Euthanasie-Urteil des Ungarischen Verfassungsgerichts 2003
The Hungarian Constitutional Court's decision on euthanasia
Physician assisted suicide / Euthanasia - Passive and active euthanasia - Right to life and
human dignity - Autonomy / Right to self-determination - Petition binding on the Court
In late April, 2003 the Constitutional Court handed down its judgment per Chief
Justice János Németh on physician-assisted suicide (euthanasia) [22/2003. (IV. 28.) AB
decision]. Although the Constitutional Court did not find active euthanasia per se
unconstitutional, a unanimous Court rejected the claim for active euthanasia. Furthermore, a
divided Court also rejected the challenge concerning the provisions on passive euthanasia.
The decision of the Court was taken on a rather narrow ground and the justices pointed to the
lack of clear constitutional standards in midst of changing circumstances and rapid
advancement in medicine. This position gives ample opportunity for the political branches to
reconsider the current regulation of physician assisted suicide.
Petitions for constitutional review and amici curiae
The decision of the Court was not unexpected: since last fall outgoing Chief Justice
Janos Nemeth has been mentioning that the Court was finally ready to decide in the case. The
first petition concerning euthanasia was filed with the Constitutional Court in 1993. At that
time the health care law required physicians to take all measures to treat terminally ill patients
with utmost care.1 Petitioners seeking abstract review argued that the rule violated the right to
end one's life in a dignified manner, a right which petitioners found to be protected by Art.
54(1) of the Hungarian Constitution on right to life and human dignity.2 Furthermore,
petitioners argued that the homicide provisions of the Criminal Code are unconstitutional to
the extent they do not privilege such cases where a terminally ill person's life is being ended
without the latter's request.3
Years after the initial petition was filed, a new health care law was passed, allowing
terminally ill persons to refuse life-sustaining treatment. 4 Under the new law, those terminally
ill patients may refuse life-saving or life-sustaining treatment in a notarized written statement
whose condition - despite proper medical care - will result in death within a short period of
time according to the current position of medical science.5 The patient's terminal condition
and notarized statement on refusing treatment shall be certified by a committee of three
physicians, including a psychiatrist who is to ascertain that the patient is of full mental
capacity.6 May the patient refuse to undergo such a committee review the statement on refusal
of treatment shall be disregarded.7 Three days after the committee's report the terminally ill
patient shall reaffirm his / her refusal of treatment before two witnesses.8 As a general rule,
during a personal interview attempts should be made to explore the reasons behind the refusal
of treatment and to convince the patient to withdraw from such a refusal.9 The patient shall
also be informed about the consequences of withdrawing life-saving or life-sustaining
1 Art. 43(2) of Act No. 2 of 1972 on health care ('^old health care law'^)
2 Art. 54(1), Constitution: In the Republic of Hungary everyone has the inherent right to life and to human
dignity. No one shall be arbitrarily denied of these rights.
3 The homicide provisions affected are Arts. 166 and 168 of Act No. 4 of 1978 on the Criminal Code ('^Criminal
Code'^).
4 Act No. 154 of 1997 on health care ('^new health care law'^)
5 Art. 20(3) of the new health care law
6 Art. 20(4) of the new health care law
7 Art. 20(4) of the new health care law
8 Art. 20(4) of the new health care law
9 Art. 20(7) of the new health care law
treatment.10 The terminally ill patient's refusal of life-saving or life-sustaining treatment will
only be observed if the will of the patient may be ascertained in a clear and convincing
manner. A statement on refusing treatment can be withdrawn at any time, without any formal
requirements.11 In case of doubt the patient's latest declaration, made in person prevails;
lacking such a declaration the patient's request for accepting life-saving or life-sustaining
treatment is presumed.12
Petitioners challenged the above procedure in 2001, in an amended petition. They
claimed that the above rules impose an unconstitutional imitation on self-determination
(autonomy). Petitioners claimed that in accordance with Art. 8(1) of the Constitution it is the
duty of the state to establish adequate safeguards protecting and promoting patient's decisional
autonomy (institutional protection). Petitioners maintained their challenges in all other
respects.13
In an amicus curiae brief to the Constitutional Court prominent scholars János Kis and
András Sajó demonstrated that the procedure required for refusing treatment in the new health
care law suffers from numerous insufficiencies.14 The brief stresses that not all terminally ill
patients are entitled to refuse life-sustaining treatment, only those whose death is nearing.
Furthermore, the law requires the refusal to be reaffirmed for an excessive number of times.
According to the amici the task of the psychiatrist participating on the physicians' committee
indicates that in effect the law introduces a presumption of mental incapacity - a presumption
which amounts to an unnecessary and disproportionate restriction on the right to selfdetermination
(autonomy).
When summarizing constitutional considerations, the amicus brief stressed that in its
long-standing jurisprudence under Art. 54(1) of the Constitution the Constitutional Court held
the right to life and human dignity to be inseparable. This unity of the right to life and dignity
implies the right to self-determination (autonomy). The right to life extends to the decision to
end one's own life. Thus, under the pretext of protecting the right to life the government
cannot protect the subject of this right to her own detriment. Rather, the duty of the state is to
establish appropriate safeguards guaranteeing the observance of such a decision even at a time
when the right-holder is not in the position to take the necessary means on her own. After all,
a position holding that the right to life does not include a right to end one's own life would
necessarily entail the criminal prohibition of suicide.
The brief amicus brief noted that according to a recent poll, 67 per cent of Hungarians
support active euthanasia. Since according to the census of 2000, over 74 per cent of
Hungarians consider themselves religious, this means that more than half of the religious
segment of the population is in favor of active euthanasia. The amici urged the Court not to
reach a judgment that would not preclude public discourse and professional exchange
necessary for regulating the issue.
The Constitutional Court bound by the petition
Before reaching the merits, the justices Court emphasized that in making their decision
they were bound by the terms of the petition. It means that the Court reviewed the
constitutionality of those legal provisions which were challenged by the petition. Also, the
justices considered only those grounds for unconstitutionality which were raised by the
petition. Thus, the Court examined whether the challenged provisions violated the right to life
10 Art. 20(7) of the new health care law
11 Art. 20(8) of the new health care law
12 Art. 23(1) of the new health care law
13 The amended petition is available in Hungarian at Fundamentum, 2003/1, 125-133.
14 The amicus curiae brief was printed in Hungarian at Fundamentum, 2003/1, 134-141.
and human dignity clause of the Constitution, but did not review the challenged legislation on
any other ground.
In particular, the Court refused to rely on such grounds extra petita which were
invoked in foreign and international courts. There the Court mentioned the Pretty case
decided by the European Court of Human Rights15, where the applicant challenged the
decision of national authorities denying her request for immunity from prosecution to her
husband if he assisted her in committing suicide. In addition to invoking the right to life (Art.
2), the unsuccessful petitioner, inter alia, relied on the prohibition of torture, inhuman and
degrading treatment or punishment (Art. 3) and the right to respect for private life (Art. 8)
under the European Convention on Human Rights and Fundamental Freedoms (Rome, 1950).
The Constitutional Court on active euthanasia
Before entering judgment on the challenged provisions, the Court reviewed
international and foreign jurisprudence and legislation concerning euthanasia. The Court
discussed extensively jurisprudence in the United Kingdom well beyond the Pretty case,
legislation in the Netherlands and Belgium, the 2001 decision of the Conseil d'Etat,
legislation and jurisprudence in the US and the fate of legislation in Australia. The
Constitutional Court concluded, that the request of terminally ill patients to end their life is
secured in few legal systems, typically in the form of recognizing the right of terminally ill
patient to refuse treatment as a matter of self-determination (autonomy); only the Dutch, the
Belgian and the Oregon statute offer the option of active euthanasia. Thereafter the
Constitutional Court reviewed Council of Europe positions, with special regard on
Parliamentary Assembly recommendation no. 1418 (1999)16 on the protection of the human
rights and dignity of the terminally ill and the dying. The Constitutional Court highlighted the
recommendation '^to ensure that no terminally ill or dying person is treated against his or her
will while ensuring that he or she is neither influenced nor pressured by another person'^
[9.b.iii] and the recognition that '^a terminally ill or dying person's wish to die never
constitutes any legal claim to die at the hand of another person'^ [9.c.ii], including the
recognition that '^a terminally ill or dying person's wish to die cannot of itself constitute a
legal justification to carry out actions intended to bring about death'^ [9.c.iii].
Thereafter the Court reviewed its previous jurisprudence on human dignity and the
general personality right.17 The justices emphasized that the right to life and human dignity
form a unity or '^mother-right'^, which deserves absolute constitutional protection and cannot
be subject to limitations.18 However, further rights derived from the mother-right to human
dignity can be subject to such limitations as other rights protected by the Constitution.19 The
issue raised by the petition is best understood in the light of a particular aspect of human
dignity, i.e. the right to self-determination (autonomy). In this respect the Constitutional Court
referred to the Canadian Supreme Court's judgment in Rodriguez v. A.-G.20 also followed by
15 Pretty v. U.K., Application no. 2346/02, judgment of 29 April 2002.
16 Text adopted on 25 June 1999 (24th Sitting).
17 The Constitutional Court recognised the general personality right in the penumbra of the right to human
dignity in its decision 8/1990 (IV. 23.) AB.
18 Quoting decision 64/1991 (XII. 17.) AB.
19 Quoting decision 75/1995 (XII. 21.) AB.
20 [1994 2 LRC 136]
the European Court of Human Rights in the Pretty case21, finding that a statutory prohibition
of physician assisted suicide constitutes a limitation of the patients' autonomy.
Furthermore, the Constitutional Court held that a neutral legal system cannot pass
moral judgment on one's decision to end her life: as a rule the state shall refrain from
interfering with this sphere of life. In this sphere state interference is justified to the extent
necessary for fulfilling the state's obligation to protect human life (i.e. state's obligation to
provide institutional protection). The Court stressed that the limitation imposed by state
interference shall be unavoidably necessary, and cannot result in a complete deprivation of the
right. The role of the Constitutional Court is limited to examining the justification for state
interference.
The Constitutional Court expressed, however, that requesting the assistance of a
physician to end one's life cannot be regarded as the exercise of the right to self-determination
and its limitation is not subject to the above conditions. It is so because the decision triggers a
process involving the participation of the patient's physician. In such a situation the role of the
physician is not limited to executing the patient's will: according to the Court the physician's
participation, her advice on the nature of the disease and the prognosis of treatment and pain
will influence the patient's decision.
Thereafter the Court proceeded with explaining the relationship of right to life and
human dignity, and the permissible limitations thereof. As for the unity of the right to life and
dignity, the Constitutional Court said that such unity applies in cases where one's life or
dignity is threatened by another person. A claim for euthanasia is not a claim for the
deprivation of life by another person, but is a claim made in the context of a suicide-wish,
even though carrying it into effect might take a physician's assistance. Thus, the claim for
euthanasia is not connected with the right to life; instead, it implicates the right to human
dignity. Indeed, the right to human dignity does not supplement the right to life, rather the
right to human dignity is invoked to suppress the right to life. Consequently, the absolute
nature of the unity of the right to life and human dignity cannot be extended to human dignity
on its own.
In response to the petition challenging the prohibition of active euthanasia, the Court
said that a physician's or another person's intervention resulting the in the death of a
terminally ill patient without the specific request of the patient to this effect cannot be
regarded as an exercise of the patient's autonomy (self-determination), not even in the case
when the interference is meant to preserve the patient's dignity.
On the other hand, the Court emphasized that parliament's discretion is rather narrow
in a situation where a terminally ill patient is refusing life sustaining treatment in order to end
her life to preserve her dignity, while her right to life should not be infringed. The legislator
can allow for the terminally ill patient's decisional autonomy to prevail if the legislator can
assure that the decision (refusal of treatment) is the unmanipulated expression of the patient's
real will. The protection of decisional autonomy cannot result in a loss of trust in health care
facilities. The line between a constitutional limitation and an unconstitutional restriction of the
decisional autonomy of terminally ill persons cannot be drawn in abstract and absolute terms,
as among other factors it depends on knowledge and institutional conditions. This
development can also be sensed in Hungary's departure from the absolute prohibition on the
refusal of life-sustaining treatment.
Regarding the petition concerning the prohibition of active euthanasia, the
Constitutional Court held that the claim of terminally ill persons to induce death with the
21 See para 66. The European Court continued by saying that '^[a]lthough the Canadian court was considering a
provision of the Canadian Charter framed in different terms from those of Article 8 of the Convention,
comparable concerns arose regarding the principle of personal autonomy in the sense of the right to make
choices about one's own body.'^
active assistance of a physician is not within a person's decisional autonomy. The Court was
of the view that in case of terminally ill persons the duty of the state to protect human life is
of special significance, as persons suffering from a terminal disease have a reduced capacity
to assert their own interest and are exposed to the influence of their environment to an
increased degree. The right of the terminally ill to self-determination (autonomy) may be
limited in order to protect the right to life. The duty of the state extends not only to assure that
a terminally ill individual reached her decision free of undue influences; the state shall also be
mindful of the life of all persons who might have to take a similar decision in the future.
According to the Constitutional Court such safeguards are also essential for preserving public
trust in health care institutions. The Court found that the limitations imposed on the decisional
autonomy of terminally ill persons excluding the possibility of requesting physician assisted
suicide meets the requirement of constitutionality.
Regarding the petition challenging the constitutionality of the procedure available for
terminally ill persons to refuse life-sustaining treatment, the Constitutional Court found that it
was constitutionally acceptable to restrict this option for a narrowly defined class of
terminally ill persons. Under the law only those persons may refuse life sustaining treatment
whose condition is terminal and is likely to lead to death within a short period of time
according to contemporary medicine. The Court found that these conditions are acceptable in
the light of rapid developments in human medicine. The state's duty to preserve human life
justifies the limitation which the condition imposes on such persons whose terminal condition
is expected to result in death in the distant future. The Court found that the examination by the
committee of three physician is constitutionally acceptable as the task of the committee is to
certify that the statutory conditions for refusing treatment are met. The duty of the
government to preserve human life also justifies the statutory rules establishing a preference
in favor of a presumption of requesting life-saving and life-sustaining treatments. Referring to
its position on the provisions of the health care law, the Constitutional Court rejected all
challenges concerning the constitutionality of the homicide provisions of the Criminal Code.
In her concurring opinion Justice Tersztyanszkyne Eva Vasadi was of the view that a
situation in which a human being was to choose between her life and dignity is not
conceivable. According to her, the decision to end one's life is not an aspect of selfdetermination
(autonomy): suicide is an extra-legal situation. State neutrality does not prevent
a state from taking a firm stance in favor of protecting all rights and values pertaining to
human life.
Justice Andras Hollo joined by Justice Istvan Kukorelli, concurring, said that as the
Court did not exclude the constitutionality of active euthanasia per se, the Constitutional
Court erred when it did failed to identify that the lack of rules on active euthanasia amounted
to an unconstitutional omission. Furthermore, in a dissenting opinion Justice Hollo joined by
Justice Kukorelli found that the rules on refusing life-sustaining treatment imposed an
unnecessary and disproportionate limitation on the right to self-determination (autonomy).
Justice Mihaly Bihari dissented at length on similar grounds. Justice Arpad Erdei, while
joining the majority on all major grounds, dissented with regard to the Court's interpretation
of the rules on obtaining the informed consent of patients to invasive medical procedures.
The aftermath or the road ahead
The decision of the Constitutional Court received noisy media attention. As Chief
Justice Nemeth is retiring, the decision was regarded as his farewell gesture. Court-watchers
suggest that the dissenting opinions filed in the case might be indicative of the position of
constitutional court justices in selecting the next president of the Constitutional Court. The
decision on the merits was received with mixed feelings. The Court was criticized for taking
such a restricted approach and in particular, for refusing to consider the constitutionality of
the restriction imposed on pregnant women. The Court's approach in distinguishing active and
passive euthanasia was also criticized. When discussing active euthanasia the Court
concentrates on the relationship of the physician and the patient, thus ignoring the fact that the
patient is facing the state as her antagonist irrespective of which form of euthanasia she might
be seeking. Also, the justices did not seem to consider public opinion on the question of
euthanasia. Furthermore, commentators suggest that in taking its decision the Constitutional
Court did not pay sufficient attention to the practical application, or, rather, applicability of
the procedure established in the 1997 act. Albert Takacs, deputy parliamentary commissioner
for civil rights - who was one of the authors of both petitions challenging the rules on
euthanasia- instantly initiated a review of the implementation of the procedure in health care
institutions.
While noting the shortcomings of the decision, influential commentators emphasized
that the Constitutional Court did not find active euthanasia per se unconstitutional. The
decision of the Court was taken on a rather narrow ground and the justices also pointed to the
lack of clear constitutional standards in the light of changing circumstances and rapid
advancement in medicine. Rights advocates may also find refuge in the statement of Justice
Minister Peter Barandy made a few days after the Court rendered its judgment. In response to
an interpellation the Justice Minister said that the government was ready to review the
procedure established in the 1997 law and to remove procedural hurdles to make the
provisions applicable in practice. [response to an interpellationon April 30, 2003 /
parliamentary record / www.mkogy.hu]
The Constitutional Court's firm stance on being bound by the petition might be read to
suggest that the Court was intent on delivering a narrowly tailored judgment in the case. This
approach leaves plenty of opportunities for reconsidering the legal regulation of physicianassisted
suicide. The Court's refusal of one set of rules on a narrow ground does not preclude
the court to find a different regulatory solution constitutional on a different ground. The
Court's approach has one weakness, though. The justices did not consider the constitutionality
of such provisions of the new health care law which were not challenged by the petition. Such
provisions are thus unaffected by the court's decision. For instance, under the law, a pregnant
woman who is likely to carry her pregnancy to term is not entitled to refuse treatment.22
Lacking a petition the constitutional court did not examine whether this provision was
compatible with the right to self-determination (autonomy).
22 Art. 20(6) of the new health care law