The Context of the Judgment: The Court Overturns a Strict Law
On February 26, 2020, the German Constitutional Court delivered a landmark ruling. Until then, "professional" assisted suicide was prohibited by law. This meant that, among other things, doctors or healthcare professionals were punishable if they assisted someone in suicide or, for example, provided medication that led to suicide. Most medical orders in Germany had also included a fundamental prohibition in their deontological rules. This legal provision was quite strict and has been criticized before. A side effect of all this was that people with clear plans for suicide moved to Switzerland. In Switzerland, such assistance is not punishable and is provided by a number of non-profit organisations. A group of doctors, patients and organizations went to the Constitutional Court. They have obtained the annulment of the penal provisions.
The verdict: the Court goes further than our principles on euthanasia
The Court has taken a very clear position that goes beyond the euthanasia discussion that is being conducted in Belgium. The Court also goes beyond the European Court of Human Rights.
The Court assumes what it calls the “Selbstbestimmung” of man. It bases this on Article 2 of the German Constitution. That article states that everyone has the right to the free development of his personality, as long as the rights of others are not violated and the constitutional order or the basic moral principles are not violated. That is all in all a vague text. The Court translates this into “Selbstbestimmung” and gives it a fairly thorough description. For example, the “Selbstbestimmung” includes the right to suicide for everyone. It also means that someone can call in (professional) help for this if they prefer. Making such aid a criminal offence, the Court said, is unconstitutional. The Court recognizes that the legislator can provide for procedures, formalities and possible waiting times, but ruled that the legislator cannot impose substantive restrictions. Restricting this right to assistance to terminally ill people, people who suffer, people with dementia or other categories of people is, according to the Court, contrary to the Constitution. Only rules that reinforce or ensure the “Selbstbestimmung” are acceptable.
Impact of the verdict: every person decides for himself how he or she sees his or her end of life
In doing so, the Court goes further than what has been suggested to date by the European Court and by various legislators (such as in Belgium). The European Court has accepted in the Perry case that the legislator CAN provide that providing professional assistance in the event of suicide (it concerned someone who suffered from a terminal muscle disease) is not punishable, but that the person concerned could not demand it. The reasoning of the German Court therefore contradicts that. The legislators in Belgium and the Netherlands have linked substantive criteria to euthanasia. The German Court is of the opinion that this is not constitutionally acceptable for assisted suicide.
The German Constitution is a bit more explicit about the freedom of every person to decide his own destiny. But that is not a fundamental difference with our Constitution.
The judgment is about assisted suicide ("Beihilfe zum Suizid") and not about euthanasia ("Tötung auf Verlangen"). Extending the Court's conclusion to euthanasia must therefore be done with caution. However, the Court is very clear when it states that it is not for the legislator to determine the material conditions in which assisted suicide is or is not allowed: the right to assistance is not reserved for seriously ill people or people living in a certain stage of life or disease. It is up to each person to decide for themselves. The legislator must not meddle with the causes or the motives. Only legal provisions that help to ensure freedom of decision are acceptable. If we apply this reasoning to our euthanasia legislation, we arrive at a fundamentally different law.
Fodder for new debates: towards complete self-determination?
The German Court has issued an important new principle. The Court is highly regarded and is recognized by everyone as a Court that does not happen overnight. The judgment is 96 pages long and contains references to the laws of five countries. I wouldn't be surprised if this ruling was gradually copied in other countries or in the European Court of Human Rights. Or at least will provide additional discussion material.