In this dissertation I describe three models of formal and effective legal regulation of euthanasia and assisted suicide in the sample countries taking into account the decisions of the ECtHR. All three models, the Dutch, Swiss and Slovenian, are based on three basic principles: the principle of sanctity of life, the principle of autonomy and on the principle of beneficence, but it is noted that each country gives to a particular principle greater or lesser importance.
The Dutch model is based on the exclusion of criminal and civil liability and provides for the parity of the three principles. Exemption from criminal and civil liability of the doctor, for otherwise generally-prohibited acts of euthanasia and assisted suicide, results from justification of necessity, from the physician's conflict of duties. The responsibility of the assistant is excluded only if euthanasia or assisted suicide is performed by a doctor who meets the requirement of due care set in the second article of the Termination of Life on Request and Assisted suicide (Review procedures) Act.
The Swiss system also takes into account the principle of the sanctity of life and the principle of beneficence, but the system is primarily based on the principle of autonomy and the right to self-determination. The individual’s right to self-determination by what means and at what point will their life end, as aspects of the right to respect for private life, is guaranteed under the article 13 of the Swiss Federal Constitution and under the article 8 of ECHR. Impunity of the assisted suicide is guaranteed under the Article 115 of the Swiss Penal Code, which provides that such act is punishable only if it was committed for selfish motives. The realization of the termination of life with the help of third is provided by the Right to die organisations and physicians. Principles of sanctity of life and beneficence are protected by the provisions about decisional capacity and requirement of due care set out in RTDO's rules and medicines laws and ethical guidelines.
The Slovenian model stresses and significantly primarily stems from the principle of the sanctity of life. The Slovenian legal system prohibits euthanasia and assisted suicide and defines them as criminal acts and as a tort. The Slovenian system does not allow the exclusion of the illegality of those actions on the basis of the institution of the consent of the victim, i.e. on the basis of the right to self-determination. Theoretically, the only possibility is the exclusion of culpability of the offender based on the justification of necessity. The principles of autonomy and beneficence are considered only to a very limited extend - only as factors for assessing the existence of the conditions for invoking the offender's defence of justification of necessity.
The ECtHR in the cases Pretty, Haas, Koch and Gross have already recognized an individual's right to self-determination by what means and at what point will life end, as a part of the right to respect for private life. The court's decision is based on parity of the principles of the sanctity of life, autonomy and beneficence. The principle of autonomy (if necessary with the help of third parties) can prevail over the principle of the sanctity of life considering the principle of beneficence. The court has also decided that if the legal system allows (in one way or another) active termination of life, the legal framework must be foreseeable. The extent and the procedure for exercising rights must be clear and understandable for the addresses.
Considering the above points of ECtHR, the Slovenian's system is, in my opinion, inadequate and should be changed by taking into account the solutions of the other two systems, especially the Dutch system.
|
