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Lawyer and tax consultant Dr. Dr. Bernd Josef Fehn

28. November 2022

The #Bundesgerichtshof (#BGH) has made on 28.06.2022 another remarkable decision on the unpunishable #assistance to #suicide (Az.: 6 StR 68/21), namely for the case of being dependent of the person willing to die on actions by another person directly leading to #death. It clarifies completely rightly that the #Sterbewillige with strange assistance kills itself, if it retains until last the free decision over its fate. 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 evade its effects or to terminate it, in order to affirm a non-punishable #assistance to #suicide in normative consideration. Decisive is first of all the #plan of action. In the case of several life-ending acts by different actors (#suicide, #assistance or #perpetrator), the question of a uniformity of the event leading to death is decisive. What is decisive 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 #suicident is in #consciousness and on his or her own responsibility refrains from taking countermeasures such as expressing the request to alert the #rescue service, he or she has the free #decision-making power over his or her own fate.

Whether the decided #Insulin case really differs decisively from the #Gisela case (judgment of 14.08.1963 – 2 StR 181/63), with which also the #Gashahn case (judgment of 27.08.1920 – 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 #suicide could have saved herself. After that, the #suicident must still be able to keep it in her hands whether she wants to #die or not, in order to guarantee impunity for the assisting person.

The #BGH emphasizes again the constitutionally guaranteed right to self-determined #death, although it was not relevant in the present case. It is also expressly inclined to apply the principles developed by the #Federal Constitutional Court (#BVerfG) with regard to § 217 (1) StGB (see BVerfGE 153, 182) to § 216 (1) StGB and to interpret the latter in conformity with the constitution. According to 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 it is dependent on the fact that another person carries out the action leading directly to the #Death, this may not entail a Konterkarierung of the without knowledge and responsibility deficit freely conceived and explained dying will.

This suspends the #obligation to maintain (#guarantor obligation) between spouses, in a residential and #living community or in a #doctor-#patient relationship. A #physician does not have to #protect the life and limb of his #patients if they clearly express their #wish to die and exclusively ask to be accompanied in #death.

The #right of self-determination guarantees the freedom to refuse #curative treatments essential for survival and to dispose of one’s own life in this way. The will in this regard is respectable even after the onset of #unconsciousness if it is freely formed and implemented without any deficit of knowledge or responsibility. Of course, no indications of a change in the will 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 guarantor position because of endangering previous behavior (#Ingerenz) such as the handing or injecting of medications is opposed to freely responsible decisions of the #Suizidenten. These include the assumption of risk for the dangerous prior behavior.

Criminal liability for failure to render assistance (Section 323c (1) of the German Criminal Code) is ruled out in such cases, because such assistance would not respect the wishes of the patient and would therefore be unreasonable.