FRANCE 
Hope for legalisation of assisted dying and
a series of applications to the ECHR against France

While politicians are once again holding out the prospect of legalising assisted dying for the people of France in the near future, a group of 31 persons filed a series of applications against France at the European Court of Human Rights (ECHR) on 28 April 2023. This legal action, coordinated by DIGNITAS, aims to ensure that freedom of choice at the end of life is respected and to pave the way for assisted dying in France.

In France, individuals still do not have the freedom to decide on their own end in life. They have no access to a safe medical means to end their own life and cannot request professional assistance to be accompanied in this process. Politicians have long shirked making a decision. Like Italy, France is happy to leave the field to bioethicists and treats questions of self-determination over one's own end of life as a problem of medical ethics. Or as a philosophical question.

However, the possibility of ending one's own suffering and life with professional support is also – and above all – a question of individual freedom and (human) rights. This was stated, among others, by both the European Court of Human Rights in 2011* and the German Constitutional Court in 2020**. This aspect still receives little attention in France.

Public debates and hesitant politics

A large majority of the population of France has long wanted the legalisation of assisted dying. Previous legislative proposals have regularly failed due to resistance from conservative and church circles. The “Convention citoyenne sur la fin de vie”, a citizens' convention commissioned by the French state to deal with end-of-life issues from December 2022 to March 2023, has opened up a broad and quite open public and media debate in France in recent months on the legalisation of assisted dying (assisted suicide and/or voluntary euthanasia). French President Emmanuel Macron has even held out the prospect of a law by summer 2023.

However, the way a future law would work is completely unclear. What form of assisted dying should be permitted? Under what conditions? What role should doctors and nurses play? Statements by public decision-makers such as Health Minister François Braun are also vague. Many voices also demand that the provisions of the so-called “Loi Claeys Léonetti”, the legal provisions in force today, should first be better implemented. For example, the health system is overburdened, palliative care is insufficient in many regions, and living wills are not very widespread. These are legitimate concerns, and it is important that legally enshrined options are actually available to citizens. However, this does not diminish the need to also provide people with a safe way to access assisted dying in their own country.

Freedom of choice and (human) rights as the decisive guiding principles

There will always be people in France whose quality of life is limited to a degree that is intolerable for them personally because of a condition for which medicine does not have adequate answers. Allowing these persons to continue to suffer, to make a risky suicide attempt, to obtain a lethal medication illegally or to travel abroad to die in secret shows little respect for people for whom life has become torment. Why should they continue to be forbidden to prepare for their end in peace and to die at home as they wish?

Despite the hesitant opening, scepticism is warranted. The timetable for a law is ambitious, and there is a risk that a law – as is the case in other countries – will restrict the very freedom it claims to guarantee through unnecessary hurdles and restrictive conditions. DIGNITAS has been contributing its experience to legislative processes for many years. Of course, modalities can and must be discussed. However, freedom of choice and the (human) right to decide on the manner and time of one's own end of life are paramount.

Based on these considerations, DIGNITAS has taken the legal route in France in 2021.

From the Conseil d’État to the ECHR in Strasbourg

On 29 December 2022, the Conseil d’État (France’s highest administrative court) ruled against two applications by DIGNITAS. It had previously refused in both cases to refer the questions raised to the Constitutional Council as part of a “question prioritaire de constitutionnalité” (QPC), considering, irrespective of the seriousness of these questions, that the legislative deficiencies could not be challenged.

The first application, filed in September 2021, dealt with the legality of the current total ban on the medication sodium pentobarbital in human medicine. The second application, filed in July 2022, addressed the question of whether it is legally permissible for the law currently in force in France, known as the “Claeys-Leonetti law”, to leave aside any form of assisted dying (i.e., assisted suicide and/or voluntary euthanasia).

Both proceedings at the Conseil d'État had been supported by several dozen private individuals resident in France, the majority of whom were DIGNITAS members. These supporting submissions by the private individuals (“requêtes en intervention”) were recognised by the Conseil d'État. In doing so, the French judiciary sidestepped an opportunity to call on the legislature to guarantee the right of people in France to decide themselves on the manner and time of their own end of life and to seek help in doing so. At the same time, these decisions made it possible for these private individuals to refer the crucial legal issues raised in the two proceedings by DIGNITAS to the European Court of Human Rights (ECHR) for a judgment.

31 of the private individuals involved in the two proceedings and resident in France are now making use of this option. On 28 April 2023, French lawyer Patrice Spinosi lodged relevant applications on their behalf at the ECHR (see DIGNITAS media release of 22 May 2023). The ECHR will now have to rule on these applications and, within the next few months, could potentially invite the French government to explain itself.

___

* Judgment by the ECHR of 20 January 2011, case Haas v. Switzerland: http://hudoc.echr.coe.int/eng?i=001-102939
“In the light of this case-law, the Court considers that an individual’s right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of Article 8 of the Convention.”

** http://www.dignitas.ch/images/stories/pdf/medienmitteilung-26022020-e.pdf

Newsletter 2023-2-1-e