If not, strictly speaking, “law and religion”, certainly “law and morality”…
In Mortier v Belgium [2022] ECHR 764 [in French], the ECtHR was called upon to rule on whether or not Belgium’s law permitting euthanasia was in conformity with Articles 2 and 8 ECHR.
Background
The applicant was the son of GT, who had suffered from chronic depression for approximately forty years [4]. She had been cared for by a psychiatrist, Dr B, for several years and in 2011 had become a palliative care patient of Professor D. She told Professor D that she had been under psychiatric treatment since the age of 19, that she had tried all the drug treatments without success and that Dr B had told her that she had reached the end of her treatment. Professor D concluded that she was severely traumatized, that she had a severe personality and mood disorder and that she no longer believed in recovery or treatment. He agreed to become her attending physician under the law relating to euthanasia and referred him to Dr V, a psychiatrist, to act as a medical consultant within the meaning of Article 3 of the Law of 28 May 2002 relating to Euthanasia [6].
Dr V agreed that GT suffered from chronic depression with “ups and downs”. Given how long her treatment had gone on for, the prospects for treatment were bleak; however, Dr V thought that GT’s request for euthanasia was premature and suggested that she consult another psychiatrist first [7]. After several further consultations, GT made it clear that did not believe in any possibility of improvement and Professor D, GT herself and the psychiatrists consulted concluded that the only reasonable option was euthanasia [25]. GT died by euthanasia on 19 April 2012 [27].
Mortier made various unsuccessful requests to see a copy of his mother’s euthanasia registration document submitted to the Commission. In April 2014 he lodged a complaint with the public prosecutor about the euthanasia of his mother [39] and in October 2014 he lodged a first application with the domestic court – which was declared inadmissible [40]. In 2017 he was informed that the public prosecutor had dismissed his complaint due to insufficient evidence [41], following which he lodged an application with the ECtHR [42].
The arguments
The Government argued that Mortier had failed to exhaust domestic remedies by failing to bring a civil action before an examining magistrate, by failing to serve a direct summons on the trial court and by failing to institute civil proceedings. Further, the complaints were premature because the criminal investigation had been reopened in 2019 and the matter had still been pending before the national judicial authorities at the time of submission of the observations [70].
Mortier contended that the Government had not demonstrated that the domestic remedies were effective and available both in theory and in practice at the material time and that they had offered reasonable prospects of success [71]. As regards the failure to bring a civil action to establish State liability, he maintained that it could not be considered an effective remedy when, as in the present case, the incidents complained of had resulted from “dangerous activities” [activités dangereuses] and, further, that there had been no effective investigation [72]. As regards the allegedly premature nature of the application, the criminal investigation that had been reopened in 2019 had been closed on 11 December 2020, so the Government’s objection on that ground was no longer tenable [73].
The judgment
The Court emphasised that the case was not about the existence or otherwise of a right to euthanasia: it concerned the compatibility with the Convention of euthanasia as practised in relation to the applicant’s mother [127]. He had maintained that his right to respect for his private and family life had been violated on account of the euthanasia of his mother which, he considered, had been contrary to the obligations of Article 2 of the Convention. He alleged in particular that the national authorities had failed in their duty to ensure his involvement in the process of his mother’s euthanasia: that issue would be examined separately [197].
As to the merits, the issues were whether or not Belgium had breached its positive obligation to guarantee Mortier’s right to respect for his private and family life [201] and whether a fair balance had been struck between the general interest and the interests of the individual concerned [202].
Mortier’s right to respect for his private and family life was not infringed solely because his mother had been euthanized [203]. The Belgian Law on Euthanasia required doctors to discuss a patient’s request for euthanasia with his or her relatives only when the patient so wished: if the patient did not so wish, the doctors could not contact relatives because they were bound by the duty of medical confidentiality [205], which applied in the present case [206]. The legislators could not be criticised for requiring doctors to respect the wishes of the patient on this point, nor for imposing a duty of confidentiality and the maintenance of medical secrecy – and GT’s doctors had done everything reasonable in the circumstances [207]. The legislation had struck a fair balance between the different interests at stake [208] and there had been no violation of Article 8 of the Convention [209].
The court then found as follows:
- it dismissed, unanimously, the preliminary objection relating to the non-exhaustion of domestic remedies and declared the application admissible;
- it held by five votes to two that there had been no violation of Article 2 on account of the legislative framework relating to acts prior to euthanasia;
- it held by five votes to two that there had been no violation of Article 2 on account of the conditions in which the euthanasia of the applicant’s mother was carried out;
- it did, however, hold unanimously that there had been a violation of Article 2 on account of the shortcomings in the a posteriori control of euthanasia as it was practised; and
- it held by six votes to one that there had been no violation of Article 8 of the Convention.