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ECHR : Haas v. Switzerland : Brief Dignitas

ECHR : Haas v. Switzerland : Brief Dignitas

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ECHR CEDH
case Haas v. Switzerland ( )
Brief amicus curiae Dignitas
Author : Ludwig Minelli
ECHR CEDH
case Haas v. Switzerland ( )
Brief amicus curiae Dignitas
Author : Ludwig Minelli

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Published by: ECHR News on Jul 03, 2011
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10/30/2013

Sender.: P.O.B. 9, CH-8127 Forch P.O.B.

9 CH-8127 Forch Phone national 044 980 44 59 international +41 44 980 44 59 Telefax national 044 980 14 21 international +41 44 980 14 21 E-Mail dignitas@dignitas.ch Internet www.dignitas.ch

European Court of Human Rights First Section 67075 Strasbourg-Cedex France

November 17, 2008 Application no. 31322/07 Haas v. Switzerland Dear Mr. President Dear Members of the Court We would like to express our gratitude to have been granted the opportunity to submit considerations in this case, in the position of an amicus curiae in the sense of article 36 § 2 of the Convention, which might be of value to the Court in view of the judgment. A. Does the Convention contain a right to a voluntary death? Please allow us to refer to the judgment of the Court in the case of DIANE PRETTY v. the United Kingdom dated April 29th, 2002. In said judgment, at the end of paragraph 61, the Court expressed the following: «Although no previous case has established as such any right to selfdetermination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.» We would like to adhere to the statement of the Swiss Federal Court of November 3rd, 2006 which answered this question positively, by recognizing that someone’s decision to determine the way of ending his/her

DIGNITAS to the European Court of Human Rights / First Section / Strasbourg 17/11/2008 page

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life is part of the right to self-determination protected by article 8 § 1 of the Convention. This is the first national decision amongst the 47 contracting states which expressly acknowledges this right. There is reason for your Court to clearly confirm this judgement. The respect for human personal autonomy, which your Court acknowledges as an important principle in order to interpret the guarantees of the Convention, possibly does not leave room for a different decision. Furthermore, in paragraph 65 of the before mentioned judgment DIANE PRETTY, the Court literally expressed:
«The very essence of the Convention is respect for human dignity

and human freedom. Without in any way negating the principle of sanctity of life protected under the Convention, the Court considers that it is under Article 8 that notions of the quality of life take on significance. In an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity.» Dignity and freedom of humans mainly consist in the acknowledgment of the right of someone with full capacity of discernment, to decide even on existential questions for him/herself, without outside interference. Everything else would be paternalism compromising said dignity and freedom. In the judgment DIANE PRETTY v. the United Kingdom, the Court correctly recognized that this problem will present itself increasingly within the Convention’s jurisdiction, due to demographic developments. There-

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fore, a decision in this fundamental question is in the high interest of everyone living within said territory (and for all others as well). Thus, for the first time, your Court has been posed the question whether the Convention, in the range of article 8, also contains a guarantee for someone to decide – in the frame of the right to self-determination – when and how he/she wishes to die, and whether the high contracting parties of the Convention meet a positive obligation to enable such persons to be allowed access to the best and mildest means available. In the light of the sometimes fierce discussions in the contracting states on the subject of euthanasia, especially on questions regarding assisted suicide, a clear and unambiguous statement of your Court would be highly appreciated. It would be quite disappointing, if the Court would consider the decision of the Swiss Federal Court of November 3rd 2006 solemnly under the aspect of a national enhancement of the application of article 8 § 1 of the Convention which according to article 53 of the Convention may merely not be limited upon interpretation of the Convention. B. To which extent does article 2 ECHR – the right to life – play a role? In the judgment DIANE PRETTY v. the United Kingdom, the Court rightly paid great attention to the question of the influence of article 2 – the right to life. In that judgment – based on explanations by the British Government – especially the aspects of protection for the weak and vulnerable were discussed. In the meantime, the experience of the US-American state of Oregon due to its «Death With Dignity Act» shows that the question of the weak and vulnerable does not pose a problem in reality: Neither the weak nor the vulnerable nor those with insufficient or even without health insurance

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would choose the option of physician assisted suicide – but in fact the self-conscious, the above-average educated, the strong ones. We allow ourselves to refer to the death with dignity act annual reports of the Department of Human Services of the state of Oregon (published in the internet under the following link: http://egov.oregon.gov/DHS/ph/pas/arindex.shtml). The existing careful procedures of the associations in Switzerland, which besides are contributing to the improvement of the situation of severely ill and suffering people towards prolonging their life also offer the option of assisted suicide, make sure, that – before a request for an assisted suicide is put into practice –, a meticulous evaluation of possible alternatives towards life takes place. Allegations raised in the media that said associations would help hastily, even precipitous towards an assisted suicide, are entirely imaginary. Concerning our association, we are ready at all times to give your Court or a delegation direct insight into our respective original files. In our opinion, a contracting state may only regulate the right of an individual, who independently decides on time and method of his/her demise, to the extent that such state would prevent hasted, in the individual case not sufficiently considered actions. As far as the associations working in this field have already such preventive regulations in place, governmental measures are not necessary in a democratic society. C. Consideration of the ARTICO-jurisdiction We would like to emphasize that in this context, since the case of ARTICO v. Italy (judgment of May 13th, 1980, series A no. 37, no. 6694/74), the developed practice is of major importance. In paragraph 33 of said judgment the Court literally explained:

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«The Court recalls that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical
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and effective; . . .» If the Convention, in the frame of the guarantee of article 8 § 1, comprises the right or the freedom to suicide – as we presume –, then everyone who wishes to make use of this right or freedom has a claim that it shall be enabled to be done in a dignified human way. Such person shall not be left to rely on methods which are painful, comprise considerably risk of failure and/or even endanger third parties. The method which has to be available shall enable him/her to pass away risk-free, painless and within a relatively short time. Such method shall also consider aesthetical aspects in order to enable relatives and friends to attend this process without them being traumatized. All this requirements can only be entirely fulfilled if as a method for suicide the effective and safe barbiturate Pentobarbital of Sodium («Natrium Pentobarbital») is available, and if at the same time experienced personnel («assisted suicide escorts») ensure its correct application. Pentobarbital of Sodium is the only agent which in high dosage leads to falling asleep within two to five minutes and then to a deep coma. Subsequently, death occurs usually within less than an hour due to a paralysis of the respiratory centre after having caused unconsciousness. This enables relatives and friends to attend the last hours of their loved ones and to bid farewell – a process which is of great importance for those involved. Out of numerous feedbacks from relatives and friends we know how important it was for them to say goodbye in this way, and that through this the subsequent mourning phase could be well handled. In case of suicide with violent methods and without relatives and friends

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attending or even knowing, those left behind usually experience severe traumatisation. D. The protection of life and the general problem of suicide In the case of DIANE PRETTY, your Court had an opportunity to consider the question of protection of life only in the light of the individual life of a single person who wishes to end life self-determined. This has to be attributed to the fact that the lawyers of Diane Pretty did not put to discussion the aspect of protection of life in its general social context, which might have played an important role and which might have even lead to an approval of Mrs. Pretty’s application. The principle of sanctity of life which is enshrined in article 2 of the Convention does not only protect the life of each individual which might be endangered due to use of force by a contracting state or actions by some of its individual citizens. The principle also should apply in questions regarding public health, which results in direct effects on the life of all citizens. Up until now, the national and international debates on euthanasia never realized that besides the small number of individuals who wish to end their life due to severe sufferings with one of the several available methods (palliative care, assisted suicide, etc.), there is a problem on a much larger scale which questions the sanctity of life. We are speaking of the general problem of suicide and suicide attempts. Switzerland especially, but also many other contracting states, show very high numbers of suicide attempts and even higher counts of failed suicide attempts. In response to the request regarding information on suicide and suicide attempts in Switzerland of Mr. Andreas Gross, member of the Swiss National Council, the Swiss government rendered its com-

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ments to the parliament on January 9th 2002. The government explained that – based on scientific research (National Institute of Mental Health in Washington) –, Switzerland might have up to 67’000 suicide attempts annually – that is approximately 50 times the annual number of 1’350 of fulfilled (and registered) suicides. Accordingly, the two largest contracting states of the Convention – Germany and France – which each count about 11’000 officially registered suicides annually, the suicide attempts in each of these two countries have to be estimated up to 550’000 per year. These figures show that the number of assisted suicides in Switzerland, which has not risen above 500 annually, may well be described as minor. Despite the enormous number of fulfilled and failed suicides attempts, which commonly cause considerable health problems to the individual as well as to third parties, adequate governmental measures towards an improved suicide and suicide attempt prevention appear to be lacking almost entirely. On the one hand, the strategies of preventing suicide attempts mainly base on increasingly restricting access to means for a safe and painless suicide over the past decades, to the extent of almost non-availability. Consequently, statistics show a shift towards violent suicide methods. On the other hand, the societies of the contracting states have delegated the problem of suicide prophylaxis to a group of specialists: the psychiatrists. This is astonishing in two ways: In forensic science it is known that amongst the diverse professional groups, the suicide rate amongst physicians reaches a top ranking. This is of little surprise given their possibilities of access to safe pharmaceutical suicide means. Within the professional group of physicians however, the psychiatrists show the highest suicide rate at all.

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This fact, as well as the conflict of interest in which psychiatrists find themselves because of patients who are especially suicidal due to their psychic suffering, should actually be ruled out of putting the burden of suicide prevention on them. It is an open secret that the professional group of psychiatrists profits from each patient who is hospitalized in a psychiatric clinic; admitting someone to the clinic is the most common measure of psychiatrists, if a patient indicates signs of attempting or having attempted suicide. Yet, at the same time it is known that the risk of a «successful» suicide attempt is at its highest just after release from a psychiatric clinic. Thus, the strategy of delegating suicide prevention measures specifically to this professional group does not make sense. The experience of our association drawn from ten years of working in the field of suicide prevention shows that - paradoxically - the option of an assisted suicide without having to face the heavy risks inherited in commonly known suicidal attempts is one of the best methods of suicide prevention. Based on a study on our work we know that from a sample group of people who – through the given procedure in our association –, received approval from a Swiss physician that he/she would issue the necessary prescription for an assisted suicide, 70 % did not contact us again after such notification. Only 12 % - some after quite a long time - made use of the option of an assisted suicide. For many, the prospective of such prescription signifies a return to personal choice in a time of their fate governed by their suffering. It enables many to calmly wait for the future development of their illness and not to prematurely make use of an assisted suicide. Our experience with people who do not suffer from an illness or other impairment but who wish to end their life due to a personal crisis shows,

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that the possibility for them to talk with us openly and without fear of being put in a psychiatric clinic has a very positive effect: They are being taken serious (often for the first time in their life!). Through this, they are offered the possibility of discussing solutions for the problem which brought them to be suicidal in the first instance. They are not left to themselves and rejected like other suicidal individuals who would not discuss their suicidal ideas with others due to the fear of being deprived from freedom for at least some time. Also in this respect we are ready to present your Court upon request quite a number of individual cases. This shows, that a liberal solution, which entirely respects the suicidal human being, offers more sophisticated results than solutions which in such situations deprive individuals from their dignity, personal freedom and responsibility for themselves. E. The social problem in the modern politics and media society Please allow us finally to state some comments on the connection between the social problem of suicide and the societies of nowadays. Questions entailing life and death have always been subject of sensationalism. Deliberately or non-deliberately generating life just as well as deliberately ending life can be well considered as the primary sensation to which the media has related to for centuries. Additionally, it is to be taken into account that the question of deliberately and freely ending one’s life, is ruled by world-view aspects, which always were based on the polarity of either complete approval or complete disapproval. Also, during the 20th century, the misleading use of the euphemistic term «Euthanasia» by the German National Socialist came

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along, which only served to conceal the barbarous mass murdering of «unworthy life». Today’s media – and even politicians – mainly draw their existence from offering their consumers a daily motive for emotional outrage. The Zürich full professor in sociology, KURT IMHOF, made this clear in an interview that he granted the «Neue Zürcher Zeitung» on December 8th, 2007, and stated that the result of such media coverage lies much further within the field of fiction than fact. As to the topic of self-determined ending of life, it is obvious that it offers opposite opinions between those who disapprove suicide due to their religious believes and/or paternalistic positions and those who are in favour of the option of this «last human right», which often is exploited by politicians and media in order to fuel emotions. Therefore it is most important to realise, that within a democratic society, standard criteria for deciding such questions shall never be a personal world-view («Weltanschauung») and conviction. This would lead to a restriction of the right to freely choose one’s self-determined ending of life. In a secular and pluralistic society it should be understood that questions of this manner must be answered from the view point of enlightened («aufgeklärt»), free and not the «absolute truth» claiming humans, in order to avoid wrongly understood paternalism in these essential subjects. Yours faithfully, DIGNITAS To live with dignity – To die with dignity

Ludwig A. Minelli Secretary General Attorney-at-law

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