Impunity for assisted suicide by life partners and physicians

28th November 2022

Author/s:
Attorney-at-law and tax consultant Dr. Dr. Bernd Josef Fehn

On 28th June 2022, the  #Bundesgerichtshof (#BGH) has made another remarkable decision on the unpunishable #assistance to #suicide (file no.: 6 StR 68/21), namely for the case of being dependent of the person willing to #die on acts directly leading to #death by another person. It clarifies completely rightly that, however, the person tired of life and being assisted by another person will be deemed to kill himself, if he retains the free decision over its fate up to the last. Thereby, the chain of cause can also be effected by the other person, if the suicidal person, after his contribution to the act, retains the full freedom to avoid its effects or to end it, in order to affirm an unpunishable #assistance to #suicide in normative consideration. First of all, the #deed plan is decisive. In the case of several life-ending acts by different actors (suicidal person, #assistant, #perpetrator), the question of a uniformity of the event leading to #death must be answered. The decisive factor is who ultimately controls it.

Isolated evaluations of the active actions of the #assistants or #perpetrators are prohibited in view of an overall plan aimed at bringing about #death. The particularities of each individual case must be taken into account. If the suicidal person is #conscious and refrains on his own #responsibility from taking countermeasures such as expressing the request to alert the #rescue service, he has the free #decision-making power over his fate.

Whether the decided #Insulin case really differs decisively from the #Gisela case (judgment of August 14, 1963 - 2 StR 181/63), with which also the #Gashahn (gas tap) case (judgment of August 27, 1920 - 905/20 II, JW 1921, 579) of the #Reichsgericht (#RG) had been revised, however, only becomes apparent at second glance. Indeed, here - unlike in the current #Insulin case - the active contribution of the #perpetrator of a killing on demand had not yet been completed during the period in which the female suicidal person could have saved herself. After that, she must still be able to keep it in her hands whether she wants to #die or not to guarantee impunity for the assisting person.

The #BGH again emphasizes the constitutionally guaranteed right to self-determined #death, although it was not relevant to the decision in this case. It also tends explicitly to apply the principles developed by the #Bundesverfassungsgericht (#BVerfG) on section 217 para. 1 German Criminal Code - #StGB (see BVerfGE 153, 182) to section 216 para. 1 #StGB and to interpret the latter in conformity with the #constitution. As per this, at least those cases must be excluded from the scope of application of the standard in which it is factually impossible for a person willing to #die to implement his or her own decision, made free of defects of will, to depart from life. If the person is dependent on another person to carry out the act directly leading to #death, this must not result in a counteracting of the freely formulated and declared #will to #die without a lack of knowledge and responsibility.

This suspends the #obligation to stand up (#guarantor obligation) between spouses, in a residential and cohabitation or in a doctor-patient relationship. A #doctor will not be obliged to protect the life and limb of his or her #patients, if they clearly express their wish to #die and exclusively request #assistance in #dying.

The right of #self-determination guarantees the freedom to refuse #treatment essential to #survival and to dispose of one's own life in this way. The will in this regard will be relevant even after the onset of #unconsciousness, if it is formed and implemented in a free manner without any deficit of knowledge or responsibility. Of course, no indications of a change in willing to die may arise later. This will is also relevant in the event of the occurrence of pathological conditions in the course of a suicide. A position of #guarantor due to endangering prior behavior such as the handing or injection of #medication is opposed to freely responsible decisions by the suicidal person. These include the assumption of risk for the dangerous prior behavior.

Criminal liability for failure to render assistance (section 323c para. 1 #StGB) is ruled out in this type of cases because such #assistance would not respect the wish to die and would therefore be unacceptable.