Haas v. Switzerland

The applicant was a Swiss national who lodged a claim before the European Court on Human Rights (the ECHR), relying on Article 8 of the European Convention on Human right (the Convention), that his right when and how to end his own life had been violated by the state. The applicant claimed to the ECHR that the conditions for obtaining 15 grams of sodium pentobarbital (the lethal substance) had interfered with his right to private and family life under Article 8 of the Convention. He also claimed that access to medical products for suicide should be provided by the government in exceptional cases as his.

He had suffered from serious bipolar affective disorder for more than 20 years and attempted suicide twice. He claimed that it was very difficult to receive the treatment for his illness and this made him live his life without dignity. He had approached an association assisting suicide to help him end his life, and tried but failed to have sodium pentobarbital prescribed by psychiatrists. He also contacted official bodies to allow his receipt of the substance without prescription.

The applicant’s claim to the Federal Office of Justice was dismissed. His claim to the Department of Public Health was also dismissed on the ground that the substance was a prescription drug and Article 8 of the Convention didn’t impose an obligation on the state “to create the conditions for committing suicide without the risk of failure and without pain”. [Para. 10] For similar reasons, the Health Department of the Canton of Zürich dismissed the applicant’s claim and the Administrative Court upheld the decision of the Department of Public Health. The applicant’s appeal from the decision of the Department of Public Health was dismissed by the the Federal Department of the Interior as the applicant’s case wasn’t an emergency to warrant non-prescribed use and only a doctor could prescribe it. 

The applicant appealed from these decisions to the Federal Court submitting that the authorities interfered with his right to end his life in violation of Article 8 of the Convention. In particular, he alleged that the authorities made it difficult for the doctors to prescribe the substance to mentally ill persons in fear of disciplinary measures. He alleged that this measure by the state was not proportional although intended to serve a legitimate aim. The Federal Court dismissed the appeal on the grounds that the substance was to be provided with prescription which the applicant hadn’t obtained, and that the applicant couldn’t request this requirement of having the substance prescribed be lifted for him. The court held that a state had no positive obligation under Article 8 of the Convention or Article 10 of the Federal Constitution of Switzerland to ensure that any person had, with out a prescription, access to a dangerous substance to commit suicide or assist the commission of suicide. It noted that the applicant needed to undergo thorough examination to determine whether his wish to die was true and he was capable of making such judgment. The doctors the applicant approached failed to conduct such an assessment he had required based on the court’s decision for reasons related to time, competence, ethical concerns, and belief that his condition could be treated.

The applicant argued that “the ingestion of sodium pentobarbital was the only dignified, certain, rapid and pain-free method of committing suicide”. [Para. 33] He submitted that the 170 psychiatrists he had seen couldn’t help him and thus the requirements of the Federal court was impossible for him to achieve. He also argued that he was not obliged to undergo treatment anymore as he had clearly and freely made a decision to die and the government’s interference wasn’t justified by his own or the public’s interest. He stated that “the impossibility of finding a psychiatrist willing to provide an expert report had rendered illusory his right to respect for his private life”. [Para. 37]

The government argued that the right to self-determination enshrined under Article 8 of the Convention didn’t imply the right of a person to be assisted to commit suicide with the provision of either the necessary material or the support he needs when he was incapable to act autonomously. It also submitted that the restriction on sodium pentobarbital served the public’s interest in terms of health and prevention of crime. The government also stated that assisted suicide was punishable in certain circumstances under domestic laws. It stated that assisted suicide of psychiatrically ill patients could be effected legally and Doctors had been convicted several times due to improper diagnosis and erroneous judgments. The government also submitted that the regulations of Switzerland were adopted in line with the United Nations Convention on Psychotropic Substances and to provide the applicant with sodium pentobarbital without prescription would be a violation of these regulations.

The ECHR held that a person had the right to decide on the time and the means to end his life under Article 8 of the Convention so long as he was capable of making such a decision and understand the consequences.  The ECHR also noted that the applicant needed the substance to commit a dignified suicide and that he was not mentally disabled to end his own life. It stated that  the right to life under Article 2 of the Convention protected vulnerable people from actions that endanger their lives. Under Article 2, states also had the duty to protect everyone from making a decision to take their own lives unless they made such choice freely and understand the consequences there of.

The ECHR noted that the state's act of restricting access to the lethal substance served a legitimate purpose of preventing abuse or use by a person not capable of making a decision to end his life. It also noted that states "enjoy a considerable margin of appreciation in this area", specially when domestic laws and practices allow assisted suicide. [Para. 55] The ECHR found the applicant's argument that he hadn't found a specialist who could assist him not convincing.

The ECHR held that even if they had the obligation to take steps to help an individual in committing a dignified suicide, the authorities hadn't failed to meet their obligations in the applicant's case. It thus found no violation of Article 8 of the Convention.

".....the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person....... It can sometimes embrace aspects of an individual’s physical and social identity. Elements such as, for example, name, gender identification, and sexual orientation and sexual life fall within the personal sphere protected by Article 8 of the Convention...... Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world." [Para. 50]

"The Court considers that it is appropriate to examine the applicant’s request to obtain access to sodium pentobarbital without a medical prescription from the perspective of a positive obligation on the State to take the necessary measures to permit a dignified suicide. This presupposes a weighing of the different interests at stake, an exercise in which the State is recognized as enjoying a certain margin of appreciation (see Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290), which varies in accordance with the nature of the issues and the importance of the interests at stake." [Para. 53]

"With regard to the balancing of the competing interests in this case, the Court is sympathetic to the applicant’s wish to commit suicide in a safe and dignified manner and without unnecessary pain and suffering, particularly given the high number of suicide attempts that are unsuccessful and which frequently have serious consequences for the individuals concerned and for their families. However, it is of the opinion that the regulations put in place by the Swiss authorities, namely the requirement to obtain a medical prescription, pursue, inter alia, the legitimate aims of protecting everybody from hasty decisions and preventing abuse, and, in particular, ensuring that a patient lacking discernment does not obtain a lethal dose of sodium pentobarbital." [Para. 56]