Pretty v.

UK

Ratio: The applicant was paralysed and suffered a degenerative condition. She wanted her
husband to be allowed to assist her suicide by accompanying her to Switzerland. English law
would not excuse such behaviour. She argued that the right to die is not the antithesis of the
right to life but the corollary of it, and the state has a positive obligation to protect both.

Held: The article reflected the sanctity of life, and cannot be interpreted as including a right
to die. Some Convention rights have been interpreted to confer rights not to do that which is
the antithesis of what there is an express right to do, but there was not a right not to
experience the opposite of what the articles guarantee for articles 3, 4, 5 and 6. It was an
impermissible step to proceed to the assertion that the state has a duty to recognise a right
to be assisted to take one’s own life. The prohibition of assisted suicide is inconsistent with
the Convention. ‘[Article 3] may be described in general terms as imposing a primary
negative obligation on States to refrain from inflicting serious harm upon persons within their
jurisdiction.’
‘As the court has had previous occasion to remark, the concept of ‘private life’ is a broad
term not susceptible to exhaustive definition. It covers the physical and psychological
integrity of a person . . It can sometimes embrace aspects of an individual’s physical and
social identity . . Elements such as, for example, gender identification, name and sexual
orientation and sexual life fall within the personal sphere protected by article 8 . . Article 8
also protects a right to personal development, and the right to establish and develop
relationships with other human beings and the outside world . . Though no previous case
has established as such any right to self-determination 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.’

Pretty v UK (Application no. 2346/02)

Facts
The applicant, a British national, was paralysed as a result of a degenerative and
terminal illness, and sought a guarantee from the Director of Public Prosecutions (DPP)
that her husband, if he helped her to commit suicide, would be immune from
prosecution. Her intellect and capacity to make decisions remained unimpaired by the
illness. She emphasised her determination to control how and when she died, but her
disease prevented her from committing suicide which is legal under UK law. She claimed
that the domestic law on assisted suicide infringed her rights under Articles 2, 3, 8, 9 and
14 of the European Convention on Human Rights.

Law
The applicant alleged infringement of Article 2 (right to life), Article 3 (prohibition of
torture and degrading treatment), Article 9 (freedom of thought, conscience and
religion) and Article 14 (non-discrimination).
The applicant sought to challenge the validity of the refusal of the DPP to assure her
husband’s immunity from prosecution, and Section 2(1) of the Suicide Act 1961, which
made it a crime to assist another to commit suicide.

Legal Arguments

The Applicant
The applicant submitted that Article 2 protected the right to life, not life itself, and
protected an individual from arbitrary deprivation of life by a third party, not from the
individual’s own choice to die. She argued that Article 3 encompasses a government’s
positive obligation to protect people from degrading treatment, which is what she
believed the manner of her death if unassisted would amount to; that Article 8
encompassed the right to make decisions about one’s own body and that the state’s
interference with this right was not justified; and that Article 9 protected her freedom to
believe in the notion of assisted suicide, and that the blanket ban in the UK allowed no
consideration of the applicant’s personal circumstances.

Concerning Article 14, the applicant alleged that she suffered discrimination by being
treated in the same way as those whose circumstances were completely different. She
was prevented from enjoying the right to end her own life as exercised by others
because of her disability. The applicant submitted that the Government justified the ban
in terms of protecting the vulnerable, but as she was not vulnerable there was no
objective or reasonable justification for the difference in treatment.

The Government
The Government submitted that Article 2 imposed primarily a negative obligation, and
expressly provided that no one should be intentionally deprived of life save in very
restricted circumstances which did not apply to this case. It submitted that Article 3 was
not engaged in this case as again it had been found to comprise a primarily negative
obligation except in three exceptional circumstances which did not apply to this case,
and that even if it were engaged it would not confer a legally enforceable right to die.
Also that Article 8 in providing a right to family life did not provide a right to die, and
even if it did then the State was entitled, within its margin of appreciation, to determine
the extent to which an individual could inflict and injury on him/herself; and that the
facts of the case did not fall within the ambit of Article 9 as it did not confer a general
right of an individual to engage in any activity in pursuance of their beliefs. The
Government argued that Article 14 did not apply as the applicant’s complaints did not
engage any of the substantive rights she relied upon. Further to this, it argued that even
if Article 14 was engaged there would still be no discrimination as the applicant was in
the same position as others who were unable to take their own lives without assistance,
the Suicide Act 1961 conferred no right to commit suicide, and there were clear and
reasonable justifications for any alleged difference in treatment.

Decision
The Court determined that the facts of the case fell within the ambit of Article 8, which
was examined in conjunction with Article 14, focussing on the claim that she was
prevented from exercising a right enjoyed by others who could end their lives without
assistance because they were not prevented from doing so by any disability. The Court
emphasised that under the Convention, discrimination may entail equal treatment of
those in different conditions, but also reiterated that member states have a margin of
appreciation in their application of the convention. In this case, the Court found the
Government had reasonable justification for not creating different legal regimes
concerning assisted suicide for those physically able and those physically unable due to
the risk of abuse and undermining of the protection of life safeguarded by the 1961
Suicide Act. For these reasons, the Court unanimously found no violation of Article 14 of
the Convention, and no violation of Articles 2, 3, 8 and 9.

Sahin v. Turkey

Brief Fact Summary. A Turkish Muslim by the name Sahin (P) alleged that the Republic of
Turkey (D) violated her rights and freedom under the Convention for the Protection of
Human Rights and Fundamental Freedoms by banning the wearing of the Islamic headscarf
in institutions of higher education.

Synopsis of Rule of Law. Students rights and freedom under the Convention for the
Protection of Human Rights and Fundamental Freedoms are not violated when a secular
country places a ban on wearing religious clothing in institutions of higher education.

Facts. Sahin (P) had a traditional background of family practicing Muslims and considered it
her religious duty to wear the Islamic headscarf. When she was in her 5th year at the faculty
of medicine of the University of Istanbul in 1998, the Vice-Chancellor of the University issued
a circular which stipulated that students with beards and wearing the Islamic headscarf
would be refused admission to lectures, courses and tutorials. Sahin (P) was denied access
to a written exam and the University authorities refused to enroll her in a course and to admit
her to various lectures and other written exams because of the Islamic headscarf she was
putting on. She later left the University to further her studies in Vienna and had lived in
Vienna since then. Before leaving Istanbul, Sahin (P) filed an application against the
Republic of Turkey (P) with the European Commission of Human Rights and Fundamental
Freedoms alleging that her rights and freedom under the Convention had been violated. A
judgment was rendered by the European Court after it heard the case.

Issue. Are students’ rights and freedom under the Convention for the Protection of Human
Rights and Fundamental Freedoms violated when a secular country places a ban on the
wearing of religious clothing in institutions of higher learning?

Held. No. Student’s rights and freedom under the Convention for the Protection of Human
Rights and Fundamental Freedoms are not violated when a secular country places a ban on
wearing religious clothing in institutions of higher education. Constitutionally, Turkey (D) is a
secular state founded on the principles of equality without regard to distinctions based on
sex, religion or denomination. In 1989, Turkey’s (D) Constitutional Court decided that
granting legal recognition to a religious symbol such as the Islamic headscarf was not
compatible with the principle that the state education must be neutral and might generate
conflicts between students of different religions. The Vice Chancellor explained the banning
of the headscarf at the University School of Medicine in a memorandum which was
circulated that the ban was not intended to infringe on students freedom of conscience or
religion, but to comply with the laws and regulations in force and that such compliance would
be sensitive to patients’ rights. Hence, the ban did not prohibit Muslim students from
manifesting their religion in accordance with habitual forms of Muslim observance and it was
not directed only at Muslim attire. So the view of the Court should not be interchanged for
that of the University who are better placed to evaluate local needs. The right to behave in a
manner governed by a religion belief is not guaranteed by Article 9 and it also does not
confer on people who do so the right to disregard rules that have proved to be justified. By
giving due regard to Turkey’s (D) margin of appreciation, the interference here was justified
in principle and proportionate to aim pursued. Hence, Article 9 was not contravened.

Dissent. (Tulkens, J.) Religious freedom is necessary for the protection of a democratic
society and not secularism alone. Therefore, the Court should have established that the ban
on wearing the Islamic headscarf was necessary to secure compliance with secularism and
met a “pressing social need.”� But a cogent example supporting the Court’s view is not
provided. Hence, the ban was not based on relevant or sufficient reasons and therefore
cannot be deemed interference that is “necessary in a democratic society”� within Article 9
S 2’s meaning. Sahin (P) right to freedom of religion under the Convention has therefore
been breached.

Discussion. Margin of appreciation is the word-for-word English translation of the French

phrase “marge d’appreciation,”� a concept used in a number of courts in Europe, among
them the Strasbourg human rights court and the European Union courts in Luxembourg. The
Court is covered under the margin of appreciation to account for the fact that the Convention
will be interpreted differently in different signatory states, so that judges are obliged to take
into account the cultural, historic and philosophical contexts of the particular nation in
question.