Humboldt-Universität zu Berlin - Prof. Dr. Susanne Baer

Humboldt-Universität zu Berlin | Juristische Fakultät | Prof. Dr. Susanne Baer | Rechtsgrundlagen | Suche Rechtsgrundlagen | Euthanasie-Urteil des Ungarischen Verfassungsgerichts 2003

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