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Article Germany: Allowing Juvenile to Stop Medical Treatment for Cystic Fibrosis Constitutes Torture

(Sept. 11, 2015) On August 4, 2015, the German Federal Court of Justice (Bundesgerichtshof, BGH) held that letting a 12-year-old boy decide if he wants to continue treatment for the genetic disease cystic fibrosis, from which he had suffered since early childhood and for which he needed constant medical treatment, constitutes neglect of the custodian’s duty of care and therefore torture of a ward. The two defendants were each sentenced to three years in prison. (BGH Aug. 4, 2015, 1 StR 624/14 (in German).)

Cystic fibrosis causes severe damage to the lungs and digestive system. The disease is not curable, but treatment can alleviate symptoms and reduce complications. (Mayo Clinic Staff, Diseases and Conditions: Cystic Fibrosis, Mayo Clinic website (July 7, 2015).)


The victim was born in 1987 and had suffered from cystic fibrosis since early childhood. The disease demands constant and elaborate medical treatment, including antibiotics and a special diet, frequent doctor’s visits, and physical therapy. (BGH, 1 StR 624/14,¶ 4.) At the end of 1999, the victim and his two siblings moved with his mother (the first defendant), who had sole custody, into the household of the mother’s boyfriend (the second defendant). The boyfriend voluntarily took on the duty of care of the victim. The second defendant is also known as the “Guru of Lonnerstadt” or the “Guru of Ailsbach” and is interested in a “spiritual, esoteric, theosophical, and religious” lifestyle. Both defendants saw spirituality as the center of their life, meditated on a regular basis, and preferred alternative healing methods to conventional medicine. (Id. ¶ 6.)

After the family moved in with the second defendant, the defendants stopped supplying his medication to the victim, did not take him to see a doctor, and did not feed him the required special diet. They left it up to the victim to decide whether he wanted to continue his treatment, and, according to the Court, due to his young age and the difficulties of his therapy, he was relieved to stop. Instead, the second defendant meditated daily with the victim and suggested that meditation would heal him before he turned 18. (Id. ¶¶ 8 & 9.)

The victim’s condition slowly deteriorated over the course of three years. In the end, he suffered from severe headaches and acute breathing problems when he performed minor physical activities. Furthermore, he had not gained any weight during the three-year period. (Id. at ¶ 11.) In 2002, the family court transferred custody to the father of the children, and the victim moved in with his father. The victim’s condition was extremely alarming and potentially life threatening. Further non-treatment could have led to his death within weeks. The damage to his lungs is irreversible. (Id. ¶¶ 12 & 13.)


The Federal Court of Justice confirmed the lower court’s ruling and held that the defendants’ omission qualified as torture, because the defendants maliciously neglected their duty of care owed to the victim and therefore placed him in danger of a serious injury or a substantial impairment of his physical development. (Id. ¶¶ 15, 19, & 55.) The crime of abuse of a ward generally carries a sentence of imprisonment for from six months to ten years and a mandatory minimum sentence of one year of imprisonment in serious cases. The crime can be constituted by an act of torture or serious abuse or by the omission of malicious neglect of the duty of care owed to a ward. (German Criminal Code (Nov. 13, 1998, as amended), BUNDESGESETZBLATT [FEDERAL LAW GAZETTE] I at 3322, § 225,¶¶ 1 & 3, GERMAN LAWS ONLINE.)

According to settled case-law of the Federal Court of Justice, the element of “torture” is defined as the infliction of long lasting or repeated (significant) physical or emotional pain or suffering. (BGH, 1 StR 624/14,¶ 30.) The Court also noted that torture can be committed either as a direct act or as an omission. It opined that, in particular, custodians who do not secure pain-alleviating treatment for a minor are guilty of torture by omission. (Id. ¶ 36.) In the view of the Court, the defendants tortured the victim by not providing him with the required, possible treatment so that his condition deteriorated significantly and he suffered from unnecessary and significant pain for a period of three years. (Id. ¶¶ 15 & 38.) The defendants’ duty of care to the minor obligated them to provide him with treatment or force him to accept treatment against his will if necessary. (Id. ¶¶ 16 & 46.) Given that a long time has passed since the crime was committed and that the media coverage of the crime stigmatized the defendants, the Court concluded that the sentencing to three years in prison was appropriate. (Id. ¶ 54.)

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