CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 juin 2024

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font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .fixListIndent { list-style-position: inside } FIRST SECTION CASE OF DÁNIEL KARSAI v. HUNGARY (Application no. 32312/23)   JUDGMENT   Art 8 • Private life • Impossibility for terminally ill patient, suffering from incurable progressive neurodegenerative disease, to be assisted in dying, by virtue of blanket and extraterritorial ban • Art   8 applicable • Criminal-law prohibition on assisted suicide, in Hungary and abroad, constituting restriction on enjoyment of right to self ‑ determined death • Complaint engaging both negative and positive obligations • States afforded considerable margin of appreciation • Majority of member States continued to prohibit and prosecute assistance in suicide, including physician-assisted dying (“PAD”), despite emerging trend towards decriminalisation • No basis in relevant international instruments for concluding that member States were thereby advised or required to provide access to PAD • Legalisation of PAD entailed important social implications and risks of abuse and error • High-quality palliative care, including access to effective pain management, essential to ensuring dignified end of life • Applicant did not argue that palliative care available to him was inadequate or that he would not be able to receive palliative sedation to relieve refractory suffering • Refusal to receive sedation constituting legitimate personal choice, which could not in itself require authorities to provide alternative solutions or legalise PAD • Existential suffering related essentially to personal experience, susceptible to change and not lending itself to straightforward objective assessment; could not be accepted as argument militating for obligation under Art   8 to legalise PAD • Domestic authorities had not fallen foul of any positive obligation that might arise from Art   8 in regard to palliative care • Criminal ban on assisted suicide, including its application to any person assisting applicant in present case to have recourse to PAD abroad, not disproportionate • Respondent State’s margin of appreciation not overstepped • Need for appropriate legal measures to be kept under review, having regard to developments in European societies and relevant international standards on medical ethics Art 14 (+ Art 8) • Alleged discrimination between patients who were dependent on life-sustaining treatment and those who were not, and who consequently could not hasten their death by refusing such treatment • Right to refuse or request discontinuation of unwanted medical treatment inherently connected to right to free and informed consent to medical intervention, widely recognised and endorsed by medical profession and recognised in Council of Europe’s Oviedo Convention • Majority of member States permitted refusal by patient or withdrawal at patient’s request of life-sustaining or life ‑ saving interventions • Alleged difference objectively and reasonably justified   Prepared by the Registry. Does not bind the Court.   STRASBOURG 13 June 2024   FINAL   02/09/2024     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   TABLE OF CONTENTS _Toc198561000 INTRODUCTION PROCEDURE THE FACTS RELEVANT LEGAL AND OTHER MATERIAL I.   DOMESTIC LEGAL FRAMEWORK AND STANDARDS OF ETHICAL CONDUCT A.   The Criminal Code and the explanatory memorandum thereto B.   The Code of Criminal Procedure C.   Healthcare Act 1.   Right to self-determination and to refuse treatment in the Act on Healthcare 2.   Palliative care D.   The Code of Ethics of the Hungarian Medical Chamber II.   RELEVANT DOMESTIC LEGAL PRACTICE III.   INTERNATIONAL LEGAL TEXTS AND PROFESSIONAL STANDARDS A.   Council of Europe 1.   The Oviedo Convention 2.   Parliamentary Assembly Recommendations and Resolutions (a)   Recommendation 1418 (1999) of the Parliamentary Assembly on the protection of the human rights and dignity of the terminally ill and the dying (b)   Parliamentary Assembly Resolution 1649 (2009) on palliative care: a model for innovative health and social policies (c)   Parliamentary Assembly Resolution 1859 (2012) on protecting human rights and dignity by taking into account previously expressed wishes of patients (d)   Parliamentary Assembly Resolution 2249 (2018) on the provision of palliative care in Europe 3.   Guide on the decision-making process regarding medical treatment in end-of-life situations B.   United Nations C.   Inter-American Convention on Protecting the Human Rights of Older Persons D.   Recommendations by the European Association of Palliative Care IV.   EVIDENCE FROM THE EXPERTS HEARD BY THE COURT A.   Prof. Aubry B.   Prof. Sándor V.   RELEVANT COMPARATIVE-LAW MATERIAL A.   Rules governing physician-assisted dying (PAD) and refusal or withdrawal of life-sustaining interventions (RWI) B.   Selected case-law 1.   England and Wales 2.   Germany 3.   Italy 4.   Canada THE LAW I.   ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION A.   Terminology used B.   Admissibility C.   Merits 1.   The applicant’s arguments (a)   Nature of his condition and inadequacy of options currently available in Hungary to respond to it (b)   Criminal ban on PAD (c)   Development of the Court’s case-law and alleged international trend in support of PAD (d)   The alleged lack of legislative review of the possibility of decriminalisation of PAD 2.   The Government’s arguments (a)   Alleged limitations imposed by Articles 2 and 17 of the Convention (b)   Protection of the life of vulnerable persons and related ethical dilemmas (c)   RWI and palliative care (d)   Margin of appreciation (e)   Criminal ban and its limitations 3.   Third parties’ submissions (a)   Italian Government (b)   European Centre for Law and Justice (ECLJ) (c)   Alliance Defending Freedom (ADF) International, and the Care Not Killing (CNK) Alliance (d)   Hungarian Civil Liberties Union (HCLU) (e)   Dignitas 4.   The Court’s assessment (a)   Relevant case-law (i)   Assisted suicide, including physician-assisted dying (PAD)                                  (ii)   Refusal or withdrawal of life-saving or life-sustaining interventions (b)   The Court’s assessment (i)   Scope of the examination                    (ii)   Whether the case involves the State’s negative and/or positive obligations (iii)   Compliance with Article 8 of the Convention       (α)   The respondent State’s margin of appreciation (β)   Whether a fair balance has been struck in the present case II.   ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION A.   Admissibility B.   Merits 1.   The parties’ arguments 2.   The Court’s assessment III.   OTHER ALLEGED VIOLATIONS OF THE CONVENTION OPERATIVE PROVISIONS PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE WOJTYCZEK DISSENTING OPINION OF JUDGE FELICI     In the case of Dániel Karsai v. Hungary, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Alena Poláčková, President ,   Marko Bošnjak,   Krzysztof Wojtyczek,   Gilberto Felici,   Ivana Jelić,   Erik Wennerström,   Raffaele Sabato, judges , and Liv Tigerstedt, Deputy Section Registrar , Having deliberated in private on 14 May 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the right, asserted by the applicant, who is suffering from amyotrophic lateral sclerosis, to be assisted in dying. PROCEDURE 2.     The case originated in an application (no.   32312/23) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Dániel András Karsai (“the applicant”), on 10 August 2023. 3.     The applicant was represented by Ms E. Frank and Mr P. Stánicz, lawyers practising in Budapest. The Hungarian Government (“the Government”) were represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice. 4.     The application was allocated to the First Section of the Court (Rule   52 §   1 of the Rules of Court). Given that Péter Paczolay, the judge elected in respect of Hungary, was unable to sit in the case (Rule   28), the President of the Chamber decided to appoint Marko Bošnjak to sit as an ad hoc judge (Rule   29). 5.     On 26 September 2023 notice of the application was given to the Government. On the same day the Chamber decided to grant priority to the application, in accordance with Rule 41 of the Rules of Court, and to hold a public hearing on the admissibility and merits of the case under Rule   54 §   5. 6.     The Chamber also decided, of its own motion, to hear evidence from experts (Rule A1 of the Annex to the Rules of Court), namely Prof. Régis Aubry and Prof. Judit Sándor, in camera. 7.     The President of the Chamber directed that verbatim records of both hearings were to be made, pursuant to Rule 70 of the Rules of Court and Rule   8 of the Annex to the Rules of Court, and instructed the Registrar accordingly. 8.     Both parties filed observations on the admissibility and merits. In addition, third-party comments were received from the Italian Government, the European Centre for Law and Justice (“ECLJ”), the Alliance Defending Freedom International (“ADF International”) and the Care Not Killing Alliance Ltd (“the CNK Alliance”), the Hungarian Civil Liberties Union (“HCLU”) and Dignitas (Article 36 § 2 of the Convention). 9.     On 27 November 2023 the Chamber held a fact-finding hearing and heard evidence from the experts in the presence of the parties’ representatives, in camera, in the Human Rights Building, Strasbourg. 10.     A public hearing took place in the Human Rights Building, Strasbourg, on 28 November 2023. There appeared before the Court: (a)     for the Government Mr   Z. Tallódi,   Agent , Ms   M. Weller ,   Co-Agent , Mr   C. Óváry , General Director of the   Bajcsy-Zsilinszky Hospital in Budapest, Mr   D. Oravecz ,   Advisers , Mr   Z. Turai , Ms   B. Hochmann , Deputies to the   Permanent Representative; Mr   O. Varga ,   Trainee ; (b)     for the applicant Mr   D. A. Karsai ,   Applicant , Mr   P. Stánicz , Ms   E. Frank ,   Counsel , Mr   B. Tóth , Mr   V. Kazai , Mr   T. Sepsi ,   Advisers , Ms   F. Antreter , Mr   E. Budai , Ms   D. Péter, Ms   K. Gelencsér ,   Co-advisers .   The Court heard addresses by the applicant, Mr Stánicz, Mr Tallódi and Mr Óváry, as well as their replies to questions put by judges. THE FACTS 11.     The applicant was born in 1977 and lives in Budapest. He is a prominent human rights lawyer in Hungary. 12 .     He was diagnosed with amyotrophic lateral sclerosis (ALS) in August 2022 and is currently in an advanced stage of that disease. ALS is an incurable progressive neurodegenerative disease (a form of motor neuron disease), with an invariably fatal outcome. It consists in the gradual loss of motor neuron function, and hence of the voluntary control of muscles. At the end-stage of ALS, most of the muscles responsible for volitional motion are paralysed; moreover, speech, unaided breathing and swallowing becomes very difficult and ultimately impossible. Sensory and cognitive abilities may stay largely intact, and patients generally maintain their intellectual functions and consciousness throughout the progression of the disease. No therapy offers a substantial clinical benefit for patients with ALS. The main care for patients with ALS is timely intervention to manage symptoms, including use of nasogastric feeding, the prevention of aspiration and provision of ventilatory support. Typically, death due to respiratory paralysis occurs in three to five years of diagnosis [1] . 13 .     The applicant first experienced the symptoms of ALS in July 2021. Since then, he has been losing dexterity in his hands and lower limbs. His swallowing is deteriorating, and he has experienced episodes of choking. He requires daily assistance, and has regular sessions with a physiotherapist, a speech and language therapist, and a psychiatrist. 14 .     The applicant maintains that he will soon be completely paralysed and will be unable to communicate; he will be “imprisoned in his own body without any prospect of release apart from death” and his existence will consist almost exclusively of pain and suffering. He wishes to end, or shorten to a minimum, this phase of his disease by availing himself of some form of physician-assisted dying; however, neither euthanasia nor assisted suicide are legal in Hungary. In this connection, the applicant submits, essentially, as follows: in order to maintain his physical and mental integrity, the applicant must commit suicide while he still can, if he wishes to end his life before his illness results in a condition that he considers to be unbearable. Once his illness reaches the stage where his mobility is so severely reduced that he cannot end his own life, he will have to wait until he eventually requires life-sustaining treatment which, in his case will occur only – if ever – directly before his death. RELEVANT LEGAL AND OTHER MATERIAL I.      DOMESTIC LEGAL FRAMEWORK AND STANDARDS OF ETHICAL CONDUCT A. The Criminal Code and the explanatory memorandum thereto 15 .     The relevant parts of Act C of 2012 on the Criminal Code read as follows: Section 3 “(1)     Hungarian criminal law shall apply to (a)     criminal offences committed in Hungary, ... (c)     acts committed by Hungarian nationals abroad if the act constitutes a criminal offence under Hungarian law. (2)     Hungarian criminal law shall apply to (a)     acts committed by persons other than Hungarian nationals abroad if the act: (aa)     constitutes a criminal offence under Hungarian law and is also punishable under the law of the place where it was committed, ... (b)     acts committed by persons other than Hungarian nationals abroad against a Hungarian national, or a legal person ... which are punishable under Hungarian law. (3)     In the cases specified in paragraph (2), the criminal proceedings shall be initiated by the Attorney General. ...” Homicide Section 160 “(1)     Any person who kills another human being is guilty of a felony that is punishable by imprisonment for five to fifteen years. (2)     The penalty shall be imprisonment for ten to twenty years, or life imprisonment, where the homicide was committed: (a)     deliberately with premeditation; ... (k)     against a person whose ability to defend himself or herself is diminished owing to old age or disability; ... (3)     Any person who engages in preparations to commit homicide shall be punished by imprisonment for one to five years. (4)     Any person who commits negligent homicide is guilty of a misdemeanour punishable by imprisonment for one to five years. (5)     Any person who persuades another to commit suicide shall be punished in accordance with subsection (1) if such person is under the age of fourteen years or is unable to express his or her will, and if suicide is in fact committed.” Voluntary manslaughter Section 161 “Any person who commits homicide as a result of provocation or in the heat of passion is guilty of a felony, punishable by imprisonment for two to eight years.” Aiding and abetting suicide Section 162 “(1)     A person who induces or provides assistance for another person to commit suicide is guilty of a felony and shall be punished by imprisonment for one to five years if suicide is in fact attempted or committed. (2)     Any person over the age of eighteen years who persuades another person under the age of eighteen years to commit suicide, or who provides assistance in committing suicide, shall be punished by imprisonment for two to eight years, if suicide is in fact attempted or committed.” 16 .     With regard to the extraterritorial jurisdiction of the Hungarian Criminal Code, the explanatory memorandum to the Bill on the Criminal Code explained that, as a general rule, an act committed abroad by a non ‑ Hungarian citizen continued to be punishable only in the event of double incrimination. The Bill makes three exceptions to this rule: in the case of crimes against the State; in cases of crimes against humanity, war crimes, or other crimes, prosecution of which is required by an international treaty promulgated by law; and in the case of crimes committed against a Hungarian citizen. The memorandum explained this as follows: “Among the jurisdictional provisions, the Bill prescribes the passive personality principle as a new feature, thus taking into account the trend appearing in international treaties. Based on the passive personality principle, Hungarian criminal jurisdiction also extends to acts committed by a non-Hungarian citizen abroad to the detriment of a Hungarian citizen or of a legal entity established under Hungarian law, or of another legal entity without legal personality. The condition for punishability is that the act is punishable under Hungarian law. The passive personality principle enables the criminal prosecution of non-Hungarian citizens who commit a crime abroad against a Hungarian citizen or legal person or other legal entity, where their act is not punishable under the law of the place where it was committed. So in this case, double incrimination is also not a condition for the exercise of jurisdiction. In the case of crimes committed abroad by a non-Hungarian citizen, the Bill ties the actions of the Hungarian authorities to an additional condition (a decision by the Attorney General), since the prosecution of crimes committed by a foreign citizen or stateless person abroad by the Hungarian authorities may affect Hungary’s international relations. It must therefore be subject to thorough consideration, covering all circumstances, as to whether the conditions for the efficient conduct of criminal proceedings in Hungary exist. In view of this, the Bill maintains the existing provision unchanged, to the effect that in such cases the Attorney General decides on whether to initiate criminal proceedings.” B. The Code of Criminal Procedure 17 .     Article 4 (1) of Act XC of 2017 on the Code of Criminal Procedure provides as follows: “The prosecution service or investigating authority shall initiate criminal proceedings ex officio if it becomes aware of a criminal offence that is subject to public prosecution.” C. Healthcare Act 1.    Right to self-determination and to refuse treatment in the Act on Healthcare 18 .     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)). 19 .     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)). 20 .     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)). 21 .     Sections 20, 22 and 23 of the Healthcare Act, concerning the right to refuse medical care, provide: The right to refuse healthcare Section 20 “(1)     In accordance with the provisions set out in subsections (2)-(3) and with the exception of the cases defined in subsection (6), a patient with full legal capacity shall have the right to refuse healthcare, unless this would endanger the lives or physical safety of others. (2)     Where a patient refuses the provision of any care, and if its absence would be likely to result in serious or permanent impairment of his or her health, this must be done through a public deed or in a private deed with full probative value, or, where the patient is unable to write, in the joint presence of two witnesses. In the latter case, the refusal must be recorded in the patient’s medical record and certified with the signatures of the witnesses. (3)     Life-sustaining or life-saving interventions may only be refused, thereby allowing the illness to follow its natural course, if the patient suffers from a serious illness which, according to the current state of medical science, will lead to death within a short period of time even with adequate healthcare, and is incurable. The refusal of life-sustaining or life-saving interventions must be made in keeping with the formal requirements set out in subsection (2). (4)     Refusal as defined in subsection (3) shall be valid only if a committee composed of three physicians has examined the patient and issued a unanimous written statement to the effect that the patient took his or her decision in full cognisance of its consequences; if the conditions defined in subsection (3) have been satisfied; and, furthermore, if on the third day after this statement by the medical committee the patient consistently declares his or her intention to refuse treatment in the presence of two witnesses. If the patient does not consent to an examination by the medical committee, his or her statement regarding refusal of medical treatment cannot be taken into consideration. (5)     The committee defined in subsection (4) shall be composed of: the patient’s attending physician, one board-certified doctor who specialises in the field corresponding to the nature of the illness and is not involved in treating the patient, and one board-certified psychiatrist. (6)     A female patient may not refuse a life-sustaining or life-saving intervention if she is pregnant and is considered capable of carrying the pregnancy to term. (7)     In the event of refusal as defined in subsections (2) to (3), an attempt shall be made to identify the reasons underlying the patient’s decision through personal interviews, and to alter the decision. During this process, in addition to the information defined in section 13, the patient shall be informed once again of the consequences of not carrying out the intervention. (8)     A patient may withdraw his or her statement regarding refusal at any time and without any restriction as to the form thereof.” Section 22 “(1)     A person with legal capacity may – in anticipation of his or her subsequent incapacity to act, and subject to this being formally set out in a public deed – refuse: ( a )     specific examinations [or] interventions provided for in section 20 (1); ( b )     the interventions provided for in section 20 (3); and ( c )     certain life-sustaining [or] life-saving procedures, if he or she suffers from an incurable disease and is unable to care for himself or herself physically as a result of such illness, and if his or her pain cannot be reduced even by appropriate medical treatment. (2)     In anticipation of his or her future incapacity, a person with legal capacity may, through an authentic instrument, designate a person with legal capacity to exercise his or her right under subsection (1) in his or her stead. (3)     The statement referred to in subsections (1)-(2) may be withdrawn by the patient at any time, regardless of his or her legal capacity, without formal requirements. (4)     As regards a statement indicating a refusal to accept the provision of care by a person with legal capacity as provided for in subsection (2) hereof, the committee referred to in section 20 (4) shall certify: ( a )     the conditions set out in subsection (1) are satisfied, and ( b )     the person referred to in subsection (2) made his or her decision in full awareness of the consequences thereof.” Section 23 “(1)     An intervention referred to in section   20 (3) may be terminated or not carried out only if the patient’s will to do so can be ascertained in a clear and convincing manner.   In case of doubt, the patient’s subsequent personal statement must be taken into account; in the absence thereof, consent for performing the life-sustaining or life-saving interventions must be assumed. (2)     If treatment is refused, the patient or the person referred to in section 22 (2) may not be forced to change his or her decision by any means whatsoever. If an intervention referred to in section 20 (3) is refused, the patient shall nevertheless be entitled to treatment aimed at reducing his or her suffering and alleviating pain.” 22 .     The Healthcare Act does not authorise assisted suicide or euthanasia. 2.    Palliative care 23 .     The relevant parts of the Healthcare Act read as follows: End-of-life care of terminal patients Section 99 “(1)     The objective of end-of-life care for terminal patients (hereinafter: hospice care) shall be to provide physical and psychological nursing and care for a patient with a lengthy terminal illness, to improve his or her quality of life, to alleviate suffering, and to preserve the patient’s human dignity all the way through until the end of life. (2)     To achieve the objective set out under subsection (1), the patient shall be entitled to palliative care to mitigate pain, alleviate physical symptoms and emotional suffering, and to have family members and other significant persons at his or her side. (3)     Whenever possible, hospice care shall be provided in the patient’s home, with the patient surrounded by his or her family. (4)     Hospice care shall include assisting the terminally ill patient’s family members in nursing the patient and providing emotional support to them throughout the duration of the illness and during the period of bereavement and mourning.” 24 .     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 fifty days, this provision of care can be extended twice, with the maximum period of care being capped at 150 days. D. The Code of Ethics of the Hungarian Medical Chamber 25 .     The relevant part of the Code of Ethics of the Hungarian Medical Chamber states: “(16)     A breach of the legal provisions related to situations requiring special treatment   – especially first aid, the treatment of terminally ill patients, organ and tissue transplantation, abortion and assisted reproduction procedures – is also considered an ethical offence. •     Euthanasia is [defined as] a deliberate action by a doctor when carrying out his or her profession, aimed at the premature death of an incurable, suffering patient, at the latter’s request. •     Euthanasia moves the time of death to an earlier time than the natural end. Doctors take an oath and are authorised to heal and to alleviate the suffering of the patient, and not to take another person’s life. (17)     Any action for the purpose of ending a person’s life is incompatible both with the medical profession and with medical ethics, and is also a flagrantly serious ethical offence. •     The provision of palliative terminal medicine is justified for the care of terminally ill patients. Its essence is to reduce the physical and mental suffering of terminally ill patients who, in the current state of science, are incurable. •     Terminal palliative medicine is not the same as euthanasia. After careful consideration, the doctor recommends not to use therapy that is deemed to be ineffective and [instead] uses treatment that provides the necessary care, comfort, symptomatic treatment and spiritual support. Terminal palliative medicine can only be used with consent of the patient or his or her legal representative, given, if possible, in a written form. •     It is not considered to be euthanasia where the patient refuses life-sustaining treatment after receiving sufficient information – and under the conditions laid down in the legislation – because death thus occurs as a result of the natural course of the disease. •     It is not considered euthanasia if we administer the smallest effective dose of a drug to a suffering patient who has reached the end stage of the disease; and if the suffering increases, we gradually increase the dose, even to an extent that will probably bring the time of death closer, because our duty is to alleviate suffering and the intention is not to cause the patient’s death.” II.    RELEVANT DOMESTIC LEGAL PRACTICE 26 .     Between 1993 and 2001 the Hungarian Constitutional Court received several petitions concerning the right of patients with terminal illnesses to end their lives with dignity. On 28 April 2003 the Constitutional Court adopted a joint decision on all of them. 27 .     One of the main claims put forward by the petitioners was that the Healthcare Act restricted, in an unconstitutional manner, the right of terminally ill patients to self-determination, by not allowing them to end their lives with the aid of a physician. In their view, the right to life and human dignity enshrined in Article   54 (1) of the Constitution of 1949 entailed the right to end one’s life with dignity. For the same reason, the petitioners also submitted that the legislature had acted unconstitutionally, by omission, in failing to harmonise Articles 166 to 168 of Act IV of 1978 on the Criminal Code (providing for the criminal offences of homicide and assistance in suicide) with Article 54 (1) of the Constitution of 1949. The petitioners complained, inter alia , that any medical aid in dying provided to a terminally ill person was punishable by law, although such acts ought to be deemed lawful on the basis of the patient’s constitutional right, and that “mercy killing” was not properly distinguished from homicide. Furthermore, in the petitioners’ view, although the Healthcare Act allowed terminally ill patients to refuse the medical care necessary for sustaining their lives, even this possibility was not granted widely enough and the rules regarding such a refusal unjustifiably restricted the right to self-determination of terminally ill patients. 28 .     The Constitutional Court began by reviewing the developments in the applicable domestic criminal and healthcare legislation. As regards criminal law, it noted that “since Act V of 1878, the criminal-law statutes in force in Hungary have been consistent in that they punish homicide, even if perpetrated by a physician at the request or in the interest of a terminally ill patient”; as regards healthcare, it took note of the changes brought about the new Healthcare Act, in particular the strengthening of patients’ rights in the course of medical care, by entitling them to decide whether they wish to receive medical care, and also to consent to or refuse interventions. It further analysed the international context and found that at the material time, only the Dutch, Belgian and Oregon legislation offered the option of active euthanasia. The Constitutional Court also reviewed the positions of various Council of Europe bodies as set out, amongst other sources, in Pretty v. the United Kingdom (no. 2346/02, ECHR 2002-III), in Parliamentary Assembly Recommendation 1418 (1999) on the protection of the human rights and dignity of the terminally ill and the dying, and in the Convention on Human Rights and Biomedicine (see paragraphs   35-37 below). 29 .     The Constitutional Court found it appropriate to examine the questions raised in the petitions from the perspective of the right to life and the right to self-determination as an aspect of the right to human dignity, and held as follows: “6.1.     The decision by a terminally ill patient not to live until the natural end of a life that is characterised by suffering is part of patient’s right to self-determination and, as such, it falls within the scope of Article 54 (1) of the Constitution. The right to decide upon one’s own death is to be enjoyed by all persons, irrespective of whether they are healthy or ill – whether terminally, as the art of medicine currently stands, or not. This is one of the reasons why modern systems of law, including that of Hungary, only prohibit assistance in suicide but not suicide itself, in contrast to former times, when suicide was penalised in many places: those who committed suicide had various sanctions imposed on them after death (for example, they were buried outside the cemetery, their property was confiscated, and so on). A legal system based on ideologically neutral constitutional foundations cannot reflect either support or condemnation for an individual’s decision to end his or her life; this is a sphere where, as a general rule, the State has to refrain from interference. The role to be played by the State in this respect is limited to those absolutely necessary measures which result from its obligation to ensure institutional protection concerning the right to life. 6.2.     In the view of the Constitutional Court, two conclusions follow from the above. Firstly, the decision by a terminally ill patient not to live until his or her natural death in order to shorten suffering and pain, or for any other reason, and the related refusal to grant consent to a medical intervention that is absolutely necessary to keep him alive, are part of his or her right to self-determination, the exercise of which may be restricted   – but not prevented – by an Act of Parliament to the degree necessary for the protection of another fundamental right. ... Secondly, the wish of a terminally ill patient to have his or her life ended not merely by refusing a life-sustaining or life-saving medical intervention, but through the active aid of a physician, cannot be considered, from a consti