RightsNI is delighted to welcome this guest post from Dónal Kearney. Dónal Kearney is currently undertaking an LLM in International Human Rights Law at the Irish Centre for Human Rights. He holds a Law degree from the University of Cambridge and has previously volunteered for the Legal Support Project at the Law Centre (NI), the Committee on the Administration of Justice, and Ayni Ruway (Bolivia).
Here to help? The case for assisted suicide under article 8 of the European Convention of Human Rights
Edited from a 139-page document submitted to the Irish Centre for Human Rights, authored by: Bukauskaite, J., Kearney, D., Knaak, B., O’Shea, J., Lyons, T., Pötke, R. (January 2013)
On 10th January 2013, the Irish High Court decided in Fleming v Ireland IEHC 2 that Marie Fleming, a Multiple Sclerosis sufferer, did not have the ‘right to die’. The Irish Supreme Court will hear Ms. Fleming’s appeal on 19th February.
Arguments for assisted suicide emphasise how an applicant’s quality of life is limited through fears of suffering and of helplessness. According to her husband – Tom Curran – Ms. Fleming has not yet taken her life only because he alleviated her fears by promising years ago to do whatever is necessary when the time came to help her achieve her wish; even if it were to entail fourteen years’ imprisonment.
The case of R(AM) v DPP  (known as Martin’s case) was heard alongside Tony Nicklinson’s case in the English High Court, whose reasoning resembled that in Fleming. Like Nicklinson, Martin suffers from Locked-in Syndrome and was granted leave to appeal the August 2012 decision as the Court rejected the claim that the Director of Public Prosecutions was obliged by law to publish further clarification on his policy on assisted dying (after Purdy). The Court also rejected Martin’s claim that s. 2 of the Suicide Act 1961 – which prohibits all forms of assisted dying – was incompatible with European Convention article 8 right to respect for his private life. In Fleming, the DPP refused to issue guidelines altogether.
Summary of arguments under Article 8 ECHR
The European Court of Human Rights (ECtHR) specifically stated in Haas v. Switzerland  (para. 54) that the European Convention on Human Rights (ECHR) should be read as a whole. It is argued that the right to life under art. 2 ECHR should not block Martin from effective realisation of his Convention rights under art. 8 as he retains full legal capacity, has made his decision freely and in complete knowledge of all available facts and as such cannot be considered vulnerable.
The denial of both Ms. Fleming’s and Martin’s art. 8 rights is neither proportionate to a legitimate aim, nor necessary in a democratic society, as required by European jurisprudence. The blanket ban on assisted dying under sections 2 of both the Suicide Act 1961 (English) and the Criminal Law (Suicide) Act 1993 (Irish) is in violation of Article 8 ECHR, as this ban:
– violates human dignity by forcing the applicants to persist in a state of extreme suffering and deprivation, while barring them from accessing the necessary assistance to bring about the peaceful and dignified death they each desire;
– deprives them of personal autonomy, even though their mental faculties (and therefore legal capacity) remain unimpaired;
– is not necessary in a democratic society and disproportionate to the legitimate aim of protecting vulnerable persons;
– is a manifestation of the State’s refusal to implement its positive obligations in relation to the applicants’ right to private life under art. 8 ECHR;
– has previously been upheld by the Court only because the margin of appreciation granted was unduly wide.
Necessary in a democratic society
It has been firmly established that, as well as a negative obligation of non-interference, a positive obligation rests with the State to respect, protect and fulfill article 8. In Pretty v. UK , which concerned assisted dying, the court noted at para. 65: “it is under Article 8 that notions of the quality of life take on significance.” In Haas v. Switzerland , the ECtHR reiterated its judgment in Pretty that
“an individual’s right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of Article 8 of the Convention.” [para. 51]
Although the right to respect for private life is not absolute, states cannot restrict the exercise of this right except under the strictly defined conditions provided for in Article 8(2) ECHR, which requires the interference to be ”necessary in a democratic society”. The ECtHR has developed the notion of necessity as implying “that an interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued.” (Olsson v Sweden , para. 67). It is doubtful in these cases that limitation of the applicants’ dignity constitutes a “pressing social need”; indeed, a total ban on assisted suicide cannot be said to be a “proportionate” measure to safeguard against the inherent risks of assisted suicide. There is evidence of other means of safeguarding against abuse across Council of Europe jurisdictions.
Margin of Appreciation
The margin of appreciation is a discretionary concession, permitted by the ECtHR to Member States when there exists no sufficient commonality across Europe regarding the rights or restrictions at issue. In S.H. & Others v. Austria , the importance of an “emerging European consensus” was highlighted as a useful indicator for the ECtHR. Legal precedent on assisted suicide in the Council of Europe has gained momentum in the past decade. In various jurisdictions, assisted suicide is a legal option if the act is voluntary and administered under professional care (e.g. Germany, Switzerland). Passive euthanasia by withholding treatment is legal across Europe (e.g. Scandinavia, the Benelux, Germany, France, Slovenia). Indeed, research has shown that the “slippery slope” argument is of limited validity: according to Mr. Dick Marty, in the 10 years that euthanasia has been legal in the Netherlands, no increase in the number of cases can be observed.
It is vital for courts to uphold human dignity as the essential value of the ECHR. The importance of one’s right to self-determination and autonomy in deciding one’s death falls within the sphere of basic human dignity, and jurisprudence supports this. Indeed, Dworkin suggests that: “Dying constitutes the final chapter, the denouement of each individual’s endeavour to form, revise and communicate his own idea of who he is and what he is about.”
The fact of the English DPP’s decision to effectively refrain from prosecuting those who assist suicide clearly indicates a pivotal change since Pretty, and – on top of the emerging jurisprudential consensus within the Council of Europe – should inspire domestic courts in Fleming and Martin’s case to respect the applicants’ ECHR rights.