The European Court of Human Rights has established a right to assisted suicide under Article 8 of the European Convention on Human Rights, which protects private life. However, its legal basis for this right is questionable. While Article 2, the right to life, does not encompass a right to die, the Court has increasingly ignored Article 2 in assisted suicide cases. It has shifted the focus from the objective right to life to a subjective concept of quality of life and personal autonomy. This has diminished the view of life as an inalienable human right and supreme value, replacing it with a concept of human dignity based on self-determined ideals of identity. Critics argue the Court's use of human dignity as an interpretive tool is contestable given

1. 1
With reference to academic opinion and relevant case law of the European Court of Human
Rights, critically assess the position of the European Court of Human Rights relating to
euthanasia and assisted suicide.
Student Number: 650042321
Module: The European Convention on Human Rights
Word Count: 3824 (Within the 5% Limit)

2. 2
With reference to academic opinion and relevant case law of the European Court of Human Rights,
critically assess the position of the European Court of Human Rights relating to euthanasia and
assisted suicide.
Dr Puppinck and Dr Houge observe that: “[T]he case law of the European Court of Human Rights
[ECtHR, the Court] clearly leads to the acceptance of a right to assisted suicide [A.S].”1
However,
Western States have traditionally disapproved of the practice2
and implemented legislation whereby
the acts are criminal offences;3
legally condoned A.S is a recent innovation of Western society.4
Dupre notes: “The time and timing of death have been profoundly transformed […] prompting
discussion on euthanasia and assisted suicide.”5
Regarding the Court’s position on A.S and
euthanasia, three observations have been deduced. Firstly, Article.2 of the European Convention on
Human Rights (ECHR, the Convention),6
the ‘Right to Life,’ does not encompass a ‘Right to Die’.7
Secondly, within Article.8, the ‘Right to Respect for Private Life’, the Court has established a ‘right to
A.S’.8
Thirdly, the Court affords member States a wide margin of appreciation (MofA) when
restricting the ‘right to A.S’ within their jurisdiction.9
In considering these aspects, the Court’s
position regarding a ‘right to A.S’ is held to be unsound. However, it is first appropriate to distinguish
between A.S and euthanasia.
1
Gregor Puppinck and Claire de La Houge, “The ‘Right’ to Assisted Suicide in the case law of the European
Court of Human Rights’ (2014) Vol.18(7-8) The International Journal of Human Rights, 735, 741
2
Washington v Glucksberg, 521 U.S. 702, 710-12 (1997); Emily Wada, “A Pretty Picture: The Margin of
Appreciation and the Right to Assisted Suicide” (2005) Vol.27 Loyola of Los Angeles International and
Comparative Law Review 275
3
Rustin-Petru CIASC, “Euthanasia, National and International Perspectives” (2013) Vol.9(2) Acta Universitatis
Danubius Juridica, 41
4
Wada (n-2) 283
5
Catherine Dupre, The Age of Dignity, (Hart Publishing, 2015) 146
6
Convention for the Protection of Human Rights and Fundamental Freedoms 1950
7
Wada (n-2) 275; JMT Labuschagne, “The European Court of Human Rights and the right to assisted suicide in
international human rights law.” (2004) Vol.17(1) South African Journal of Criminal Justice, 87; Puppinck (n-1)
735
8
Puppinck (n-1) 741
9
Wada (n-3) 275; Carmen Draghici, “The blanket ban on assisted suicide: between moral paternalism and
utilitarian justice” (2015) European Human Right Law Review 286

3. 3
Defining Assisted Suicide and Euthanasia
A.S involves providing the applicant with the means of committing suicide however, the applicant
performs the final, death inducing, act.10
Conversely, in voluntary euthanasia11
the assisting person
commits the final act at the victim’s request.12
Despite this distinction, the ECtHR exclusively
mentions A.S even in situations where the candidate to suicide is unable to execute the lethal act
themselves13
possibly because the two acts are not always easily distinguishable.14
Notably, in Pretty
v United Kingdom,15
despite the applicant being completely paralysed and unable to perform the
lethal act herself, the Court exclusively referred to A.S. Concurrently, at a domestic level, irrespective
of whether States permit16
or ban17
euthanasia, the action also includes A.S.18
Indeed, only
Switzerland applies a distinction in law.19
Accordingly, the two practised are referred to
interchangeably.
10
For instance, self-administering a lethal substance.
Puppinck (n-1) 739; Amelia Mihaela Diaconescu, “Euthanasia” (2012) Vol4(2) Contemporary Readings in Law
and Social Justice, 474
11
Compared to non-voluntary and involuntary euthanasia. Non-voluntary euthanasia involves an individual
ending the life of a person who cannot choose by himself between living and dying. Involuntary euthanasia is
performed on a person who is able to provide informed consent, but does not, because he was not asked. For
instance, causing death by administering an ever increasing dose by the doctor who does not intend to cause
death, but to alleviate pain, but which could produce (involuntarily) the patient’s death. Diaconescu (n-10) 474
J. Lucy Pridgeon, “Euthanasia Legislation in the European Union: is a Universal Law Possible?” (2006) Vol.2(1)
Hans Law Review, 45,46
Gordijn, Bert, Ben Crul and Zbigniew Zylicz ‘Euthanasia and physician-assisted suicide’, in Ten Have, H. and
Clark, D (eds.), The Ethics of Palliative Care: European perspectives (Buckingham, Open University Press,
2002), 182.
12
Puppinck (n-1) 739
13
ibid 741
14
ibid 750
15
Pretty v United Kingdom (GC), Ap.234/02, 29th
April 2002
16
E.g. Belgium. See: Pridgeon (n-11) 45
17
E.g. Germany. See: ibid
18
Puppinck (n-1) 739
19
ibid

4. 4
The ‘Right to Die’: Considering Article.2 and Article.8
In Pretty20
the Court held that the ‘right to life’ does not encompass a negative aspect; a right to
die.21
However, the ruling fails to consider the ‘quality of life.’22
Justice Sachs perceives that: “The
right to life without a basis quality of life […] is senseless.”23
Accordingly, the Court failed to properly
address the interaction between the ‘right to life’ and the “claim to the basic quality of life.”24
Labuschagne notes:
“The untenable and vicious effect of these decisions, whatever the technical and
interpretational arguments may be, is that a cruel and senseless dying process, which forms
part of the living process since the individual is still alive when dying, is sanctioned by legal
rules.”25
However, Article.2 is:
“[A] provision which not only safeguards the right to life but sets out the circumstances when
the deprivation of life may be justified. Article 2 ranks as one of the most fundamental
provisions of the convention...”26
Therefore, the Court’s position is commendable for upholding the ‘sanctity of life.’27
Furthermore,
Article.2 obliges the State to not only refrain from intentionally and unlawfully depriving its subjects
of life, but to also take appropriate steps to safeguard their lives.28
States have notably accomplished
20
Pretty v United Kingdom (GC), Ap.234/02, 29th
April 2002
21
ibid Para 39
22
Labuschagne (n-7) 93
23
Justice Sachs in S v Makwanyane and Another (CCT3/94) [1995] ZACC 3 Para 353
24
Labuschagne(n-7) 90-91
25
ibid 93
26
McCann v UK (1995) 21 EHRR 97 Para 146-7. Author emphasis added
27
See Puppinck (n-1)
28
LCB v UK [1998] ECHR 108
See also Osman v UK [1998] ECHR 101 and Keenan v UK 2001 Ap.27229/95, 3rd
April 2001 Para 91-92

5. 5
this by “prohibiting murder and [A.S].”29
Critically, Article.2(2) exhaustively lists the exceptions to the
right to life that are tolerated30
and Article.15(2) further states that:
“No derogation from Article 2, except in respect of deaths resulting from lawful acts of war,
[…] shall be made under this provision.”
Significantly, neither Article.2(2) or Article.15(5) provides that the consent of an individual or their
quality of life are justifications for derogation.31
Accordingly, the Court is correct in its assertion that:
“[Article.2] is unconcerned with issues to do with the quality of living [….] Article 2 cannot,
[…], be interpreted as conferring […] a right to die...”32
However, the Court has expanded the scope of Article.8 and obliged States to adopt a liberal
position on A.S.33
Accordingly, attention now turns towards its development and interaction with
Article.2.
As Houge observes:
“The recognition of the right to A.S was obtained [not by] the substantive right to [A.S] but
the procedural right to know if one is able to legally exercise this right.”34
In Hass v Switzerland,35
Switzerland was obliged “to establish a procedure capable of ensuring that a
decision to end one’s life does indeed correspond with the free wish of the individual concerned.”36
Subsequently in Koch v Germany,37
the State was obliged to establish an effective framework to rule
29
Puppinck (n-1) 757
30
Article.2(2) “Deprivation of life shall not be regarded as inflicted in contravention of this article when it
results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection”
31
ibid
32
Pretty v United Kingdom (n-15) Para 39
33
Puppinck (n-1) 750
34
ibid. Author emphasis added.
35
Haas v Switzerland, Ap.31322/07, 20 January 2011
36
ibid Para 58
37
Koch v Germany, Ap.497/09, 19 July 2012

6. 6
on the merits of decisions refusing A.S.38
Finally, in Gross v Switzerland,39
Switzerland was held to be
obligated to establish a legal framework permitting individuals to claim their right to A.S.40
However,
the legal basis of these obligations is unclear.41
A Conventional procedural obligation is an accessory of a principal material right.42
Therefore, the
Court’s assertions imply the existence of a material right. Such an obligation derives either directly
from the Convention, an autonomous Convectional obligation, and/or domestic law (provided it
enters the scope of the Convention).43
As there is no domestic ‘right to A.S’ in the States concerned,
one can conclude that the procedural obligation derives from an autonomous Convention right.
However, the Court fails to affirm the existence of this right in either Haas, Koch or Gross.44
Rather, it
references Schneider v Germany45
stressing that:
“[Article.8] may encompass a right to judicial review even in a case which the substantive
right in question had yet to be established.”46
However, in Schneider a relevant domestic right already existed while in Koch the legislator had
intentionally omitted the right.47
Therefore, the Court’s reference is inappropriate.48
The Court has
failed to dispel the doubt as to the actual existence of an independent Convention right. Therefore,
“the legal basis [of the] right to A.S is dubious.”49
Accordingly, the Court’s reasoning in finding a right
to A.S under Article.8 needs to be addressed.
38
ibid Para 71
39
Gross v Switzerland, Ap. 67810/10, 14 May 2013
40
Puppinck (n-1) 751
41
ibid
42
Tysiac v Poland Ap.5410/03 20 March 2007 para 113; A procedural right is not an independent right but
rather a right requiring a State to guarantee the means of access to enjoyment of a right.
43
Puppinck (n-1) 751
44
ibid
45
Schneider v Germany Ap.17080/07 15 September 2011 Para 100. The Court noted the possibility of
establishing a procedural obligation without first having recognised a principal material right
46
Koch v Germany (n-37) Para 53
47
Puppinck (n-1) 753
48
ibid
49
ibid 758 “the legal basis on which the Court has [built] the right to [A.S] is dubious.”

7. 7
Article.8 and a ‘Right to Assisted Suicide’
Since Pretty the Court has increasingly ignored Article.2.50
In Hass, it was considered only in terms of
its procedural obligation to verify the subjective will of the suicide candidate51
to prevent:
“an individual from taking his or her own life if the decision has not been taken freely and
with the full understanding of what is involved”52
[ensuring the] “decision [..]correspond[s]
with the free wish of the individual concerned.”53
Thus, the obligation to ‘guarantee and respect the right to life’ under Article.2 is not realised by the
‘mere’ respect of life but by respecting the autonomy of the individual. Moreover, in Koch and Gross,
whilst the Court recalled the sacredness of life it was presented in a negative formulation, the
‘quality of life’ taking ‘priority’:
“Without in any way negating the principle of the 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.”54
Hence, the principal consideration regarding A.S is the subjective right to a ‘quality of life’ rather
than the objective ‘right to life’; the autonomy of an individual being both the basis and the
condition of the ‘right to A.S’.55
Critically, the objectivity of Article.2 has been absorbed into the
subjectivity of Article.856
thereby diminishing the assertion that Article.2 “constitutes an inalienable
attribute of the human person and that is form[s] the supreme value in the scale of human rights.” 57
50
ibid 754
51
ibid 750-53
52
Haas v Switzerland (n-35) Para 54
53
ibid Para 58
54
Pretty v United Kingdom (n-15) Para 65; See Koch v Germany (n-37) Para 51 and Gross v Switzerland (n-39)
Para 58
55
See: Puppinck (n-1) 753-759
56
ibid 758
57
Pretty v United Kingdom (n-15) Para 65

8. 8
The ‘supreme value’ is now personal autonomy. The Court has established this notion of ‘quality of
life’ on an individualistic conception of human dignity (H.D):58
“[I]n an era of growing medical sophistication, 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 ideals of self and personal identity.” 59
Therefore, one’s autonomy is constrained if forced to live in a state that conflicts with one’s such
“ideals.”60
Accordingly, these ‘ideals’ are individualistic resulting in a subjective measurement of the
quality of life.61
Consequently, this concept of H.D is not inherent but self-determined.62
Therefore,
in Koch and Gross the invalidity of one applicant and the old age of the other was held to impeded
the quality of their lives. As Houge reasons: “their dignity as human beings could therefore occur
preferentially choosing to wave existence rather than suffer a decline. The value of life is thus bound
to its quality.”63
The shift from life to the ‘quality of life’, leads to the demands for self-determination
and finally to a right to the quality of death as falling within the Scope of Article.8.64
However, the
Court’s application of H.D and in particular a ‘subjective’ H.D is contestable.
Despite its notable presence “in terms of quantity and quality”65
and as a “foundation [in] the legal
reasoning of the Strasbourg Court in its rulings”66
the ECHR makes no reference to H.D.67
Accordingly, its use as an interpretive tool is questionable.68
58
Puppinck (n-1) 755
59
Gross v Switzerland (n-39) Para 58
60
Puppinck (n-1) 755
61
ibid
62
ibid
63
ibid
64
ibid
65
Dupre (n-5) 85
66
Jean Paul Costa, “Human Dignity in the Jurisprudence of the European Court of Human Rights” in
Christopher McCrudden (eds) Understanding Human Dignity (Oxford University Press) 393
67
Diaconescu, (n-10) 481; Costa (ibid) 393
68
Costa (n-66) 393

9. 9
Given that the Convention is inspired by, the Universal Declaration of Human Rights (UDHR),69
which
is founded on the “recognition of the inherent dignity of all members of the human family” and
speaks of the “inherent dignity of the person,”70
its absence is arguably the deliberate act of its
drafters to exclude it as an interpretative tool.71
Furthermore, Michael Rosen72
and John Harris73
have attacked the concept as “comprehensively vague”, with modern conceptions inheriting several
distinct strands of meaning74
thereby obscuring the Convention’s interpretation. McCrudden further
notes: “[F]or some, it is only a ‘smoke screen’ to hide the emptiness or disagreement on which human
rights are funded.”75
Accordingly, H.D should be excluded from the interpretation of the
Convention.76
However, in SW v U.K.77
the Court formulated its commitment to protecting H.D as being the
“essence” of the ECHR78
and has subsequently referred to its “inviolability” to give greater normative
strength to H.D over even Article.2.79
Furthermore, Daly considers the inherency of H.D within all
human rights,80
Costa submits that notions of H.D were in the drafters’ minds81
and Dupree applauds
how:
69
The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United Nations General
Assembly on 10 December 1948; Puppinck (n-1) 755
70
Costa (n-66) 394
71
ibid 393
72
Michael Rosen, Dignity: Its History and Meaning (Harvard University Press 2012)
73
J.Harris, Is Cloning an Attack on Human Dignity? (Nature 1997); Harris, Clones, Genes and Immorality (Oxford
University Press 1998)
74
J.Harris, Clones, Genes and Immorality (Oxford University Press 1998) 31; David Albert Jones, “Is Dignity
Language Useful in Bioethical Discussion of Assisted Suicide and Abortion?” in Christopher McCrudden (eds)
Understanding Human Dignity (Oxford University Press) 525
75
Christopher McCrudden, “Human Dignity and Judicial Interpretation of Human Rights.” (2008) Vol.19(4) The
European Journal of International Law, 22
76
Costa, (n-66); Puppinck (n-1) 756-7
77
SW v The United Kingdom 1995 ECHR 52
78
SW v The United Kingdom (ibid) Para 101; See Dupre (n-5) 174
79
See Dupre (n-5) 174
80
Erin Daly, Dignity Rights: Courts, Constitutions and the Worth of the Human Person (University of
Pennsylvania Press, 2013); Dupre (n-5) 85: “[A]lmost every aspect of human interaction and identity [can] be, in
one way or another, translated and adjudicated in terms of human dignity.”
81
Costa (n-66) 394:“[E]specially because the very establishment of the Council of Europe in 1949 and the
elaboration of the Convention […] The founding fathers of the European system of protection of right and
freedoms shared the same philosophy as the authors of the Universal Declaration of Human Rights.”

10. 10
“[R]eliance on human dignity makes discursive space to consider alternative and new ways of
interpreting the law, and […] therefore, provided judges with the key to unlock a difficult
situation and open un a new path in human rights protection.”82
Furthermore, Meyer asserts that the potential variations in meaning do not result in equivocation
but are “a family of concepts clustered around the practice of moral evaluation.”83
Moreover, Dupre
praises the concept’s flexibility and its use when resolving complex, present day situations:
“In practice, [H.D’s] transformative function arguably explains why it has been a key judicial
instrument for departing from established case law and precedent, opening up a new path in
an unchartered territory.” 84
Overall, reference to H.D has played an instrumental role in expanding the Convention’s scope of
protection.85
As Costa concludes, “the concept of human dignity in the Court’s jurisprudence
expresses a deliberate intention of building a bridge between the universal instruments and the silent
European text, filling the vacuum created by the authors of the Convention.”86
Therefore, H.D should
not be excluded from the Court’s interpretation of the Convention. The issue now lies in its
appropriate application.
According to Dwarkin: “[H.D] supposes that there are ways of treating a man that are inconsistent
with recognising him as a full member of the human community, and holds that such treatment is
profoundly unjust.”87
Regarding A.S:
82
Dupre (n-5) 159
83
M. Meyer, “The Simple Dignity of Sentient Life: Speciesism and Human Dignity” (2009) Vol.32(2) Journal of
Social Philosophy 223, 240.
84
Dupre (n-5) 271-2
85
See for example: SW v The United Kingdom (n-77); Keenen v UK [2001] ECHR 239; Rasnstev v Cyprus and the
Russian Federation App.25965/04 07 January 2010; Dordevic v Coratia [2012] ECHR 1640, Goodwin and I v UK
Ap. 28957/95 11 July 2002.
86
Costa (n-66) 401
87
Ronald Dwarkin, Taking Rights Seriously (Harvard University Press, 1978) 198

11. 11
“[H.D] has been in these debates, prompting those who want to maintain a ‘natural timing’
of death and dying, and those who want to make use of their last opportunity to be free and
control their life by controlling their death too.”88
According to Diaconescu: “[H.D] is based on the human being’s right to dignity and the right and
respect for his or her autonomy, self-determination of the subject with regard to his or her own
body.”89
Therefore, in adopting a ‘subjective’ perception of H.D, the Court’s position can be praised
as liberating those who no longer wish to endure life:
“If a person [suffering from a terminal illness or extreme disability] does not have access to
assisted suicide, then he or she is forced to endure the indignity of what is considered a
subhuman condition of life”90
However, proponents of A.S have generally restricted their efforts to “those suffering from terminal
and/or disabling conditions.”91
Yet, in Gross the applicant’s old age, as opposed to invalidity in Koch,
was viewed as interfering with her ‘quality of life.’92
Accordingly, the Court’s use of an individualistic
perception of H.D is perhaps a step too far.93
Furthermore, the Court’s adoption of a subjective,
rather than inherent, notion of H.D is contestable. As noted by Gatterer, an ‘inherent’ dignity is not
subjective94
and therefore, the Court is not adhering to same dignity as envisioned in the UDHR and
which inspired the ECHR.95
Arguably:
88
Dupre (n-5) 146
89
Diaconescu (n-10) 477
90
David Albert Jones. “Is Dignity Language Useful in Bioethical Discussion of Assisted Suicide and Abortion?” in
Christopher McCrudden (eds) Understanding Human Dignity (Oxford University Press) 525, 530-31
91
ibid
92
See Puppinck (n-1)
93
However, see Ketreb v France Ap.38447/09 19th
July 2012 where the Court considered that being young and
healthy prevented Mr Ketreb’s desire to die from being accepted and instead reiterated the State’s obligation
to “take necessary measures to protect the lives of those within its jurisdiction.”
94
Edeltraud Gatterer, Doc. 8421, Protection of the human rights and dignity in the terminally ill and dying,
Report from Social, Health and Family Affairs Committee, 21/05/1999. This report led to the Parliamentary
Assembly of the Council of Europe Recommendation 1418 (1999) which affirmed that the right to life of the
sick and dying must be guaranteed even when they express the desire to die.
95
Puppinck (n-1)755

12. 12
“in substituting the ‘inherent dignity’ for a relative dignity […] the Court radically modified
the ontological foundations of the Convention, that of universal to particular. The Court
removes from rights their objectivity by rendering them subjective, and therefore relevant to
their subject. [Therefore], the measure of human rights is no longer the human, but each
individual.”96
Furthermore, the Court’s position arguably fails to respect the dignity of each human life.97
This
‘Dignity as Life’ concept holds that killing contradicts the intrinsic dignity of human existence both in
respect of life itself and what life makes possible all individuals.98
Kant, for example, considers
suicide as the failure to respect the worth or dignity of human life in one’s own case.99
Accordingly,
the Court’s position directly contradicts these views. Additionally, disability rights movements
caution that:
“The desire for euthanasia is inseparable from the fear of dependence and loss of control, of
incontinence and dementia, in short, from the fear of disability. While this desire is expressed
as a wish ‘to die with dignity’, it implies that living in certain conditions is, per se,
indignity.”100
Therefore, the very act of judging a life with an impairment as being ‘undignified’ and therefore, “a
life unworthy to be lived”101
is not only discriminatory but humiliating towards those who live with
an impairment.102
Arguably, the Court’s position actually debases the very individuals it seeks to
liberate.
96
ibid 756
97
Jones (n-90) 529
98
ibid
99
Immanuel Kant, Groundwork for the Metaphysics of Morals (2ND
Revised Edition 1785, Translated by Mary J.
Gregor and Jens Timmermann, Cambridge Texts in the History of Philosophy, 2012) 54, 67; Jones. (n-90) 530
100
Jones. (n-90) 531; See organisations “Not Dead Yet” and “Not Dead Yet UK”, a national, grassroots disability
rights movement that opposes legalization of assisted suicide and euthanasia as deadly forms of
discrimination. <http://notdeadyet.org/about> accessed 17/04/2016
<http://notdeadyetuk.org/> accessed 17/04/2016
101
Jones (n-90) 538
102
ibid

13. 13
Overall, whilst opinions on the Court’s position are divided, “[H.D’s] role is […] to guide judges as
they venture into new territories.”103
Society’s understanding of death and dignity is evolving. As
such, the application of H.D within the Convention must evolve too, even if contentious.104
Nevertheless, the Court’s assertion of a ‘right to A.S’ is confronted with a further hurdle.
Article.2 does not contain a negative right to die and its exceptions interpreted restrictively.
Furthermore, Article.17 states that:
“Nothing in this Convention may be interpreted as implying […] any right to engage in any
activity or perform any act aimed at the destruction on any of the rights and freedoms set
forth herein or at their limitation to a greater extent than is provided for in the Convention.”
Therefore, Aritcle.8 cannot be interpreted as implying a new right that aims at the destruction of
Article.2.105
Ultimately, even when jurisprudentially absorbed in Article.8 the wording of Article.2
remains “no one shall be deprived on their life intentionally” and therefore, cannot be tolerated.
Despite adopting a ‘subjective’ H.D to broaden the scope of Article.8 and asserting that a ‘right to
A.S’ does not “[negate] the principle of the sanctity of life”106
one cannot accept the position of the
Court. However, “What if Article.2 […] also meant the right to live with dignity until, and including
the very end of one’s life, and not just the sanctity of life.”107
Overall, the issue is unresolved and the
Court’s position is contestable.
Nevertheless, States must guarantee “access to the effective enjoyment of the right”108
or justify its
restriction.109
This is the final aspect of the Court’s positon to be discussed.
103
Dupre (n-5) 159
104
ibid
105
Puppinck (n-1) 753-759
106
Pretty v United Kingdom (n-15) Para 65; See Koch v Germany (n-37) Para 51 and Gross v Switzerland (n-39)
Para 58; Puppinck (n-1) 735
107
Dupre (n-5) 159
108
Puppinck (n-1) 751
109
Airey v Ireland Apl. 6289/73 9 October 1979 para 24

14. 14
Controlling the ‘Right to Assisted Suicide’: A State’s Margin of Appreciation
The MofA is a “core principle controlling the ECtHR”.110
It is the “degree of discretion” afforded to
States that is invoked when there is “difficulty in identifying uniform European conceptions to the
extent of rights restrictions”111
; the wider the MofA the greater the level of discretion afforded.112
A
lack of consensus suggests to the Court that the matter is likely best left to individual states:113
“[T]he absence of a consensus is probably a decisive factor in finding that there is a wide
margin of appreciation.” 114
Regarding A.S the Court considers that:
“State Parties to the Convention are far from reaching a consensus […], which points towards
a considerable margin of appreciation.” 115
On the one hand, a wide MofA is warranted. While “Switzerland, Belgium and the Netherlands each
have some form of permitted A.S”116
they nevertheless, approach its regulation and accessibility
differently.117
Likewise, “although there is a strong and deeply rooted consensus against the legality
of assisted suicide, each country […] deals with the issue differently, or chooses not to address it at
all.”118
Furthermore, as Pridgeon notes, “[M]any states are divided internally on whether or not such
110
Howard Charles Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights
Jurisprudence (Springer Publishers 1996) 13
111
Wada (n-2) 275
112
Karen Reid, A Practitioner’s Guide to the European Convention on Human Rights (Sweet and Maxwell 1998)
33
113
Ian Cameron and Maja Kirilova Eriksson, An Introduction to the European Convention on Human Rights
(Lustus Förlag 1993) 45 and 74; Wada (n-2) 275
114
Cameron (n-113) 72-73
115
Koch v Germany (n-37) Para 70
116
Derek Huphrey, Assisted Suicide Laws Around the World Last updated October 2015 available at:
http://www.assistedsuicide.org/suicide_laws.html
117
ibid
118
Wada (n-2) 287

15. 15
procedures should be legalised.”119
Therefore, owing to the lack of consensus the Court correctly
affords a wide MofA on the issue.120
On the other hand, the Court’s position can be criticised. As acknowledged by the Parliamentary
Assembly of the Council of Europe in 1999121
and again in 2012,122
a broad consensus exists in the
prohibition of A.S.123
Questionably, the Court, omitting both documents, instead finds a lack of
consensus as to its legalisation.124
Therefore, States must now justify restriction of the ‘right to A.S’
under Article.8(2) as being:
“[i]n accordance with the law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of the country, for the prevention
of disorder or crime, for the protection of health or morals, or for the protection of the rights
and freedoms of others.”125
Article.8(2) is considered “in accordance with the nature of the issues and the importance of the
interests at stake.”126
One such interest is “the risk of abuse inherent in a system that facilitates
access to assisted suicide.”127
Regarding the U.K.’s absolute prohibition of A.S the Court observes
that:
“The more serious the harm involved the more heavily will weigh in the balance
considerations of public health and safety against the countervailing principle of public
autonomy. The law […] was designed to safeguard life by protecting the weak and vulnerable
[…] it is the vulnerability of the class which provides the rational for the law in question. It is
119
Pridgeon (n-11) 45
120
Cameron (n-113) 72-73
121
See Recommendation 1418 (1999) of the Parliamentary Assembly of the Council of Europe.
122
See Resolution 1859 (2012) of the Parliamentary Assembly of the Council of Europe.
123
See Resolution 1859 (2012) of the Parliamentary Assembly of the Council of Europe.
124
Puppinck (n-1) 760
125
European Convention on Human Rights 1950 Article.8(2)
126
Labuschagne (n-7) 96
127
Haas v Switzerland (n-35) Para 58

16. 16
primarily for States to assess the risk and the likely incidence of abuse [if] exceptions were
created.”128
Therefore, the U.K.’s legislative interference with Article.8 is considered proportionate to the aim
pursued129
and within its MofA.130
Indeed, instances of abuse have been reported in Belgium,
Switzerland and the Netherlands.131
Accordingly: “One individual’s ‘fundamental right to a dignified
life and a dignified death should not outweigh the risk of many lives”132
and the Court’s position is
warranted.
However, the weight afforded to this ‘fear of abuse’ is contestable. In the U.K. domestic case
Nicklinson v Ministry of Justice,133
Lady Hale’s dissenting opinion criticised the UK’s ‘blanket ban’134
on A.S:
“It would not be beyond the wit of the legal [and medical] system to devise a process for
identifying these people […] It fails to strike a fair balance between the rights of those who
have freely chosen to commit suicide but are unable to do so without some assistance and
the interests of the community as a whole.”135
From this perspective, the Court has afforded the State too much discretion. However, Lord
Neuberger, considers it: “impossible, at least on present material, to say with confidence in advance
that any such scheme could satisfactorily and appropriately be fashioned.”136
Therefore, the
potential for abuse should remain a critical factor when considering Article.8(2).
128
Pretty v United Kingdom (n-15) Para 74. Author emphasis added
129
The protection of individuals who would be vulnerable to abuse should A.S be permitted.
130
Pretty v United Kingdom (n-15) Para 74-78; See Draghici (n-9) 289
131
Final observations of the UN Human Rights Committee on the reports presented by the Netherlands, 25
August 2009, CCPR/C/NLD/CO/4 para 7; See also Puppinck (n-1) 739
132
Wada (n-2) 283
133
Nicklinson v Ministry of Justice [2014] UKSC 38
134
See: Draghici (n-9) 286
135
Nicklinson v Ministry of Justice (n-133) Para 314 and 317
136
ibid Para 186 and 188

17. 17
Nevertheless, the Court’s acceptance of ‘blanket bans’ is further disputed. Dr Draghici has observed
how many other ‘blanket bans’ have been found incompatible with human-right guarantees
including:137
irreducible life sentences;138
the prohibition of prisoners’ right to vote;139
and
prisoners’ lack of access to assisted reproductive facilities.140
Criticised as inflexible, they fail to take
into account the individual circumstances of an applicant and therefore, cannot be considered
proportionate to the legitimate aim pursued.141
Overall:
“The underlying tenant is transferable to [A.S.]; the law must be capable of responding fairly
to different individual circumstances, and public interest consideration cannot remove the
need to assess each case on its own merits.”142
Accordingly, A.S ‘blanket bans’ should be prohibited. However, a greater European consensus
existed regarding other bans thus enabling the Court to reduce the States’ MofA. Consequently,
‘blanket bans’ are permissible when there is a lack of consensus. Under this reasoning, the Court’s
acceptance of the UK’s A.S. ‘blanket ban’ is justified.
Finally, Lady Hale holds the U.K.’s failure to make allowances for exceptional cases, not its ‘blanket
ban’, as breaching Article.8: “It seems to me that […], the prohibition is justified. It is the lack of any
exception to meet the particular circumstances of the sorts of cases before us that is
incompatible.”143
Moreover, whilst “interference is necessary to prevent abuse to the detriment of
vulnerable people […] the assumption that a mentally competent, but bodily disabled, individual is to
be treated as a vulnerable person, whose personal autonomy must be restricted in the name of
137
Draghici (n-9) 286
138
Vinter v United Kingdom [2012] ECHR 61
139
See: http://www.echr.coe.int/Documents/FS_Prisoners_vote_ENG.pdf
Firth and Others v United Kingdom [2014] ECHR 874; McHugh and Others v United Kingdom Ap.51987/08 10
February 2015
140
Draghici (n-9) 293
141
ibid
142
ibid 292-293
143
Nicklinson v Ministry of Justice (n-133) Para 186

18. 18
protecting them, arguably amounts to moral paternalism.”144
In the U.K. suicide is legal yet,145
individuals who are physically unable to take charge of their bodies and perform the necessary
actions are prevented from its realisation. Thus the law discriminates against them. In Thlimmenos v
Greece146
the Court accepted Article.14147
as also covering reverse discrimination; treating
individuals whose situations are significantly different in the same way.148
However, having regard to
the State’s MofA “in assessing whether and to what extent differences in otherwise similar situations
justify a different treatment,”149
the Court considers that:
“[C]ogent reasons exist […] for not […] distinguish[ing] between those who are able and
those who are unable to commit suicide unaided. The borderline between the two categories
will often be very a very fine one and to seek to build into new law an exception […] would
seriously undermine protection of life.”150
Alternatively, as per Dickson v U.K.:151
“the possibility of justifying the restriction on applicants’
Convention rights by the minimal number of persons adversely affected is unacceptable.”152
Nevertheless, reiterating Lord Neuberger’s position,: “The most persuasive case [is that] those
capable of forming a free and informed decision to commit suicide and distinguish them from those
who might be vulnerable; [However] it is impossible […] to say […] that any such scheme could
satisfactorily and appropriately be fashioned.”153
The fear of abuse remains paramount.
144
Draghici (n-9) 296
145
The Suicide Act 1961 Section.1:
“Suicide to cease to be a crime.
The rule of law whereby it is a crime for a person to commit suicide is hereby abrogated”
146
Thlimmenos v Greece (2001) Ap.34369/97 31 E.H.R.R.
147
Article.14: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other status.”
148
Thlimmenos v Greece (n-146) Para 411
149
Pretty v United Kingdom (n-15) Para 89
150
Pretty v United Kingdom (n-15) Para 89
151
Dickson v United Kingdom (2007) 44 E.H.R.R 21
152
ibid
153
Nicklinson v Ministry of Justice (n-133)Para 186 and 188

19. 19
Overall, ‘blanket bans’ fail to consider the induvial circumstances of a case and are discriminatory.
However, without expunging fears of abuse or establishing a consensus on the issue, the Court
correctly asserts a wide MofA and permits States to implement “the safer- but certain to generate
injustice- blanket prohibition.”154
However, owing to the questionable foundations upon which the
‘right to A.S’ has been developed, the overall position of the Court is problematic. The only thing
clear about the Court’s ‘right to A.S’ is its legal ambiguity.
154
Draghici (n-9) 297

20. 20
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