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German Federal Constitutional Court extends the catalogue of human rights

When you say euthanasia, most people in Europe think of Switzerland and Benelux. Since February, Germany has also been one step closer to euthanasia; the German Constitutional Court held the existence of the right to death and repealed a provision penalizing paid participation in suicide.

The concept of euthanasia raises contradictory reactions. It takes various forms, not just the act of putting a person to death at their request. A specific form of euthanasia, known as passive euthanasia, is respected also in the Czech Republic: a person’s choice to refuse treatment and die as a result or, more precisely, the physician's duty to refrain from providing treatment and let the person die. We are, nevertheless, reluctant to call such death euthanasia. In most countries, euthanasia is still generally held in contempt, although the idea of a man‘s crucial freedom to choose when and how they are going to die is slowly spreading in the society. The idea that someone may favour death over suffering, and that helping them to carry out their will is not a crime, is resonating. In February, the German Federal Constitutional Court took another step toward respecting an individual's free will and expanded the understanding of legal euthanasia in Germany.

Even before 26 February 2020, the Germany's approach to voluntarily leaving this world was more open than that of the Czech Republic. In Germany, participation in suicide has not been qualified as a criminal offence, if the suicide facilitator acts selflessly. In other words, Germany has admitted assisted suicide; until 26 February 2020, however, assisted suicide could not be provided commercially, i.e. for consideration. This was prohibited by Section 217 of the German Criminal Code.

On 26 February 2020, the Federal Constitutional Court issued a ground-breaking ruling, file no. 2 BvR 2347/15; 2 BvR 651/16; 2 BvR 1261/16; 2 BvR 1593/16; 2 BvR 2354/16; 2 BvR 2527/16, stating, among other things, the following: "the universal right to privacy includes the right to self-determined death as an expression of personal autonomy". According to the Federal Constitutional Court, society and the state are obliged to respect a person's decision to end their life. The freedom to end one's life then includes the freedom to seek help from others for such act, as well as the freedom to accept the help offered.

Using arguments concerning the right to self-determination and human freedom, the Federal Constitutional Court concluded that Section 217(1), imposing punishment for commercial participation in suicide in the form of imprisonment for up to three years or a fine, contradicted fundamental human rights and deemed Section 217 of the Criminal Code null and void.

Thus, while not allowing for active euthanasia in the form of putting a person to death at their request by an act free from punishment, Germany has allowed assisted suicide in its entirety, including the one carried out for consideration.

The Federal Constitutional Court derived the right to death and the right to determine the manner of one’s own death from the fundamental human rights, which obviously also apply here, in the Czech Republic. We too recognize the right to self-determination and, as stated in the very introduction to the Charter of Fundamental Rights and Freedoms, we are free and equal in dignity and in rights. Yet, the Czech legislator has still not accepted the right to death and the judiciary is reluctant to infer the same. Thus, in the Czech Republic we have the right to life, but we do not have the right to death.

The decision-making practice of the Czech Constitutional Court is, however, often observed to be inspired by the German Constitutional Court’s practice. It is therefore possible, and maybe also desirable from the perspective of promoting freedom and autonomy of will, that the Czech Constitutional Court take inspiration from Germany on this issue as well.

 

Source:
The Constitutional Court judgment file no. 2 BvR 2347/16, 2 BvR 651/16, 2 BvR 1261/16, 2 BvR 1593/16, 2 BvR 2354/16, 2 BvR 2527/16, of 26/02/2020