AUSTRIA

Does Austria now need a special law on assisted suicide?
A short analysis of the Constitutional Court's judgment

On 11 December 2020, in a ground-breaking judgment [1], the Austrian Constitutional Court (VfGH) declared unconstitutional a provision that had existed since the 1930s and had presumably be included in criminal law due to the preeminent doctrines in force at the time. More specifically, as of 1 January 2022, the phrase "or assists him or her to do so" in Section 78 of the Austrian Criminal Code (StGB), entitled "Assisting in suicide", will be invalidated; Section 78 reads in its entirety:

"Whoever induces another to kill himself or herself, or assists him or her to do so, shall be punished with imprisonment from six months to five years".

According to the Constitutional Court, the penalisation of suicide assistance is no longer tenable because every legal subject has a right to free self-determination based on the Austrian Constitution – particularly based on Article 63 paragraph 1 of the State Treaty of Saint-Germain [2], which has been federal constitutional law in Austria since 1920. The Constitutional Court held that this right encompasses both the right to shape one's life and the right to die with dignity. In the actual exercise of the right to a self-determined end of life in dignity, the person who wishes to end his or her life is often dependent on the help of third parties. According to the will of the highest court, this possibility may not (any longer) be withheld by the (penal) legislator.

One-year "transitional period"

In view of the Constitutional Court's statements, one can justifiably raise the question of why this phrase will not be repealed until one year from now, i.e. not until 1 January 2022. One reason might be that this provision has a longer history in Austria than, for example, in Germany, where the Federal Constitutional Court in Karlsruhe, in a similar case, just restored the legal situation from before 2015 with immediate effect. § 217 paragraph 1 of the German Criminal Code [3], "geschäftsmässige Förderung der Selbsttötung" (prohibition of repeated and thus professional assistance in suicide), adopted by the German Bundestag in 2015, was declared null and void [4].

The motive of the Austrian judges to decide on such a long "transitional period" can at best be inferred from paragraph 13 (point 99 on page 85) of the judgement: "The Constitutional Court does not overlook the fact that free self-determination is also influenced by diverse social and economic circumstances. Accordingly, the legislature must (also) provide for measures to ensure that the person concerned does not take his or her decision to end his or her own life under the influence of third parties. "Accordingly, the legislature should possibly be given time to adopt flanking measures before the repeal of the criminal code provision. In paragraph 102 on page 86 of the judgement, this request is supplemented: "Legislative and other state measures are therefore necessary to counteract the differences in the living conditions of persons affected and to enable access to palliative care for all."

Is a legal regulation mandatory according to the judgement?

The majority among the readers of the judgement probably see in those lines a mandate to the Austrian legislator to make law provisions on assisted suicide and its prerequisites. However, voices have already been raised against further state regulations. In an article in the Viennese newspaper "Der Standard", constitutional law expert Heinz Mayer, for example, states that "in theory (...) nothing (would have to) be done". In that case, the phrase in question would just be dropped without further ado as of 1 January 2022 [5]. The following argumentation of the Constitutional Court shows that this "theory" is not plucked out of thin air but insinuated by the Court in the formulation of its reasoning and thus should not be ignored.

The Constitutional Court essentially justifies its decision to annul the phrase "or assists him or her to do so" of Section 78 StGB as unconstitutional as follows: From the point of view of fundamental rights, it makes "no difference whether the patient, within the framework of his autonomy in treatment decisions or within the framework of the living will (advance directive), in exercising his right of self-determination, refuses life-prolonging or life-sustaining medical measures, or whether a person, in exercising his or her right of self-determination, wishes to end his or her own life with the assistance of a third party in order to end his or her life with the dignity sought by him or her. Rather, what is decisive in each case is that the respective decision is made on the basis of free self-determination (paragraph 92 on pages 83f.)".

Thus, so-called passive euthanasia (stopping treatment, “to let die”) is also an application of the principle of the patient's autonomy in treatment decisions; passive euthanasia is, as it were, superimposed by the patient's autonomy in treatment decisions. This means, however, that the attending physician must in any case comply with the patient's educated and informed decision as to whether and under what circumstances the patient consents to or refuses a medical treatment measure, "regardless of whether or not this decision is expedient from a medical point of view (paragraph 97 on page 85)".

Prohibition contradicts the patient's self-determination and autonomy in treatment decisions

For the Constitutional Court it is thus given that there is a contradiction between the patient's autonomy in treatment decisions, which has its base in constitutional rights, but is also expressed in § 49a para. 2 of the Austrian Medical Act (provided that there is a living will), and the complete ban on assisted suicide, as laid down in Section 78 of the Criminal Code: "If, on the one hand, the patient can decide (through non-consent or revocation of consent) whether his or her life is to be saved or prolonged by medical treatment, and, on the other hand, even the premature death of a patient in the context of medical treatment under the conditions laid down by § 49a para. 2 of the Austrian Medical Act (Ärztegesetz 1998) is accepted, there is no justification for prohibiting the person willing to end his or her life from being assisted by a third party in whatever way and form in connection with the suicide and thus for denying the right to self-determination without any exception (paragraph 98 on page 85)".

At the end of these explanations, the Constitutional Court comes to the aforementioned conclusion and states that in view of this result it was unnecessary to "address the other concerns set out in the application as to the constitutionality of Section 78, second fact, of the Criminal Code as well as the applicability of the Charter of Fundamental Rights (paragraph 106 on page 87)".

Restoration of the systematics of law - no special law necessary

This reasoning in the Constitutional Court’s judgment deserves special attention. It means nothing other than that the prohibition of assisted suicide also does not or no longer – it is to be assumed that the provision in the Medical Act and the Living Will Act were enacted later – fit into the systematics of the law applicable in Austria: whoever, on the one hand, allows a person to make the self-determined decision not to be treated and accepts that a pain-relieving therapy accelerates the end of life, may not, on the other hand, prohibit someone from making the self-determined decision to end his or her life with the help of a third party, partly for the same – already legally regulated – reasons.

With the repeal of the phrase "or assists him or her to do so", the Constitutional Court has removed this contradiction, i.e. the systematics in the Austrian legal system will be restored in this area of regulation on 1 January 2022. Therefore, the question posed earlier must be repeated: Is there really a need now – or as of 1 January 2022, when the various provisions from the Criminal Code, the Living Will Act and the Medical Act will no longer contradict each other and consistency in the regulatory content of the various legal sources will finally be achieved – for a special law on assisted suicide with further regulations which bear the risk of compromising this uniformity again? According to the opinion expressed here and in view of the Constitutional Court's findings, such a set of regulations is not necessary. Any ambiguities that may arise can be resolved by analogous application of existing provisions and the applicable case law.

The existing legal framework is sufficient

When enacting new regulations or deciding whether new regulations need to be adopted, a comparative legal view across the border can be quite useful, even if the respective circumstances cannot of course be transferred one-to-one to the present ones. In 2006, for example, the Swiss Government commissioned a study on whether there was a need for action (including legislative action) on assisted suicide and palliative care, especially on organised suicide assistance [6]. The final report of 29 June 2011 shows that the Swiss Federal Council, after an in-depth political process, decided to dispense with special legislation in this matter because the general laws are considered sufficient to prevent any abuses. The practice since then (and also before) of the organisations in Switzerland which provide suicide assistance in collaboration with medical doctors as part of their activities, has confirmed this view. Since the (criminal) legal situation in both countries is now, or will be from 1 January 2022, quite comparable [7], this solution can at least be considered by way of legal comparison.

If the legislature should not follow this view, it must be pointed out that when a law on assisted suicide is enacted, the limits set by the Constitutional Court’s judgment and the existing law leave hardly any room for manoeuvre. It should not be in the interest of the legislator to disrupt the now restored systematics of the Austrian legal order on this subject again by actionism influenced by whomever.

***

[1] VfGH-Erkenntnis G 139/2019 vom 11.12.2020 (in German)
https://www.vfgh.gv.at/downloads/VfGH-Erkenntnis_G_139_2019_vom_11.12.2020.pdf

[2] "Austria undertakes to assure full and complete protection of life and liberty to all inhabitants of Austria without distinction of birth, nationality, language, race, or religion."

[3] § 217 paragraph 1: "Whoever, with the intention of assisting another person to commit suicide, provides, procures or arranges the opportunity for that person to do so and whose actions are intended as a recurring pursuit incurs a penalty of imprisonment for a term not exceeding three years or a fine."

[4] see point 337 of the ruling of 26 February 2020:
https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2020/02/
rs20200226_2bvr234715en.html; jsessionid=CA2EADE5F649E8ED82A2878A9955750A.1_cid377

[5] https://www.derstandard.at/story/2000122463131/wie-stark-die-politik-die-sterbehilfe-begrenzen-darf (in German)

[6] https://www.bj.admin.ch/bj/en/home/gesellschaft/gesetzgebung/archiv/sterbehilfe.html

[7] Article 115 of the Swiss Criminal Code: "Any person who for selfish motives incites or assists another to commit or attempt to commit suicide is, if that other person thereafter commits or attempts to commit suicide, liable to a custodial sentence not exceeding five years or to a monetary penalty."
§ 78 of the Austrian Criminal Code as of 1 January 2022: " Whoever induces another to kill himself or herself shall be punished with imprisonment from six months to five years."

Newsletter 2021-1-1-e