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Germany: Constitutional Court Strikes Down Provision Criminalizing Commercial Assisted Suicide

(Apr. 29, 2020) On February 26, 2020, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) held that the provision in the German Criminal Code criminalizing commercial assisted suicide is unconstitutional. The Court stated that the general right of personality encompasses a right to a self-determined death, which includes the freedom to take one’s own life as well as the right to seek and use voluntarily offered help to do so. Making commercial assisted suicide a punishable crime renders the right to use help to end one’s life de facto impossible, in the opinion of the Court.

Facts of the Case

The case dealt with several constitutional complaints against section 217 of the Criminal Code, which were heard jointly. The constitutional complaints were submitted by Swiss and German associations offering assisted suicide, persons with serious illnesses seeking to end their lives with the assistance of such associations, physicians working in outpatient or inpatient care, and lawyers advising on suicide-related matters, among others. (BVerfG paras. 1, 2.)

Section 217 provides that “[w]hoever, with the intention of assisting another person to commit suicide, provides, procures or arranges the opportunity for that person to do so and whose actions are intended as a recurring pursuit incurs a penalty of imprisonment for a term not exceeding three years or a fine.”

Decision

The Federal Constitutional Court first recounted the history of the adoption of section 217 and gave an overview of the criminal impunity of suicide and of aiding and abetting suicide, which have been in place since the adoption of the Criminal Code in 1871. It stated that section 217 was adopted in 2015 with the intention to prevent the normalization of assisted suicide and to counteract rising pressure on vulnerable people. (Paras. 10–22.) It noted that the current law does not criminalize aiding and abetting suicide in general, but only when it is performed on a commercial scale. Furthermore, aiding and abetting suicide does not have to result in an actual suicide (abstract endangerment). (Paras. 24, 25.) The Court subsequently provided a comparative overview of the legal situation regarding assisted suicide in Switzerland, Belgium, the Netherlands, the State of Oregon, and Canada. (Paras. 26–32.)

The Court held that the prohibition of commercial assisted suicide violates the general right of personality, which encompasses the right to a self-determined death. (Para. 202; Basic Law art. 2, para. 1 in conjunction with art. 1, para. 1.) It explained that the right to a self-determined death includes the freedom to take one’s own life as well as the right to seek and use voluntarily offered help to do so. (BVerfG para. 203.) It reiterated its settled case law that respecting and protecting human dignity and freedom are fundamental constitutional principles that view human beings as persons capable of self-determination and autonomous decision-making. The general right of personality as an “unnamed right of freedom” protects freedoms that are not the subject of other constitutional provisions guaranteeing freedoms, but that are equivalent in their essential significance for defining one’s personality. (Para. 205.) The idea of autonomous self-determination derived from human dignity is further defined in the rights guaranteed by the general right of personality. Among other things, it guarantees the right to determine one’s way of life, including the decision to end one’s life. (Paras. 207–209.)

The Court emphasized that the right to end one’s life is not restricted to serious or terminal diseases or to specific phases of life or of a disease. In the opinion of the Court, such a limitation would contradict the fact that the right to end one’s life is rooted in human dignity and therefore does not require any additional explanation or justification. (Para. 210.)

The Court further held that the right to end one’s life includes the right to seek and use voluntarily offered help to do so. Someone seeking to end his or her life often requires expert help and advice to implement such a decision in a reasonable manner, in the opinion of the Court. If the exercise of a right depends on the participation of a third party, then the right also protects against prohibitions against third parties that would prevent them from providing voluntary help. Criminal Code section 217, even though not addressed to individuals seeking to end their lives, indirectly affects them as the provision makes it de facto impossible to receive professional help because service providers have ceased their operations to avoid criminal sanctions. (Paras. 212–216.)

The Court ruled that the infringement of the general right of personality is not justified. The Court stated that as the right in question has a specific connection to human dignity, the standard of review for measures infringing it is especially strict. In general, it is the prerogative of the legislature to pass laws that balance competing constitutional rights. Courts may only review whether the legislature used its discretion in a justifiable manner. However, section 217 fails this test, in the opinion of the Court. Even though the provision has a legitimate goal of protecting a person’s life and personal autonomy by preventing the normalization of assisted suicide and the exertion of social pressure on the vulnerable, the means are not proportionate, the Court said. (Paras. 221–264.)

The Court stated that limitations of individual freedoms are only proportionate if the burden on the individual is proportionate to the benefits for the general public. However, in this case, the use of criminal law to protect life and personal autonomy does not protect making decisions but rather makes them de facto impossible. The Court noted that even though the legislature may engage in general suicide prevention, in particular by expanding palliative care options, these options as well as assisted suicide options abroad do not compensate for the absence of commercial assisted suicide in Germany. Doctors are generally disinclined to perform assisted suicide and cannot be forced to do so, which is why professional assisted suicide organizations are needed, in the opinion of the Court. The Court emphasized that the individual right to a self-determined death does not entail a right to force a third party to assist in a suicide. (Paras. 265–301.)

Lastly, the Court held that its assessment was in line with the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights.