The European Court of Human Rights conceives the European Convention as a ‘living instrument’, which must be interpreted in the light of present-day conditions.[1] Accordingly, ‘the Court cannot overlook the marked changes…[occurring] in the domestic law of the member States’, [2] and may vary its evaluation as to the infringement of ‘new’ human rights. The activism of Strasbourg judges is often restrained by the need to justify the extension of the Convention provisions to its Member States. Thus, a long set of judgments is usually required before the final recognition of the need to protect a right that was not previously recognized by the Court”.[3] These judgments also have the function of defining the extent of the ‘new’ human right.

The present post focuses on the position of the European Court of Human Rights towards end-of-life situations (encompassing very different practices, from active euthanasia and assisted suicide to the choice of discontinuing artificial nutrition and hydration, or passive euthanasia; from cases in which the person involved has freely chosen to die, as well as cases in which a person is not able to take a decision in this regard). Obviously, end-of-life situations represent a very complicated phenomenon, involving not only the law, but also moral choices and values. What is certain is that nowadays, there is an increasing number of cases in which people ask for a recognition of their ‘right’ to die with dignity. However, only some Member States of the ECHR have addressed this issue through domestic law. Accordingly, in many Member States, the choices connected to end-of-life situations are dealt with by the judiciary, and this is evident from the increase in applications to domestic or international judges on the broad area of “euthanasia”.

End-of-life situations are a good example of the new ‘present-day conditions’ in need of legal regulation. The European Court of Human Rights is involved in this process; however, its position is difficult, as there is no clear consensus among the Member States on the topic. Thus, the Court is striving to find a balance between an evolutive interpretation of the ECHR and the lack of a shared ‘European consensus’ on the topic. A case involving passive euthanasia is currently pending before the European Court of Human Rights,[4] and the first hearing is going to take place on 14 January 2015. This post wishes to briefly examine the Court’s position on end-of-life situations in a number of cases preceding this pending case.

ECtHR case law on end-of-life situations

The lack of consensus among Member States on end-of-life situations was at the basis of the Court’s first relevant decision on the topic. The case was that of Mrs Pretty, a British national suffering from an incurable, degenerative disease, who wanted to end her life.[5] Her disease did not allow her to commit suicide: however, if her husband helped her in committing suicide, he could face prosecution under English law. The applicant argued that Article 2 ECHR not only protects the right to life, but it also entails the right to choose whether or not to go on living. The European Court dismissed the claim, concluding that the right to life could not ‘without a distortion of language, be interpreted as conferring the diametrically opposite right, namely a right to die’.[6] The applicant further argued that, under Article 3 ECHR, Member States have an obligation to refrain from torture or inhuman and degrading treatment, as well as an obligation to protect their citizens from similar sufferings. The European Court stated that the applicant’s claim placed ‘a new and extended construction on the concept of [inhuman and degrading] treatment, which…goes beyond the ordinary meaning of words’. The Court stressed the need to interpret Article 3 ECHR ‘in harmony’ with Article 2 ECHR, and concluded that no obligation arose requiring the respondent state not to prosecute the applicant’s husband for assisting her to commit suicide.[7] The applicant also argued that Article 8 ECHR includes the right to self-determination, and thus the right to choose when and how to die. Interestingly, the Court stated that it was ‘not prepared to exclude’ that there had been an interference with the applicant’s right to respect for private life.[8] However, it noted that the interference fell within the legitimate area of discretion of the respondent State.[9] Thus, the Court held unanimously that there had been no violation of any Articles of the Convention.

The Court’s positive outlook towards the potential applicability of Article 8 ECHR to end-of-life situations cases has been reaffirmed by a 2013 Chamber judgment, in the case of Gross v Switzerland. The judgment is now deprived of its legal effect by a Grand Chamber ruling;[10] however, it is still an interesting sample of how the ‘free choice of how to die’ may be a developing human right in the ECHR system.

The case was that of Ms Gross, an elderly woman wishing to end her life by reason of the continuing decline of her physical and mental faculties, caused by old age. The case thus dealt with a peculiar situation, since even though Ms Gross had the physical ability to commit suicide, she claimed her entitlement to a painless and “safe” death. Unlike other Member States of the ECHR, Switzerland regulates assisted suicide. According to the Federal Supreme Court’s case law, physicians are exempted from criminal liability when performing assisted suicide in accordance with the Swiss medical ethics guidelines. These guidelines require, among other conditions, that the patient is suffering from an illness that will lead to “death within a matter of days or a few weeks”. This was not the case of Ms Gross. Thus, even if her ability to form a reasoned and well-considered choice on suicide had been attested by a psychiatric examination, her request to be given a prescription for sodium pentobarbital had been declined by Swiss physicians. Her appeals to obtain an exemption from the need of a prescription had been rejected by the Federal Supreme Court. On that occasion, the Swiss Court had also assessed that the State had no positive obligation, under the European Convention, to grant its citizens an undetermined right to die; and that since another case on the same issue (Haas v Switzerland) was under the scrutiny of the European Court, it was up to that Court to determine whether the Swiss legislation was compatible with the European Convention. Thus, Ms Gross applied to the European Court of Human Rights, and her claim focused particularly on an alleged violation of Article 8 ECHR, protecting the right to private life.

The Strasbourg Court agreed that the applicant’s claim fell within the scope of Article 8 ECHR, something that was not surprising since the Court’s previous case law on assisted suicide had already cleared the path for this option. Nevertheless, the Court departed from its previous case-law by deciding to analyse Mrs Gross’s case from a new (and unexpected) perspective: that of legal certainty. The Court held that, since the Swiss medical ethical guidelines apply only to patients suffering from an incurable and deadly illness, the situation of people in Mrs Gross’s state was not regulated by Swiss law. Accordingly, this lack of regulation was likely to cause “a chilling effect on doctors”, and a “considerable degree of anguish” on people in the applicant’s state. The Court thus concluded that the Swiss law, even though it provides the possibility of obtaining a lethal dose of sodium pentobarbital on medical prescription, does not provide sufficient guidelines ensuring clarity as to the extent of this right. On this basis, the Chamber acknowledged that a violation of Article 8 of the Convention had occurred. The Court carefully pointed out that its conclusions related only to the absence of clear and comprehensive legal guidelines, without in any way taking up a stance on their substantive content.

Waiting for the Court’s decision in Lambert

As noted, a case involving passive euthanasia is currently pending before the European Court of Human Rights. The case originated in a road-traffic accident, as a result of which a French citizen, Mr Lambert, is tetraplegic and in a vegetative state. The decision of suspending his artificial nutrition and hydration, taken by French judicial authorities in accordance with the French law, has been contested by some of Mr Lambert’s relatives. The applicants claim that it represents an infringement of Articles 2, 3, 6 and 8 ECHR.

This case is completely different from the ones analysed above, as it involves a person who is not capable of expressing his will. Thus, it is more in line with a complaint under Article 2 ECHR, or with Article 3 ECHR, rather than with a complaint grounded on Article 8 ECHR. For this reason, it could be a good occasion for the Strasbourg Court to review, or to reaffirm, its previous position on two important aspects, namely positive obligations descending from Article 3 ECHR, and negative obligations descending from Article 2 ECHR. As the consensus among Member States on euthanasia is still scarce, it is likely that the Court will not depart from the positions expressed in Pretty. However, this could be the chance for the Court to promote a more activist position, thus reaffirming its role of interpreter of present-day conditions on human rights. [11]






[1] Tyrer v the UK (1978) Series A no 26, par 31, Marckx v Belgium (1979) Series A no 31 par 41

[2]   Dudgeon v the UK (1981) Series A no 45, par 23

[3] See e.g. the evolution of the ECtHR’s case law on transsexuals’ rights, from Rees v UK to Goodwin v UK

[4] Lambert and Others v France,  App 46043/14, 23 June 2013, referred to the Grand Chamber in November 2014

[5] Pretty v UK, ECHR 2002-III

[6] Ibidem

[7] Pretty v UK, par 56

[8] Pretty v UK, par 71

[9] Ibidem

[10] Gross v Switzerland , App no 67810/10 (ECtHR [GC] 30 September 2014)

[11] An International Law Blog is going to be updated following the developments of the Strasbourg case law in Lambert v France