CEDH · CASELAW;CLIN;ENG — 13 juin 2024

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Hungary - 32312/23 Judgment 13.6.2024 [Section I] Article 8 Positive obligations Article 8-1 Respect for private life Impossibility for a terminally ill patient, suffering from an uncurable progressive neurodegenerative disease, to be assisted in dying, by virtue of a blanket and extraterritorial ban: no violation Article 14 Discrimination Alleged discrimination between patients dependent on life-sustaining treatment and those patients who were not, and consequently could not hasten their death by refusing such treatment: no violation Facts – The applicant, a 47-year-old lawyer, is at an advanced stage of amyotrophic lateral sclerosis (“ALS”), an uncurable progressive neurodegenerative disease, with an invariably fatal outcome. At the end-stage of ALS, most of the muscles responsible for volitional motion are paralysed; moreover, speech, unaided breathing and swallowing become 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. Typically, death due to respiratory paralysis occurs in three to five years. The applicant first experienced the symptoms of ALS in July 2021. Following the deterioration of his condition, he now requires daily assistance. He 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 before his illness results in a condition that he considers to be unbearable and in order to maintain his physical and mental integrity; however, medically assisted suicide and voluntary euthanasia (physician‑assisted dying – “PAD”), are illegal in Hungary. Once his illness reaches the stage where his mobility is so severely reduced that he cannot end his own life, the applicant will have to wait until he eventually requires life‑sustaining treatment which, in his case will occur only – if ever – directly before his death. Law – Article   8: The Court heard expert evidence from two experts, Professor Régis Aubry from the Besançon Regional University Hospital and Professor Judit Sándor from the Central European University in Vienna. (1) Applicability – The applicant’s interest in having access to PAD related to core aspects of his right to respect for his private life enshrined in Article   8. In particular, it concerned respect for his autonomy, physical and mental integrity and for human dignity, which was the very essence of the Convention. Furthermore, having regard to the approach in Pretty v.   the United Kindgom, the Court saw no reason to dismiss the applicant’s complaint on the ground raised by the Government that the impugned criminal law provisions applied to those who would seek to assist him in suicide, rather than to him directly. The applicant’s complaint thus fell to be examined as concerning an aspect of his right to respect for his private life within the meaning of Article   8. Conclusion : Article   8 applicable. (2) Merits – (a) Scope of the examination – The applicant’s complaint about being prevented from ending his life with the assistance of others and thereby exercising his   right to self‑determination had to be examined in light of the following elements: firstly, instead of being condemned to a life of intolerable suffering until his natural death, the applicant wished to be able to bring his life to a peaceful end at a time and in a manner of his own choosing; secondly, while he had not been very clear about the type of assistance that he would wish to have available to him, his submissions referred essentially to PAD; thirdly, his cognitive abilities would most probably remain intact as his disease advanced (possibly up to his death) and thus it was likely that he would continue to be fully capable of making his own decision about his life, although communicating any such decision might present a challenge at some point. In addition, his complaint related both to his inability to have recourse to PAD in Hungary and to have recourse to PAD abroad. Lastly, although the applicant had complained about the lack of availability of PAD, which encompassed both euthanasia and medically assisted suicide, his complaint regarding the criminal prohibition essentially referred to the criminal offence of assisted suicide. (b) Whether the case involves the State’s negative and/or positive obligations – The fact that anyone in Hungary who would assist the applicant in committing suicide could be prosecuted was effectively equivalent to denying him the possibility to end his life on his own terms, at home or abroad, thereby interfering with his right to respect for his private life. Furthermore, in view of his arguments and the fact that PAD would necessarily involve a positive provision of access to medical intervention, such as access to life-ending drugs, his complaint went beyond mere non-interference, engaging negative and positive obligations, which were intertwined. (c) Compliance with Article   8 – The criminal ban on assisted suicide complied with the requirement of lawfulness and pursued the legitimate aims of, inter alia , protecting the lives of vulnerable individuals at risk of abuse, maintaining the medical profession’s ethical integrity and protecting the morals of society with regard to the meaning and value of human life. The central question was thus whether a fair balance had been struck by the Hungarian authorities between the applicant’s interest in being able to end his life by means of PAD and the legitimate aims pursued by the legislation in question, regard being had also to the State’s positive obligations and margin of appreciation in this domain. In that connection, the Court emphasised that it had not been asked to determine whether a different policy – such as one providing for PAD – might have been acceptable. (i) The respondent State’s margin of appreciation – There was an emerging trend towards decriminalisation of medically assisted suicide, especially as regards patients who were suffering from incurable conditions. Nonetheless and though access to PAD had recently been or was being deliberated in the parliaments of certain member States, the majority of member States continued to prohibit and prosecute assistance in suicide, including PAD. Moreover, the relevant international instruments and reports, including the Council of Europe’s Oviedo Convention , provided no basis for concluding that the member States were thereby advised, let alone required, to provide access to PAD. Furthermore, this subject continued to be one that raised extremely sensitive moral and ethical questions and was one on which opinions in democratic countries often profoundly differed. The choice of the appropriate means to protect the right to life, and other relevant values affected by this issue, needed to be made in full appreciation of the local conditions and institutions in a given society. That was even more so where a positive provision of PAD was at issue. Accordingly, the Court found that the States had to be granted a considerable margin of appreciation. The Court also noted that it had already found that Article   2 did not prevent the national authorities from allowing or providing PAD, subject to the condition that the latter was accompanied by appropriate and sufficient safeguards to prevent abuse and thus secure respect for the right to life. It was in the first place for the national authorities to assess whether PAD could be provided within their jurisdiction in compliance with that requirement. (ii) Whether a fair balance had been struck in the present case – (α) The Government’s arguments relating to PAD’s alleged link to “ableism” – The Court dismissed these arguments. Criteria such as incurable or terminal illness, which often featured in national laws on PAD, should in no way be seen as attaching any less weight to the value of the lives of those patients who met them. Instead, those criteria could be viewed as reflecting the delicate balance to be struck between respect for human dignity and the right to self-determination on the part of patients with full mental capacity who wished to die, and the risks involved in allowing PAD beyond a narrowly defined scope. (β) Social implications and risks of abuse – PAD legalisation had important social implications which could only be properly appraised by the national authorities. Those implications as well as the risks of abuse and error entailed in the provision of PAD weighed heavily in the balance when assessing if and how to accommodate the interests of those who wished to be assisted in dying. Any system of PAD – even one limited to terminally ill patients with refractory symptoms – would require the development of a robust regulatory framework, capable of being effectively and safely applied in practice, and willingness to cooperate on the part of the medical profession. Both experts heard by the Court had referred to the challenges in ensuring that a patient’s decision to use PAD was genuine, free from any external influence and was not underpinned by concerns which should be effectively addressed by other means. Moreover, the process of communication with the patient had to be capable of accommodating the real possibility that the patient would change his or her view on PAD as the disease progresses. In any case, the Court understood from the expert evidence that effective communication with the patient required special skills, time and significant commitment on the part of medical and other professionals, as did the provision of adequate palliative care, which both experts had considered to be a necessary precondition for considering recourse to PAD. The assessment and allocation of such resources was, in principle, a matter which fell within the domestic authorities’ margin of appreciation. (γ) Alleged lack of alternative means to address the applicant’s situation – High-quality palliative care, including access to effective pain management, was in many situations – as that of the applicant – essential to ensuring a dignified end of life. The available options in palliative care, guided by the European Association of Palliative Care’s Revised Recommendations, including the use of palliative sedation, were generally able to provide relief to patients in the applicant’s situation. The applicant had not argued that the palliative care available to him was inadequate or that he would not be able to receive, as part of the palliative services available in Hungary, palliative sedation to relieve refractory suffering. Equally, he had not disputed that he would be able to hasten his own death by refusing to consent to assistance in breathing, or by requesting the withdrawal of such assistance when it became necessary. Nor had he alleged that he would not receive adequate comfort care during the terminal phase when unaided breathing entails discomfort and distress; the Government had affirmed that that option would be open to the applicant. The applicant had instead argued that he would refuse such a course of action, since, by being medically sedated, he would lose what is left of his autonomy. While that was a legitimate personal choice of an undoubtedly crucial nature, a personal preference to forego otherwise appropriate and available procedures could not in itself require the authorities to provide alternative solutions, let alone to legalise PAD. To hold otherwise would effectively mean that Article   8 could be interpreted as encompassing PAD as a right that was enforceable under the Convention, regardless of the available alternatives. Furthermore, the applicant had alleged that the possibility of refusing life-sustaining or life‑saving interventions or requesting their withdrawal would in any case become available to him when it was too late – by that point he would have been exposed to unbearable “existential suffering” while remaining fully conscious. The Court noted that the existential suffering to which the applicant referred was not uncommon in patients with ALS; that it might be refractory to medical treatment; and that the use of sedation to alleviate it might be contested or unwarranted in certain situations. However, although it amounted to genuine and severe anguish, existential suffering related essentially to a personal experience, which might be susceptible to change and did not lend itself to a straightforward objective assessment. It was not for the Court to determine the acceptable level of risk involved in PAD in such circumstances. It could not thus accept that argument as one which militated for an obligation under Article   8 to legalise PAD. Nevertheless, that heightened state of vulnerability warranted a fundamentally humane approach by the authorities to the management of those situations, which necessarily had to include palliative care that was guided by compassion and high medical standards. As the applicant had not alleged that such care would be unavailable to him, the domestic authorities could not be regarded as falling foul of any positive obligation that might arise from Article   8 in that regard. (δ) Criminal prohibition on PAD and lack of flexibility as regards the prosecution of such offences – The applicant’s complaint that he was prevented from having recourse to PAD in Hungary because of the criminal-law prohibition on its use could not be examined separately from the question of the positive provision of PAD as the introduction of an exception to the impugned prohibition would inevitably require positive measures and regulation of PAD by the State. However, the applicant’s complaint that that prohibition prevented him from seeking PAD abroad concerned an essentially negative obligation, that is, the obligation to refrain from interfering with his Article   8 rights. In that connection the Court noted that PAD continued to be not only legally unavailable but also punishable under criminal law in the majority of the Council of Europe’s member States. It found that the criminal prohibition on assisted suicide was intended to deter life‑endangering acts and to protect interests arising from considerations of a moral and ethical nature. As the comparative-law research covering forty‑two Council of Europe member States confirmed, there was nothing unusual or excessive in the fact that the State’s prohibition applied also when the act of suicide was ultimately carried out abroad, especially if the victim of the crime and/or the perpetrator were nationals of that State. Ensuring that the applicant’s wish to use PAD abroad was not penalised in Hungary would in effect require the respondent State to create an exception in the operation of its criminal law. Moreover, although PAD could be carried out in compliance with Article   2 in jurisdictions which provided appropriate safeguards, issues related to the coherency of the domestic criminal-law system and the collective moral and ethical considerations underpinning the prohibition of assistance in suicide, which had been raised by the Hungarian Government in the present case, provided reasonable grounds for the Hungarian authorities’ reluctance to introduce the type of exception sought by the applicant. Lastly, while the prosecution of offences of assisted suicide seemed to be required by law, the Government had asserted that the motivation of the perpetrator, the victim’s circumstances and the danger posed by the offence could be taken into account as mitigating factors, and that, where justified, the sentence imposed could be lower than the statutory minimum. Consequently, and taking into account the State’s considerable margin of appreciation, the Court did not consider that the criminal ban on assisted suicide, including its application to any person assisting the applicant to have recourse to PAD abroad, had been disproportionate. (ε) Allegedly insufficient review of the impugned measure by the domestic authorities – The absolute ban in Hungary on assistance in suicide, with the exception of a Constitutional Court’s decision in 2003, had not been reviewed by the authorities in any substantial way since its introduction in 1878. However, the Court did not attach decisive weight to that element, in view of the fact that the majority of the Council of Europe’s member States continued to prohibit PAD. Furthermore, the Court noted that the Constitutional Court would have an opportunity to reassess that issue if it was approached by an affected petitioner who sought to achieve the decriminalisation of PAD. (ζ) Conclusion – The Court held that the Hungarian authorities had not overstepped their margin of appreciation. It noted however that the need for appropriate legal measures had to be kept under review, having regard to the developments in European societies and in the international standards on medical ethics in this sensitive domain. Conclusion : no violation (six votes to one). Article   14 in conjunction with Article   8: The applicant had complained that he had been subjected to discrimination because the domestic law did not provide him with an option to hasten his death, although it did provide such an option to terminally ill patients who were dependent on life-sustaining treatment. The Court noted that the right to refuse or request discontinuation of unwanted medical treatment was inherently connected to the right to free and informed consent to medical intervention, which was widely recognised and endorsed by the medical profession, and was also laid down in the Oviedo Convention . The refusal or withdrawal of treatment in end-of-life situations was the subject of particular consideration or regulation because of the need to safeguard, inter alia , the right to life; however, such refusal or withdrawal was intrinsically linked to the right to free and informed consent, rather than to a right to be assisted in dying. The Court held that similar cogent reasons to those for its findings under Article   8 also existed under Article   14 for justifying the allegedly different treatment of the above‑mentioned two groups of patients. In contrast to the situation regarding PAD, the majority of the member States allowed a patient to refuse life-sustaining or life‑saving interventions or request their withdrawal. Furthermore, the right to refuse or withdraw consent to interventions in the health field was recognised in the Oviedo Convention . Accordingly, the alleged difference in treatment of the two groups of terminally ill patients was objectively and reasonably justified. Conclusion : no violation (six votes to one). (See also Pretty v.   the United Kingdom , 2346/02, 29   April 2002, Legal Summary ; Haas v.   Switzerland , 31322/07, 20   January 2011, Legal Summary ; Koch v.   Germany , 497/09, 19   July 2012, Legal Summary ; Lambert and Others v.   France [GC], 46043/14, 5   June 2015, Legal Summary ; Lings v.   Denmark , 15136/20, 12   April 2022, Legal Summary ; Mortier v.   Belgium , 78017/17, 4   October 2022, Legal Summary ; Council of Europe Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (CETS 164, the Oviedo Convention) of 4   April 1997 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .