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Lawsuits in Germany

In Germany, six complaints to the prohibition on ‘businesslike’ assisted suicide are brought to the Federal Constitutional Court


Prohibition on ‘businesslike’ assisted suicide
According to article 217 of the Criminal Code, “anyone who intentionally promotes, procures or mediates the killing of another person for business purposes” makes himself liable to prosecution. He or she faces a fine or imprisonment of up to three years. 
This article is meant to prevent assisted suicide as a service and as a business model. The article expressly does not criminalize suicide assistance, which is granted on a case-by-case basis in a difficult conflict situation. Relatives or “close friends” thus remain impunity.

Previously, it was possible for seriously ill patients to commit suicide with the help of a suicide relief organisation, such as Sterbehilfe Deutschland (StHD) of ex-Justice Senator Roger Kusch. Such an organisation got the deadly substances – the patient had to take them or at least push the button for an automatic syringe. With the in 2015 established article, this practice is no longer allowed. 


Criticism of the prohibition

The crucial word in this new article is the word ‘businesslike’. This term does not mean the existence of a commercial interest, but the existence of a repeated service. According to critics, this definition of ‘business’ would imply that a medical doctor is already guilty if he provides a seriously ill patient with a deadly drug, more than once. Among other things, for this reason, the German Bar Association (DAV) considers article 217 unconstitutional.


Six constitutional complaints

Tuesday the 16th and Wednesday the 17th of April, the Federal Constitutional Court discussed on the six constitutional complaints. Complainants include three groups: 1) associations based in Germany and Switzerland offering suicide assistance, 2) seriously ill patients who wish to end their lives with the help of such an association, and 3) doctors working in outpatient or inpatient care. 

The complainants base their complaints on several grounds:

1) The patients derive a right to self-determined dying from the general right to privacy (article 2, section 1 in conjunction with article 1, section 1 of the German Constitution). As an expression of autonomous self-determination, this right also includes the use of third party support in the implementation of suicide. They claim that article 217 of the Criminal Code intervenes in this right because their chosen form of suicide assistance is subject to the criminal law and therefore no longer accessible to them. 

2) The right to die associations complain about a violation of their fundamental rights (article 9, section 1 and article 2, section 1 of the German Constitution). The new article prevents them from acting for their members in this area. Otherwise, they expose their employees to the risk of prosecution and themselves to the risk of imposing a fine or a prohibition of association.

3) The complaining physicians base their complaints on a violation of freedom of conscience and of occupation (article 4, section 1, second sentence and Article 12, section 1 of the Constitution). In particular they object to the determination and scope of the contested provision. Article 217 of the Criminal Code does not ensure sufficiently that the suicide assistance provided in individual cases remains unpunished. It is not certain whether article 217 in so far punishes treatment discontinuation and the use of palliative medicine. Therefore, article 217 prevents a well-being of the patient oriented treatment.


Other questions for the Constitutional Court

In addition, a number of issues also play a role. The Constitutional Court also tests whether people’s feelings of being a burden to their environment play a role in their desire to die. The court in Karlsruhe will “discuss in detail whether a desire to die based on this feeling is still the patient’s explicit self-determination,” Frankfurter Allgemeine writes in an analysis. ‘The realization that you should not force people to do anything, is more important in Germany than elsewhere. It has to do with the experiences from the Second World War, “says Marja Verburg of the Germany Institute at the University of Amsterdam. 

Another issue has to do with a court ruling from 2017. Individual assistance with suicide is permitted in Germany, but it is impossible to get the means to do so for seriously ill patients who want to die. In March 2017, the highest German administrative court ruled that “in very serious cases” the Ministry of Health must authorize the provision of these funds. But the ministry completely ignores that ruling, also because according to the ministry providing the deadly means would be contrary to the law of 2015.

The Constitutional Court must now make a ruling, in which all elements of the discussion are answered. It will take some months before the court orders a verdict to the complaints.