German Federal Constitutional Court (BVerfG)Criminalisation of assisted suicide services unconstitutional

Criminalisation of assisted suicide services unconstitutional

辅助自杀行为的刑事惩罚违宪

Court: (法院)

Bundesverfassungsgericht (德国联邦宪法法院)(缩略语:BVerfG)

Zum Urteil des Zweiten Senats vom 26. Februar 2020

2020年2月26日德国联邦宪法法院第二庭判决

 

Press Release: (媒体摘要)

本文件分为7级标题,需要注意的是——本文件是德国联邦宪法法院的官方媒体摘要(Press Release No. 12/2020 of 26 February 2020)。

此文件本身并不是判决书本身,意在对公众公布法院判词,以助知晓和理解。

判决书原文思维缜密、逻辑结构体系庞杂,原文共96页,共计343段。为了简化起见,本媒体摘要仅仅提供简单的逻辑思维图和最核心的论证。

 

Suggested Citation: (引证建议)

欧盟法律判例引证建议 ECLI:DE:BVerfG:2020:rs20200226.2bvr234715

德国法律判例引证建议BVerfG, Urteil des Zweiten Senats vom 26. Februar 2020 – 2 BvR 2347/15 -, Rn. (1-343).

Source: https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2020/bvg20-012.html

 

Copyrights Disclaimer:(版权申明)

媒体摘要整理系教学资料,正式引用请以德国联邦宪法法院公布的官方文件为准。

 

 

 

The general right of personality (Art. 2(1) in conjunction with Art. 1(1) of the Basic Law, Grundgesetz – GG) encompasses a right to a self-determined death. This right includes the freedom to take one’s own life and, as the case may be, resort to assistance provided voluntarily by third parties for this purpose. Where, in the exercise of this right, an individual decides to end their own life, having reached this decision based on how they personally define quality of life and a meaningful existence, their decision must, in principle, be respected by state and society as an act of autonomous self-determination. For these reasons, the Second Senate of the Federal Constitutional Court has held, in a judgment pronounced today, that the prohibition of assisted suicide services set out in § 217 of the Criminal Code (Strafgesetzbuch – StGB) violates the Basic Law and is void. The Court found that, in practice, the prohibition effectively vitiates any possibility for the individual concerned to resort to assisted suicide. It does not follow from this judgment that the legislator is barred under constitutional law from imposing any rules on suicide assistance. However, when enacting legislative provisions, it has to ensure that sufficient space remains for the individual to exercise their right to a self-determined death and to pursue and carry out the decision to end their life on their own terms.

 

Facts of the case:(案情)

 

§ 217 StGB (prohibition of assisted suicide services – geschäftsmäßige Förderung der Selbstötung) imposes criminal punishment on anyone who, with the intention of assisting another person to commit suicide, provides, procures or arranges the opportunity for that person to do so as a professionalised service. This provision was challenged in constitutional complaints proceedings by, among others, associations offering suicide assistance based in Germany and Switzerland, persons with serious illnesses seeking to end their lives with the assistance of such an association, physicians working in outpatient or inpatient care, and lawyers advising on suicide-related matters.

 

Key considerations of the Senate:(审判庭的关键要点)

 

I. The prohibition of assisted suicide services violates the general right of personality

 

The prohibition of assisted suicide services violates the general right of personality (Art. 2(1) in conjunction with Art. 1(1) GG) in its manifestation as a right to a self-determined death afforded to persons determined to end their own lives. Even if the criminal provision were interpreted strictly to the effect that it only applied to suicide assistance rendered with the intention to offer such services on a recurring basis (Wiederholungsabsicht), such interpretation does not merit a different conclusion.

 

1. As an expression of personal autonomy, the general right of personality encompasses a right to a self-determined death.

 

As an expression of personal autonomy, the general right of personality encompasses a right to a self-determined death. This right entails not only the freedom to take one’s own life but also protects the freedom to seek and, if offered, utilise assistance from third parties to this end.

 

a) The general right of personality guarantees the right to choose, in self-determination, to take one’s own life based on an informed and deliberate decision.

 

aa) Respect for and protection of human dignity and freedom are fundamental principles of the constitutional order, informed by the central notion that human beings are capable of self-determination and personal responsibility.

Respect for and protection of human dignity and freedom are fundamental principles of the constitutional order, informed by the central notion that human beings are capable of self-determination and personal responsibility. Rooted in the belief that personal autonomy and development of one’s personality are integral to human freedom, the guarantee of human dignity encompasses in particular the protection of one’s individuality, identity and integrity. Inalienable human dignity accordingly requires that any human being be unconditionally recognised as an individual with personal autonomy. The specific guarantees deriving from the general right of personality give effect to this notion of personal autonomy and self-determination. They safeguard the basic conditions that allow the individual to find, develop and maintain their identity and individuality in self-determination.

 

Maintaining one’s personality in self-determination requires that the individual can control their life on their own terms and is not forced into ways of living that are fundamentally irreconcilable with their ideas of self and personal identity. In terms of human personality, the decision to end one’s own life is of the most fundamental significance to one’s existence. For the individual, the purpose of life, and whether and for what reasons they might consider ending their own life, is subject to highly personal beliefs and convictions. The decision to commit suicide concerns basic questions of human existence and bears on the identity and individuality of that person like no other decision. Therefore, the right to a self-determined death is not limited to the right to refuse, of one’s own free will, life-sustaining treatments. It also extends to cases where the individual decides to actively take their own life.

 

bb) The right to a self-determined death is not limited to situations defined by external causes like serious or incurable illnesses, nor does it only apply in certain stages of life or illness.

The right to a self-determined death is not limited to situations defined by external causes like serious or incurable illnesses, nor does it only apply in certain stages of life or illness. Rather, this right is guaranteed in all stages of a person’s existence. Restricting the scope of protection to specific causes or motives would essentially amount to a substantive evaluation, and thereby predetermination, of the motives of the person seeking to end their own life, which is alien to the Basic Law’s notion of freedom. The individual’s decision to end their own life, based on how they personally define quality of life and a meaningful existence, eludes any evaluation on the basis of general values, religious dogmas, societal norms for dealing with life and death, or considerations of objective rationality. It is thus not incumbent upon the individual to further explain or justify their decision; rather, their decision must, in principle, be respected by state and society as an act of autonomous self-determination.

 

cc) The right to commit suicide may not be denied on the grounds that a person committing suicide forfeits their dignity

 

The right to commit suicide may not be denied on the grounds that a person committing suicide forfeits their dignity given that, by ending their life, they also give up the very basis of self-determination. Rather, the self-determined act of ending one’s life is a direct, albeit final, expression of the pursuit of personal autonomy inherent in human dignity.

 

b) The right to take one’s own life also encompasses the freedom to seek and, if offered, utilise assistance provided by third parties for this purpose.

The right to take one’s own life also encompasses the freedom to seek and, if offered, utilise assistance provided by third parties for this purpose. The free development of one’s personality, as guaranteed by the Basic Law, also protects the freedom to engage with others who for their part are also acting freely. Where the exercise of a fundamental right depends on the involvement of third parties, and the free development of one’s personality is dependent on the participation of another, that fundamental right also provides protection from restrictions that take the form of prohibiting those third parties from offering, in the exercise of their own freedom, such necessary assistance.

 

2. § 217 StGB interferes with the general right of personality of persons wishing to die, even though they are not directly addressed by the provision.

 

§ 217 StGB interferes with the general right of personality of persons wishing to die, even though they are not directly addressed by the provision. The indirect or factual impact of state measures may amount to an impairment of fundamental rights if the measure is equivalent in terms of its object and effect to a normative and direct interference. In that case, the measure requires constitutional justification. The criminalisation of assisted suicide services in § 217(1) StGB objectively has the effect of restricting the freedom to commit suicide. It makes it factually impossible for individuals to receive suicide assistance. This restriction of individual freedom is intentional in the design of the prohibition and thus amounts to an interference with fundamental rights also in relation to persons wishing to commit suicide. The interference is particularly serious considering the fundamental significance that self-determination in decisions about one’s own life carries in relation to personal identity, individuality and integrity.

 

3. The interference is not justified.

 

The interference is not justified. The prohibition of assisted suicide services must be measured against the standard of strict proportionality. A law restricting fundamental rights only satisfies this standard if it has a legitimate purpose, is suitable and necessary for achieving that purpose, and strikes an appropriate balance between the purpose pursued and the resulting restrictions.

 

a) With the prohibition of assisted suicide services, the legislator pursues a legitimate purpose.

aa) The provision serves to protect the individual’s self-determination of their life and hereby to protect life as such.

 

Aiming to protect autonomy and life, the prohibition in § 217 StGB serves to fulfil the state’s duty of protection under constitutional law and thus pursues a legitimate purpose. Under Art. 1(1) second sentence in conjunction with Art. 2(2) first sentence GG, the state has a duty to protect the individual’s autonomy in deciding whether to end their own life and hereby to protect life as such. In discharging this duty of protection, the legislator may not only act to protect personal autonomy against specific and impending dangers arising from the conduct of third parties. It may also pursue, as a legitimate purpose, the aim of preventing assisted suicide from becoming recognised within society as a normal way of ending life. In this regard, the legislator may intervene to counteract developments that potentially create social expectations pressuring individuals in certain situations to take their own life, e.g. based on considerations of usefulness.

 

bb) The basis on which the legislator rests its assumption that the availability of assisted suicide services bears dangers to self-determination is not objectionable under constitutional law.

 

(1)   There are at present no reliable scientific findings on the long-term implications of legalising assisted suicide services.

There are at present no reliable scientific findings on the long-term implications of legalising assisted suicide services. It is therefore sufficient that the legislator was guided by a factually accurate and tenable assessment of the available information and means of evidence.

 

(2) The risk assessment conducted by the legislator satisfies these constitutional standards.

The oral hearing confirmed that it was at least tenable for the legislator to consider the existing practice of assisted suicide services in Germany as being unsuitable for ensuring protection of free will and thus protection of free self-determination in every case. In practice, the assessment of whether a resolution to commit suicide was based on the free will of the person concerned was often limited to plausibility considerations that were not based on comprehensible criteria; notably, assisted suicide organisations were found to have provided suicide assistance to persons with physical or psychological conditions without consulting the affected person’s medical files or ensuring that a medical examination, consultation and information had been provided by a specialised practitioner. Accordingly, it was plausible for the legislator to assume that where suicide assistance is offered as a professionalised service, the focus is largely on assisting persons in actually carrying out the suicide and that the free will and free decision-making of the individual are not therefore sufficiently ensured.

 

Further, the legislator’s assessment is comprehensible in that assisted suicide services could lead to a ‘societal normalisation’ of suicide assistance and that assisted suicide could become recognised as a normal way of ending life, especially for elderly and ill persons, which might create social expectations and pressure endangering personal autonomy. Countries with liberal laws on suicide assistance and assisted dying have experienced a continuous increase in assisted suicide and killing ‘at the request of the victim’ (Tötung auf Verlangen). It may be true that this increase in itself does not necessarily prove societal normalisation or the existence of social pressure endangering autonomy. It can also be explained by greater acceptance within society of suicide and assisted dying, a strengthening of the right to self-determination, or growing awareness that the terms of one’s own death need not invariably be accepted as fate beyond one’s control. Nonetheless, the legislator could tenably assume that in the absence of any legal restriction, professionalised assisted suicide services could put self-determination at risk. In light of rising financial pressure on the long-term care and healthcare systems, this is especially true where healthcare and long-term care services struggle to meet demands; these developments may prompt individuals to fear a loss of self-determination and could thus encourage a decision to commit suicide. Moreover, the legislator’s assessment is consistent with the reasons that typically inform decisions to commit suicide in this manner. As confirmed by domestic and foreign studies, a common motive for seeking suicide assistance is the desire not to burden relatives or third parties.

 

b) As a criminal provision, § 217 StGB is in principle a suitable means for protecting the affected legal interests, since the criminalisation of dangerous acts can at least contribute to achieving the aim of protection.

 

c) There is no need to decide whether the challenged provision is necessary to achieve the legislator’s legitimate aim of ensuring protection, given that the resulting restriction of the right to a self-determined death is in any case not appropriate.

 

aa) A restriction of freedom is only appropriate if the burden imposed on the individual is reasonably proportionate to the benefits arising for the common good.

A restriction of freedom is only appropriate if the burden imposed on the individual is reasonably proportionate to the benefits arising for the common good. The more severely individual freedom is restricted, the weightier the pursued interests of the common good must be. Yet the need to protect the common good becomes all the more pressing, the greater the detriment and dangers that would potentially arise if the exercise of fundamental rights were free of any limitation. Where the legislator’s decision involves serious interferences with fundamental rights, it is subject to a strict standard of review. The fundamental significance attached to self-determination, in particular for protecting personal individuality, identity and integrity in decisions regarding one’s own life, imposes strict limits on the legislator when designing a normative concept of protection in the context of suicide assistance.

 

bb) With the challenged provision criminalising assisted suicide services, the legislator exceeded these limits.

 

(1)   § 217 StGB seeks to protect autonomy and life, which are recognised as high-ranking constitutional interests.

§ 217 StGB seeks to protect autonomy and life, which are recognised as high-ranking constitutional interests. The use of criminal law may, in principle, constitute a legitimate means for protecting these interests. Criminal law serves an indispensable function in fulfilling the state’s duty to establish, safeguard and enforce a rule-based social co-existence by protecting the fundamental values of the community. In certain cases, the duty of protection may indeed require the state to enact legislation designed to reduce even the risk of fundamental rights violations.

 

However, criminal law exceeds the limits of what constitutes a legitimate means for protecting personal autonomy in the decision on ending one’s life where it no longer protects free decisions of the individual but renders such decisions impossible. The exemption of suicide, and of assistance rendered in this regard, from criminal liability reflects the – constitutionally mandated – recognition of individual self-determination; as such, it is not at the legislator’s free disposal. At the heart of the Basic Law’s constitutional order lies a central notion of human beings informed by dignity and the free development of one’s personality through self-determination and personal responsibility. This notion must be the starting point for any normative framework. It follows that the state’s duty to protect self-determination and life can only take precedence over the individual’s freedom where the individual is exposed to influences that endanger the self-determination of their own life. The legal order may counteract these influences through preventive measures and safeguards. Beyond this, however, an individual’s decision to end their life, based on their personal understanding of what constitutes a meaningful existence, must be recognised as an act of autonomous self-determination.

 

Recognising the right to a self-determined death does not therefore bar the legislator from taking measures of general suicide prevention. In particular, the legislator may take measures for expanding and strengthening palliative care in order to curb desires to commit suicide born out of illness. It also has to counter dangers to autonomy and life arising from current and foreseeable living conditions that are capable of influencing the individual’s decision by encouraging them to choose suicide and deterring them from choosing life. Yet the legislator cannot evade this responsibility in the area of social policy by eliminating the constitutionally protected right to self-determination altogether. The individual must still be afforded the freedom to refuse life-sustaining treatments and, based on their personal understanding of a meaningful existence, to carry out a decision to end their own life with the assistance of a third party. Where the protection of life runs counter to the protection of autonomy, it contradicts the central understanding of a community which places human dignity at the core of its order of values and thus commits itself to respecting and protecting the freedom of human personality as the highest value of its Constitution.

 

(2)   The prohibition of assisted suicide services violates constitutional law insofar as it fails to leave sufficient space for the pursuit of autonomous self-determination.

The prohibition of assisted suicide services violates constitutional law insofar as it fails to leave sufficient space for the pursuit of autonomous self-determination. As the law stands, the introduction of the provision criminalising assisted suicide services effectively causes the right to suicide to be largely vitiated. It is true that the prohibition set out in § 217 StGB is limited to assisted suicide services, i.e. a very specific form of suicide assistance. However, the resulting loss of autonomy is disproportionate to the extent that, and as long as, the remaining options available to the individual provide only a theoretical but no actual prospect of self-determination.

 

(a)   The detrimental effects on personal autonomy stemming from § 217 StGB are further aggravated precisely

The detrimental effects on personal autonomy stemming from § 217 StGB are further aggravated precisely because, in many situations, individuals are left with no actual, reliable options other than seeking suicide assistance to carry out a decision to commit suicide. Under a strict interpretation of § 217 StGB, the provision of individual suicide assistance in isolated cases remains exempt from criminal liability; yet this does not sufficiently give effect to self-determination regarding the end of one’s life as required under constitutional law. The legislator’s tacit assumption that options for suicide assistance other than assisted suicide services are actually available fails to consider the legal order as a whole. If the legislator excludes specific ways of exercising freedoms with reference to remaining alternatives, these remaining courses of action must actually be suitable for ensuring effective exercise of the fundamental rights in question. This applies all the more in the context of the right to suicide. In this respect, the individual knowledge of actually being able to act according to one’s own wishes is in itself a crucial element of asserting one’s identity.

 

The fact that the legislator chose not to criminalise all forms of suicide assistance unconditionally does not, by itself, ensure constitutional conformity. Without the availability of assisted suicide services, the individual is largely reliant on the willingness of physicians to provide assistance at least in the form of prescribing the substances necessary to commit suicide. Realistically, such individual willingness on the part of a physician can only be expected in exceptional cases. To date, physicians have shown little willingness to provide suicide assistance and cannot be obligated to do so; the right to a self-determined death does not entitle the individual to request suicide assistance from third parties. The laws and codes governing the medical profession further curb the willingness to provide suicide assistance. The prohibition of suicide assistance from physicians, which has been incorporated into the professional codes of most State Chambers of Physicians (Landesärztekammern), not only makes the effective exercise of individual self-determination contingent upon geographical coincidence but also guides the actions of physicians in practice even where the relevant codes are not considered legally binding. However, access to options for suicide assistance must not depend on physicians being willing to deviate from written law and to disregard it on their own authority by invoking their constitutionally guaranteed freedom. As long as this situation persists, it creates a factual need for assisted suicide services.

 

(b)   Improving palliative care is, by itself, also not suitable to compensate for the disproportionate restriction of individual self-determination.

Improvements in palliative care might rectify existing deficiencies in care services and thus be a suitable means for reducing the number of cases where terminally-ill patients wish to die because of such deficiencies. However, in cases where the decision to commit suicide is taken in free self-determination, improvements in palliative care are not a suitable corrective to compensate the restrictions resulting from the challenged provision. There is no obligation on anyone to make use of palliative care. The decision to end one’s own life also encompasses the decision against existing alternatives and in that regard, too, must be accepted as an act of autonomous self-determination.

 

(c)    The state may also not simply refer the individual to the option of using suicide assistance offered abroad.

The state may also not simply refer the individual to the option of using suicide assistance offered abroad. The state must guarantee the protection of fundamental rights required under Art. 1(3) GG within its own legal order.

 

(3)   Finally, the restriction of individual self-determination resulting from § 217 StGB cannot be justified by considerations of protecting third parties.

Finally, the restriction of individual self-determination resulting from § 217 StGB cannot be justified by considerations of protecting third parties. It is true that, in principle, the individual must accept those restrictions of their constitutionally protected freedom that the legislator, within the limits of what is reasonable (zumutbar) in the relevant circumstances, imposes for the purposes of maintaining and promoting social co-existence. However, the individual autonomy of the person must still be preserved. The aim of protecting third parties – e.g. by seeking to prevent suicide assistance from generating copycat behaviour and prompting others to follow suit – does not justify forcing the individual to accept that their right to suicide is effectively vitiated.

 

4. This assessment under constitutional law is in line with the European Convention on Human Rights and the values enshrined therein, as specified by the European Court of Human Rights.

This assessment under constitutional law is in line with the European Convention on Human Rights and the values enshrined therein, as specified by the European Court of Human Rights.

 

II. Moreover, § 217 StGB violates the fundamental rights of persons and organisations intending to render suicide assistance.

 

Moreover, § 217 StGB violates the fundamental rights of persons and organisations intending to render suicide assistance. Given that it is incompatible with the general right of personality on the part of individuals who have decided, in self-determination, to commit suicide, the prohibition of assisted suicide services violates objective constitutional law; therefore the challenged provision is void also in relation to the persons directly addressed by that provision. The constitutional protection of acts criminalised under § 217 StGB is informed by the functional interconnectedness between, on the one hand, the fundamental rights of persons rendering suicide assistance – in particular Art. 12(1) GG or, subsidiarily, Art. 2(1) GG – and on the other hand the right to a self-determined death. In order to carry out the decision to commit suicide, the individual is not just factually dependent on the willingness of third parties to provide, procure or arrange the opportunity to commit suicide. Third parties must also legally be allowed to act in accordance with their willingness to render suicide assistance. Therefore, the constitutional guarantee of the right to suicide corresponds to equally far-reaching constitutional protection extended to the acts carried out by persons rendering suicide assistance.

 

With the possibility of a prison sentence, § 217 StGB also violates the right to liberty under Art. 2(2) second sentence in conjunction with Art. 104(1) GG on the part of persons rendering suicide assistance who, as natural persons, are the direct addressees of that provision. As the criminalisation of assisted suicide services may also lead to administrative fines being imposed on German assisted suicide associations, it also violates the fundamental right of these organisations under Art. 2(1) GG.

 

III. Due to the violations of the Constitution set out above, § 217 StGB must be declared void. A restrictive interpretation in conformity with the Constitution is not possible, as it would run counter to the legislative intent.

 

Due to the violations of the Constitution set out above, § 217 StGB must be declared void. A restrictive interpretation in conformity with the Constitution is not possible, as it would run counter to the legislative intent.

 

It does not follow that the legislator is completely barred from regulating suicide assistance. But any legislation on this subject must be guided by the notion of humans as intellectual-moral beings capable of pursuing and exercising their freedom in self-determination. In the context of organised suicide assistance, a broad spectrum of options is available to the legislator for ensuring protection of self-determination in decisions regarding one’s own life. These include procedural safeguards such as statutory obligations to provide information or observe waiting periods; requirements to obtain administrative approval, which ensure the reliability of the assisted suicide services offered; as well as the prohibition of particularly dangerous forms of suicide assistance. The legislator may also resort to the use of criminal law in that regard, at least to secure compliance by means of criminal sanctions. The right to suicide does, however, prohibit linking the permissibility of suicide assistance to certain substantive criteria, e.g. by requiring a diagnosis of incurable illness. Nonetheless, different requirements may be set, depending on the relevant circumstances, with regard to establishing that the individual’s resolution to commit suicide is sincere and final. At the same time, sufficient space must remain in practice for the individual to exercise the right to depart this life and, based on their free will and with the support of third parties, to carry out this decision on their own terms. This not only requires legislative coherence in the design of the legal framework applicable to the medical profession and pharmacists but potentially also requires adjustments of the law on controlled substances. This does not preclude the legislator from retaining certain elements of consumer protection and abuse prevention in the area of drugs and controlled substances law and incorporating them into a concept of protection relating to suicide assistance.

 

Regardless, there can never be an obligation, on anyone, to assist in another person’s suicide.

 

End of Document

 

Source: https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2020/bvg20-012.html

 

About 涂云新 (TU Yunxin)

涂云新,男,祖籍四川达州,复旦大学法学院助理教授、法学博士;奥斯陆大学(University of Oslo)国际人权法硕士(LL.M);复旦大学人权研究中心(国家人权教育与培训基地)青年研究员,教育部教育立法基地暨上海教育立法咨询与服务研究基地(复旦大学)青年研究员。Email: chinatu@live.com 电子邮件 Dr. TU Yunxin, Lecturer in Constitutional Law at Fudan University Law School,Shanghai, China (PRC)