GERMANY
Two days in Karlsruhe raise hopes for human dignity

 

On 16 and 17 April 2019, Ludwig A. Minelli and Sandra Martino, both board members of "DIGNITAS – To live with dignity – To die with dignity", appeared together with a number of other complainants at a hearing before the German Federal Constitutional Court: The question was whether § 217 ("Geschäftsmässige Förderung der Selbsttötung"), which prohibits any individual or organisation to repeatedly contribute to an assisted suicide and which was introduced into the German Criminal Code (StGB) by a conservative majority of the German Bundestag in 2015 violates the Basic Law (the German Federal Constitution).

The way in which the eight judges of the 2nd Senate of Germany’s highest court asked questions primarily to the representatives of the Bundestag, and their comments on their statements, give rise to hopes that § 217 concocted by most conservative religious circles, will be declared unconstitutional in the course of this year – and will as a result become an ignorable part of German law history.

Motion for withdrawal in the run-up

For some time in the run-up to this hearing, the court had already approved a motion by the association "Sterbehilfe Deutschland e.V.", which was also a complainant, stating that Federal Constitutional Judge Peter Müller (CDU) was to be declared biased and had to withdraw from the case: Prior to his election to the court, Müller was Minister President of the Saarland and, after the founding of "DIGNITAS Menschenwürdig leben Menschenwürdig sterben (Sektion Deutschland) e.V." in Hanover on 26 September 2005, had assiduously tried, together with the federal states of Hesse and Thuringia, then also governed by the Christian Democratic Union (CDU), to prohibit suicide assistance in Germany by means of a law initiated by the Bundesrat (upper house of the German parliament). As a consequence the 2nd Senate lacked one judge, and the biased judge Müller had to be replaced in accordance to the law by a judge from the 1st Senate for this case.

The composition of the 2nd Senate for the case

The President of the Federal Constitutional Court, Andreas Vosskuhle, conducted the hearing in a remarkably calm and confidence-building manner, as usual with sovereignty. On the first day of the hearing, and during the morning of the second day, the Senate Sybille Kessal-Wulf as rapporteur, Peter M. Huber, Monika Hermanns, Ulrich Maidowsky, Doris König, Johannes Masing (the judge appointed by the 1st Senate) and Christine Langenfeld listened to what the complainants, the respondents (representatives of the majority of the Bundestag who had voted in favour of § 217) and numerous experts invited by the court presented on the current factual situation. The court had submitted specific questions to the experts, to which they usually replied with a short statement. Following these statements, the judges asked additional questions. From time to time, representatives of the complainants could also put supplementary questions to the experts.

The consequences of § 217 StGB

It became clear that after the Human Rights Day of the year 2015 – on December 10 on which § 217 StGB came into force thanks to the rather clueless signing of the law by the then Federal President and former pastor Joachim Gauck, suicide assistance could no longer take place in Germany. In addition, the law put doctors in Germany under pressure to such an extent that they felt insecure about prescribing strong painkillers for their patients in palliative care, which is particularly important for combating pain.

We should keep in mind that Frank-Ulrich Montgomery, President of the German Medical Association and recently elected President of the World Medical Association, said in December 2014 with regard to suicide assistance "Let the plumber do it" and wrote a letter to members of the Bundestag immediately before the debate claiming that § 217 StGB would not impinge on the activities of doctors in palliative medicine.

At least, a representative of the Medical Association of Baden-Württemberg stated that his association had not adopted the prohibition of suicide assistance as stipulated by the professional code of conduct model of the German Medical Association, and an exponent of palliative medicine from the same federal state, who argued strictly along the lines of the Church, admitted that in particularly serious cases she would be inclined to help a patient.

One-sided selection of reviewers

Even before the hearing, observers had the impression that the Federal Constitutional Court had proceeded very one-sidedly in its selection of experts: most of them came from institutions closely connected with the two major churches. From among organisations advocating freedom of choice at life’s end, only the Giordano Bruno Foundation with its spokesman, the German philosopher and author Michael Schmidt-Salomon, had its say.

However, the German press had commented that the Federal Constitutional Court’s one-sided selection of experts for the hearing may actually not be in favor a their position. This became clearly evident on the afternoon of the second day of the hearing.

The legal appreciation

During the afternoon of the second day, the eight judges dealt in particular with the legal issues raised by the complaints.

It turned out that the Federal Constitutional Court assumes that the right of any legally competent person to decide for him- or herself when and how his or her life should end is one of the human rights guaranteed at European level. It is part of the fundamental right to protection of privacy, as decided by the European Court of Human Rights already in 2011. The Federal Administrative Court in Leipzig in March 2017 also took this as a basis when it ruled that in exceptional cases a person must be granted access to the best lethal medication.

The focus of interest was, among other things, the question of how to prove the free and firm decision of a person who wants to go down this path. Some of the interviewed experts wanted to make the court believe that it was essential to have one or even two psychiatrists accompany such a person for several months. Others claimed that an agreement by several physicians would be necessary.

It is obvious that such a paternalistic and medicalized regulation, combined with the growing shortage of doctors, would make suicide assistance virtually impossible. Thus, the current legal "chilling effect", which is caused by § 217 in German criminal law and creates legal uncertainty for the medical profession, would simply be replaced by another "chilling effect", i.e. a medical one. The hurdles to access suicide assistance would be raised so high that only very few severely suffering persons would succeed in overcoming them. All others would be denied the realisation of their fundamental right to decide on the manner and time of their life’s end: they would have to continue to resort to risky and illegal methods or to travel to DIGNITAS in Switzerland.

In particular, these "experts" overlook the fact that at the outset any person must be presumed to be legally competent. Of course, this also applies to persons who express the wish to end their suffering and life. Obviously, "experts" still believe that someone who wants to decide by himself on the time and manner to end his life cannot possibly be fully competent. Such extent of disrespect, paternalism, stigmatization and degradation toward citizens who just ask to make use of their right to self-determination say a lot about the state of the German health system.

Court President Vosskuhle noticed that in cases where a patient rejects a proposed therapy, even though this decision may lead to his death, doctors seem to have fewer requirements for determining the patient’s free and firm decision than for an accompanied suicide. He asked one of the psychiatric experts whether there really was a difference. However, the expert questioned was not able to answer this simple question with a simple yes or no, but rather beat around the bush, presumably to conceal his personal, quite likely legally untenable view. After two further failed attempts to obtain a clear answer, Vosskuhle gave up.

The verdict will follow in a few months time.

 

 

 

 

Newsletter 2019-2-1-e

 
 

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