by Paul Coleman:

For several decades the European Court of Human Rights (ECHR) has taken an evolutive approach to the meaning of the European Convention on Human Rights, and the notion that the Convention is “a living instrument” now appears to be uncontested. Nevertheless, the Court’s evolutive approach towards assisted suicide and euthanasia is remarkable.

Before last the recent decision in the case of Gross v Switzerland (2013), the clear case-law of the Court had been that there is no right to assisted suicide or euthanasia under the Convention, nor are there any positive obligations on the State in regard to these issues. In fact, the Court had unanimously ruled on the issue of assisted suicide in the very similar case of Haas v Switzerland in 2011, holding that restricting access to lethal drugs was not in violation of the Convention. Even with the evolutive approach in mind, finding a violation of the Convention in Gross v Switzerland seemed farfetched. But the Court found one.

In 2010 Alda Gross, a Swiss citizen, took a complaint to the ECHR against the Swiss government after she was refused a lethal poison that she wanted to commit suicide. Although Switzerland is one of only four European countries to allow doctor-prescribed death in certain circumstances, individuals can obtain sodium pentobarbital, a drug that can be used to commit suicide, only after a medical examination and prescription by a doctor.

As she was not suffering from a fatal illness, Gross failed to find a doctor prepared to prescribe the lethal substance to her, so she appealed to the national courts in 2009. The Swiss courts held that the restrictive conditions placed on the drug are, quite obviously, in place to prevent abuse and cannot be overridden in the absence of a medical prescription. The national courts also noted that Gross did not suffer from a fatal disease, but has simply expressed her wish to die because of her advanced age and her growing fragility. A position reiterated by the Government before the ECHR.

Chillingly, the Court introduced its assessment of the case with the following statement: “Without in any way negating the principle of the sanctity of life protected under the Convention, the Court has considered that, in an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity.”

After a painfully short legal analysis, the Court went on to hold that, “the applicant’s wish to be provided with a dose of sodium pentobarbital allowing her to end her life falls within the scope of her right to respect for her private life under Article 8 of the Convention [Right to respect for private and family life].”

Having found that the right to a lethal poison comes within the scope of the Convention, the Court then assessed whether there had been a breach of this “right”.

Rather than tackling the issues head on, Court instead focussed on the guidelines issued by the Swiss authorities. It concluded that, “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.”

However, the ruling was a four votes to three decision and in the dissenting opinion, the other three judges stated that the Swiss guidelines, “Sufficiently and clearly defines the circumstances under which a medical practitioner is allowed to issue a prescription for sodium pentobarbital.”

Therefore, four judges found that the right to poison is protected under the Convention and unclear guidelines surrounding this “right” are in violation of the Convention; three judges found that the guidelines were clear, that the applicant did not qualify and that the position of the Swiss authorities was plainly justifiable under the Convention.

This is now the second time in quick succession that the ECHR has found a violation of Article 8 in an assisted suicide case, without actually declaring that assisted suicide is a “human right”.

In the recent case of Koch v Germany (2012), the Court held that there had been a violation of Article 8 of the Convention based on procedural grounds because the German administrative and judicial bodies refused to examine the merits of the applicant’s motion to purchase lethal drugs.

By finding Germany in violation of the Convention in 2012 and now Switzerland, the court is moving Europe closer towards accepting assisted suicide and euthanasia as a “human right”.

Yet, as the Court had pointed out in Haas v Switzerland as recently as 2011: “The vast majority of Member States appear to place more weight on the protection of an individual’s life than on the right to end one’s life.” Indeed, of the 47 Member States of the Council of Europe, only four have openly legalized assisted suicide: the Netherlands, Belgium, Luxembourg and Switzerland. Around the globe, instances of legalized assisted suicide or euthanasia are even rarer.

It is therefore vital that the recent decision by the Court is overturned by the Grand Chamber. Aside from showing no respect for the right to life under the European Convention on Human Rights, the majority decision of the Second Section of the Court shows no respect for the principle of subsidiarity or its own previous case-law.

Paul Coleman is legal counsel with Alliance Defending Freedom in Vienna, Austria, where he specializes in international litigation with a focus on European law.