CEDH · CASELAW;COMMUNICATEDCASES;ENG — 26 septembre 2023

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA7F61D3B { margin-top:30pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sE7C30868 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } Published on 26 September 2023   FIRST SECTION Application no. 32312/23 Dániel András KARSAI against Hungary lodged on 10 August 2023 communicated on 26 September 2023 STATEMENT OF FACTS 1.     The applicant, Mr Dániel András Karsai, is a Hungarian national, who was born in 1977 and lives in Budapest. He is represented before the Court by Ms E. Frank and Mr P. Stánicz, lawyers practising in Budapest. The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     The applicant is a 46-year-old man, a lawyer by profession, who is in an advanced stage of amyotrophic lateral sclerosis (ALS), which is an uncurable progressive neurodegenerative disease (a type of motor neuron disease), with invariably fatal outcome, consisting in the gradual loss of motor neuron function, and hence of the voluntary control of muscles. At the end-stage of ALS, most 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 the patients may maintain their intellectual functions and consciousness throughout the progression of the disease. 4.     The applicant first experienced the symptoms of ALS in July 2021 and currently cannot walk and take care of himself without assistance. He maintains that within a year from now he will be completely paralysed and will not be able 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 would want to end or minimally shortened this phase of his disease by availing himself of some form of assisted dying; however, neither euthanasia nor assisted suicide are legal in Hungary. The applicant submits in this connection as follows: “Thus, in order to keep his physical and mental integrity, the applicant has to commit suicide while he can if he wishes to end his life before his illness results in a state, he considers unbearable. Once his illness reaches the stage where his mobility is so severely reduced that he cannot end his own life, he has to wait until he will eventually require life-sustaining treatment which, in his case comes only – if ever – directly before his death.” Moreover, he argues that the lack of any prospect of ending his life on his own terms has a detrimental effect on his mental state and his ability to cope with the challenges of the disease. The case, in his words, is about dignity. 5.     Lastly, the applicant submits that dying with dignity is a manifestation of his religious and secular beliefs. In his view, the end-of-life decisions are among the most symbolical expressions of one’s beliefs and should be respected in pluralistic society. Relevant domestic law 6.     Section 3 of the Act C of 2012 on the Criminal Code provides: “(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 the Hungarian law. (3) In the cases specified in paragraph (2), the criminal proceedings shall be launched by the Attorney General.” 7.     Section 162 of Act C of 2012 on the Criminal Code reads as follows:   “(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 the suicide is attempted or committed. ...” COMPLAINTS 8.     The applicant invokes Articles 3, 8 and 9 alone and in conjunction with Article 14 of the Convention. He complains, relying on Articles 3, 8 and 9 of the Convention, about a “complete and extraterritorial ban” on making a decision to end life with assistance and draws attention to the fact that under Hungarian law it remains a criminal offence for a third party to assist another to commit suicide. He submits that the relevant provision of the Criminal Code would apply even if he died of assisted suicide or euthanasia outside Hungary. Thus, anyone assisting him in ending his life outside Hungary could face criminal charges in Hungary. 9.     He further alleges that the respondent State is under an obligation, deriving from Articles 3, 8 and/or 9 of the Convention, to provide a possibility for him to end his life on his own terms with dignity. Relying on the said provisions in conjunction with Article 14 of the Convention, the applicant argues that the choice to self-determinedly die is open to those who by nature of their disease can terminate or shorten their life by declining life-prolonging treatment, but not to those who – like the applicant – do not require such treatment. The two categories of terminally ill patients are, in the applicant’s view, in sufficiently analogous situation. In his opinion, he is a victim of discrimination on the ground of “other status” because the aforementioned difference in treatment has no objective and reasonable justification. 10.     The applicant acknowledges that strong safeguards should accompany end-of-life decisions and that there might be a considerable margin of appreciation left to the Member State in this respect. However, he believes that the lack of any possibility for him to decide to end his life on his terms is – in the light of the above considerations and considering the medical advances – disproportionate. QUESTIONS TO THE PARTIES 1.     Given that the Hungarian criminal law provides for a criminal offence of assisting or participating in suicide in all cases – including, as in the present case, assistance to persons who are fully mentally capable but affected with an incurable degenerative condition and wish to end their life – is the domestic legal framework and its operation in practice compatible with Articles 3, 8 and/or 9 of the Convention, regard also being had to developments in medicine? 2.     Has the respondent State, by not adopting measures which could facilitate the applicant to end his life in a dignified manner if or when he wishes, in view of his particular medical condition, complied with Articles 3, 8 and/or 9 of the Convention? 3.     Considering the difference in end-of-life options available under Hungarian law to terminally ill people depending on whether or not their survival requires a life-sustaining treatment, has there been a violation of Articles 3, 8 and/or 9 in conjunction with Article 14 of the Convention?