.

Continue reading