AUSTRIA
Move against the ban on suicide assistance

The Republic of Austria has one of the most rigorous prohibition systems against assisted suicide in Europe. The Austrian Penal Code (ÖStGB), article 78 on "cooperation in suicide", stipulates that who induces another person to kill him- or herself or helps him or her to do so will be punished with imprisonment of six months to five years.

This alone would not be decisive; similar laws exist in other countries, such as England and Wales, under the Suicide Act of 1961. However, in contrast to other countries, the Austrian Penal Code provides in article 64, paragraph 1 (7) that the Austrian Penal Code also applies if the suicide is not committed in Austria itself but, for example, in Switzerland, where suicide assistance, in particular accompanied suicide by non-profit member societies such as DIGNITAS – To live with dignity – To die with dignity, in cooperation with medical doctors, basically constitutes no criminal offence.

The Austrian law (article 64, paragraph 1) stipulates among other that Austrian criminal law should also apply to criminal offences abroad, committed by an Austrian against another Austrian, if both have their domicile or habitual residence in Austria (article 64, paragraph 1(7)).

This provision may result in the Austrian criminal authorities initiating criminal proceedings against a person in Austria if they learn that the person – if he/she is Austrian and lives in Austria – helped another Austrian who lived in Austria to go to DIGNITAS in Switzerland in order to be able to end his/her suffering and life there in a self-determined, legal and safe manner.

An unconstitutional ban?

Probably the prohibition stipulated by article 78 of the Austrian Penal Code is already unconstitutional in itself; it is particularly unlawful because it also threatens to punish offences committed abroad.

In the foreseeable future, the current law could become the subject of legal proceedings at the Austrian Constitutional Court. According to article 140 of the Austrian Federal Constitutional Law, a person whose constitutional rights are violated by a law may appeal to the Constitutional Court. The Constitutional Court must then decide whether the law actually violates the Constitution.

DIGNITAS is now working with an Austrian lawyer with the aim of finding individuals in Austria who are affected by the restrictive Austrian law and who are willing to initiate such proceedings before the Constitutional Court. Respective activities are underway.

Is there a way out without the Constitutional Court?

A way out without a decision by the Constitutional Court is also conceivable. Suicide assistance taking place in Switzerland, where it is not considered an offence if certain criteria are met, is only punishable under Austrian law if both the person who wishes to die and the person assisting are Austrians and are resident in Austria. Whether or not the offence is also punishable if the person who wishes to die deregisters at his or her Austrian place of residence before travelling to Switzerland, and declares that he or she will transfer his or her place of residence abroad, has not yet been clarified from a legal point of view. For the time being, DIGNITAS – To live with dignity – To die with dignity is endeavouring to clarify this question theoretically. However, it may also be necessary to take legal action in Austria to clarify this issue.

DIGNITAS will continue to report on the legal situation and the course of legal investigations in Austria.

Newsletter 2018-4-2-e