By Tobias Thienel

On 19 July 2012, the European Court of Human Rights gave judgment in the case of Koch v Germany. The case is notable for advancing the debate on a right of assisted suicide, without itself entering into the debate at all. It is also noteworthy for recognising that not only the person wishing to die, but also that person’s close relatives, have a legal interest in the matter.

The facts were – as so often in these cases –  tragic. The applicant’s wife had been suffering for some time from total sensorimotor quadriplegia, that is to say she was almost completely paralysed and utterly dependent on carers. She wished to commit suicide, and therefore contacted the relevant authorities for permission to obtain some pentobarbital of sodium (otherwise used for lethal injections in the United States). Her application was refused. She eventually committed suicide in Switzerland, where the law was more amenable to her wishes.

Her husband attempted to continue the legal proceedings begun by his wife (and himself). His case was ruled inadmissible at all levels, including by the Federal Constitutional Court (Case No. 1 BvR 1832/07). (Only the court at first instance added, obiter, that the husband would also have failed on the merits, the withholding of the poison having been lawful.) The courts found that the surviving husband could not rely on any rights formerly enjoyed by his late wife. In particular, his rights under the constitutional protection of marriage (Article 6(1) of the Basic Law) did not bestow standing on him to raise the issue whether his wife should have been given the right to obtain the medication to end her life.

The European Court of Human Rights disagreed, at least in the result. It joined the analysis of the German courts in holding that the applicant could not rely on his late wife’s rights under the ECHR as such. However, it found the applicant’s own rights under Article 8 ECHR to be engaged. He had been married to his wife for 25 years and had felt for her during her quest to end her life. Accordingly, on account of ‘the exceptionally close relationship between the
applicant and his late wife and his immediate involvement in the
realisation of her wish to end her life‘, the Court held that the applicant himself had been directly affected by the decision regarding his wife’s access to lethal drugs (para 50).

The Court did not go on to decide whether the applicant had enjoyed a right to the effect that his wife be assisted in committing suicide (such assistance lying in the delivery of the drugs). It reiterated that there was no consensus among European states on any right of assisted suicide, and therefore refrained from pronouncing on the substantive question of such a right in this case. However, the Court did consider the procedural aspect of Article 8 ECHR. This requires that issues under Article 8 ECHR receive appropriate consideration by the courts. It also requires that every case be considered on its own particular merits, with little room being available for one-size-fits-all treatment through hard and fast rules (cf. Anayo v Germany and Schneider v Germany, read with para 53 of Koch). The violation of Mr Koch’s rights therefore lay not in the withholding of the poison as such, but rather in the refusal of the German courts to engage with Mr Koch’s case on the merits (para 72 of Koch).

(One issue that the Court does not address is that the court of first instance did, in an obiter dictum,  consider the merits of the case. Article 8 in its procedural dimension probably does not require more than one judicial instance. However, where domestic law gives a right of appeal, it is probably right to say that the procedural aspects of Article 8 will address themselves to any and all courts dealing with the matter, insofar as their jurisdiction allows them to reach the Article 8 point. This was true for all courts in Mr Koch’s case.)

Now what does this holding entail for the substantive question of the right of assisted suicide?

It entails, first of all, that the German administrative courts will (if approached, which is quite likely) have to reopen the case and consider it on the merits. The jurisdiction to reopen is provided by Section 153(1) of the Administrative Courts Act, read with Section 580 No. 8 of the Code of Civil Procedure, the decision in the applicant’s case having become res judicata only after the entry into force of those provisions (31 December 2006; Section 35 of the Introductory Law to the Code of Civil Procedure).

In substance, however, the Strasbourg Court has not moved the debate on significantly. It certainly has not revised its earlier position to the effect that there was no right of assisted suicide under Article 2, Article 3 or Article 8 (Pretty v United Kingdom, paras 40, 56, 78). Quite to the contrary: the Court has affirmed that there is no European consensus in this matter: Koch, para 70.

What the Court has done, however, is require the domestic courts to address the issue on the merits. Moreover, it has given a right to seek a decision on the merits also to the spouses (and, probably, other very close relatives) of those who once wished to end their lives, and who have since passed away (in one way or another). This implies two holdings: (1) It does not matter that the case has become moot on the death of the person wishing to commit suicide, and (2) it also does not matter that the right of assisted suicide, if any, had vested in the deceased, provided that the surviving claimant had a sufficiently close personal relationship with the deceased and an interest in the issue.

The position, then, is now as follows: The domestic courts must reopen the proceedings and decide whether there is or is not a right of assisted suicide. This right will not be one under the ECHR (see Pretty), but it might exist under domestic law. However, it might also not exist. The judgment in Koch is purely procedural and does not mandate any particular decision on the merits. The domestic courts are perfectly within their rights in deciding that assisted suicide is completely unlawful, or in holding that there is no such right for the time being (thus leaving the matter to Parliament, as in R (Nicklinson) v Ministry of Justice, discussed by Rosalind English at the UK Human Rights Blog). But they will have to form an opinion on the law as it now stands.

While the judgment in Koch therefore does not itself make any bold (and possibly unwarranted) strides in the direction of a right of assisted suicide, it does require the domestic courts to make their voices heard. Moreover, it requires the courts to do this also in the – not completely unusual – situation in which the person primarily concerned has already died. The contribution of Koch to the discussion is thus an indirect one. The domestic judgments occasioned by Koch may well make more substantial contributions.