Sarthak Gupta
On June 13th, 2024, the European Court of Human Rights (ECtHR) in the case of Daniel Karsai v. Hungary, held that there is no right to self-determined death (physician-assisted death) under the European Convention of Human Rights (Convention). Karsai, the applicant, is suffering from advanced Amyotrophic Lateral Sclerosis (ALS), a motor neurone disease that causes loss of muscle control affecting movement, speech, and breathing, and for which there is no cure. Karsai filed an application before the ECtHR seeking the protection of the right to assisted death.
In this blog, I delve into and critique ECtHR’s rationale in Karsai’s case and argue that the ECtHR should take a holistic interpretation of the Convention.
ECtHR rationale in Karsai’s case
The ECtHR in Karsai held that Hungary’s blanket ban on assisted suicide, including its extraterritorial application, did not violate Article 8 (right to respect for private life) of the Convention. The Court acknowledged the growing trend toward decriminalization of medically assisted suicide in some European countries but noted that the majority of member states still prohibit it. The ECtHR granted Hungary considerable discretion in regulating physician-assisted dying (PAD), recognizing the sensitive moral, ethical, and policy issues involved. It also emphasized the importance of high-quality palliative care and the risks associated with PAD. It found that Hungary’s criminal prohibition on assisted suicide, aimed at deterring life-endangering acts and protecting moral and ethical interests, was not disproportionate.
ECtHR approach
The ECtHR has developed a rich jurisprudence addressing end-of-life issues, including euthanasia and assisted suicide. The Court’s decisions generally fall into three categories: cases involving non-exemptions for assisting suicide (Sanles Sanles v. Spain, Mortier v. Belgium, and Pretty v. UK), those concerning lack of state assistance in life termination (Haas v. Switzerland and Koch v. Germany), and decisions on allowing cessation of artificial nutrition and hydration (Ada Rossi v. Italy and Lambert v. France). While recognizing that end-of-life decisions fall within the scope of the right to private life, the ECtHR has consistently held that article 2 of the Convention, which protects the right to life, cannot be interpreted as conferring a right to die. This approach, however, fails to account for the nuanced and evolving nature of the right to life itself. As contemporary discourse increasingly acknowledges, the right to life encompasses not merely existence, but also considerations of the quality of life. This expanded conception suggests that a more holistic interpretation of article 2 could potentially accommodate the right to a dignified death as an integral component of the right to life.
The ECtHR’s interpretation of article 2 as primarily imposing an obligation on states to protect life (Mortier, §119) may be viewed as an oversimplification of the complex issues surrounding end-of-life choices. While the Court has acknowledged that article 2 does not per se prohibit the conditional decriminalization of euthanasia (Mortier, §§138-139), it has stopped short of recognizing a positive right to self-determined death. A more progressive interpretation of the Convention could argue for the recognition of a limited right to a self-determined death under article 8 (right to respect for private life) and article 3 (prohibition of inhuman/degrading treatment) of the Convention. This argument would be predicated on the evolving understanding of human dignity and personal autonomy, concepts that the Court has increasingly emphasized in its jurisprudence (here, here, here, here, and here).
Furthermore, the Court’s approach fails to fully recognize the potential for article 8 to encompass a right to self-determined death. While the Court has acknowledged that an individual’s choice to avoid what they consider an undignified end to their life falls within the scope of article 8 (Pretty, §67), it has not taken the logical next step of recognizing this as a protected right. The Court’s focus on the existence of safeguards in cases of decriminalized euthanasia (Mortier, §141) is commendable. However, this approach could be extended to recognize a limited right to PAD under the Convention, with appropriate safeguards in place to prevent abuse. Such an approach would better balance the state’s obligation to protect life with individuals’ rights to personal autonomy and dignity.
Moreover, the Court’s approach appears to create an artificial differential treatment between passive euthanasia (widely accepted) and active euthanasia or PAD (generally prohibited) which raises potential issues under article 14 (prohibition of discrimination) in conjunction with article 8. The Court’s jurisprudence has not adequately addressed this discrepancy which lacks a clear objective and reasonable justification (Konstantin Markin, §150).
In Karsai’s judgment, while the ECtHR didn’t depart from its established jurisprudence, it introduces nuanced considerations. The Court recognized a growing trend toward decriminalization of medically assisted suicide, especially concerning patients with incurable diseases (Karsai, §143). However, the Court’s reliance on the margin of appreciation doctrine in this sphere (Lambert, §§147-148) may be critiqued as an abdication of its responsibility to provide uniform protection of human rights across Council of Europe member states. An increasing number of European countries, including Belgium, Luxembourg, the Netherlands, Spain, and Portugal, have legalized forms of PAD, while others like Germany, Italy, and Switzerland have decriminalized certain aspects of assisted suicide. This trend extends beyond Europe, as evidenced by Canada’s recognition of PAD rights. While the Court acknowledges the lack of European consensus on this issue, it could be argued that fundamental rights should not be subject to majoritarian preferences, particularly when they concern deeply personal decisions about one’s own life and death.
The ECtHR’s cautious approach with respect to PAD is nothing but two decades-old reasoning, thus, there is a compelling argument for a more nuanced interpretation of the Convention, which recognizes a limited right to a self-determined death, rooted in the principles of privacy, human dignity, and personal autonomy, while still allowing for appropriate safeguards to protect vulnerable individuals. As the Court in Karsai noted, “the need for appropriate legal measures should therefore be kept under review” (§67). This statement opens the door for future reconsideration of the Court’s stance, potentially leading to a more comprehensive and rights-based approach to end-of-life issues under the Convention as a ‘living and transformative instrument’.
Sarthak Gupta, BA, LLB (Hons,) is a judicial law clerk and research associate at the Supreme Court of India. He is also a Helton Fellow at the American Society of International Law.