Gross v. Switzerland

In the case of Gross v. Switzerland (Application no. 67810/10) the Court found violation of Article 8 of the Convention in relation with absence of "clear and comprihensive" legal guidelines concerning the extent of the right to assisted suicide in Switzerland.

The applicant of the case was a Swiss woman who, for many years, had expressed her wish to end her life since she feared of becoming more and more frail and of suffering the decline of her physical and mental faculties. She even attempted suicide after which she was treated in a hospital. In 2008 she was examined by a psychiatrist who found that the applicant's quality of life had been constantly decreasing, and she had also suffered from the fact that she could not talk openly about her wish to die with her friends.On this basis the  psychiatrist observed that "there was no doubt that the applicant was able to form her own judgment" and that "her wish to die was reasoned and well-considered, had persisted for several years and was not based on any psychiatric illness". The psychiatrist therefore - from a psychiatric/medical point of view - did not have any objection to the applicant being prescribed a lethal dose of sodium pentobarbital. The applicant however could not find a medical prectitioner willing to prescribe her the lethal dose - as it was required by the Swiss practice - since all doctors, from whom Gross subsequently requested a prescription, declined. The reason was that they "felt prevented by the code of professional medical conduct" or "did not wish to be drawn into lengthy judicial proceedings".The applicant subsequent requests for the authorization of access to the lethal dose of the medical substance were rejected by to the Health Board and the Administrative Court of the Canton of Zurich. Finally, the Federal Supreme Court rejected the applicant's appeal and found that

the applicant undisputedly did not fulfil the prerequisites laid down in the medical ethics guidelines on the care of patients at the end of life adopted by the Swiss Academy of Medical Sciences [...], as she was not suffering from a terminal illness, but had expressed her wish to die because of her advanced age and increasing frailty. [...] the issuing of the requested substance required a thorough medical examination and, with respect to the persistence of the wish to die, long-term medical supervision by a specialist practitioner who was ready to issue the necessary prescription. This requirement could not be circumvented by the applicant’s request for an exemption from the necessity of obtaining a medical prescription.

In her application submitted to the ECtHR, the applicant complained that the Swiss authorities, by depriving her of the possibility of obtaining a lethal dose of sodium pentobarbital, had violated her right to decide by what means and at what point her life would end. She relied on Articles 2, 3, 6 § 1, 8 and 13.

Violation of Article 8

The Court reiterated, at the outset, that the notion of “private life” is a broad concept, which encompasses, inter alia, the right to personal autonomy and personal development. In its earlier judgment in the case of Pretty v. the United Kingdom, the ECtHR noted that it could not yet exclude that preventing a person by law from "exercising his or her choice to avoid what she considered would be an undignified and distressing end to her life constituted an interference with her right to respect for her private life as guaranteed under Article 8 § 1 of the Convention". The Court further acknowledged in the case of Haas v. Switzerland by 

that an individual’s right to decide the way in which and at which point his or her life should end, provided that he or she was in a position to freely form his or her own judgment and to act accordingly, was one of the aspects of the right to respect for private life within the meaning of Article 8 of the Convention.

Therefore the Court examined the circumstances of the applicant’s case from the perspective of the right to respect for her private life under Article 8. In this regard, the Court considered that the case primarily raised the question whether "the State had failed to provide sufficient guidelines defining if and, in the case of the affirmative, under which circumstances medical practitioners were authorised to issue a medical prescription to a person in the applicant’s condition".

The Court observed that, in its case-law on the subject, the Swiss Federal Supreme Court had referred to the medical ethics guidelines on the care of patients at the end of their life, which were issued by a non-governmental organisation and do not have the formal quality of law. These guidelines only apply to cases where doctors has arrived at the conclusion that - within a matter of days or a few weeks - their patients will die. The applican, however, does not fall within the scope of application of these guidelines, as she did not suffer from a terminal illness. Furthermore, in the case of the applicant, this lack of clear legal guidelines had a negative effect considering the attitude of the doctors, as they declined to prescribe the medication requested by the applicant due to fear of professional or legal consequences. The Court therefore concluded that

the applicant must have found herself in a state of anguish and uncertainty regarding the extent of her right to end her life which would not have occurred if there had been clear, State-approved guidelines defining the circumstances under which medical practitioners are authorised to issue the requested prescription in cases where an individual has come to a serious decision, in the exercise of his or her free will, to end his or her life, but where death is not imminent as a result of a specific medical condition.

As a result, the Court found - with a very narrow majority (4 votes against 3) - that Swiss law does not provide sufficient guidelines ensuring clarity as to the extent of this right, which violated Article 8 of the Convention.

Regarding the substantive matter the applicant’s request, the Court, however, refrained from finding a violation of the right to respect of private life and limited itself to the above conclusion without in any way taking up a stance on the substantive content of such guidelines. Relying on the principle of subsidiarity, the ECtHR considered that it is the primary role of the Swiss authorities "to issue comprehensive and clear guidelines on whether and under which circumstances an individual in the applicant’s situation – that is, someone not suffering from a terminal illness – should be granted the ability to acquire a lethal dose of medication allowing them to end their life".

The ECtHR declared tha remainder of the application manifestly ill-founded and dismissed those claims.

***

The Court - after its judgment in the Pretty- and the Haas-cases and lately in the case of Koch v. Germany - took the opportunity to further develop it case-law considering assisted suicide, as it ruled that the norm clarity, an essential element of the principle of rule of law, obligates the states to issue measures, namely a comprihensive and clear legal framework, that define the limits and extent of the right to access to lethal drugs in order to allow the individual to end his or her life. The ECtHR, on the other hand, rendered this task solely to the state as it refrained from defining - at least some - guidelines regarding the future law. This, however, does not mean that the Court, when the adequacy of this law is questionned, would refrain from examining the compliance of the measure issued by the state with Articel 8 of the Convention.

See the short report about the judgment on Jurist here.

Read the first comment on the judgment on UK Human Rights Blog here.

See comment on the case on Strasbourg Observers here.

See also updated factsheets on the Right to Life and Health.