Were the euthanasia and assisted suicide a violation of the right to freedom of expression?

The author S.L., a Danish national, is a retired physician, and member of an association in favor of euthanasia, was convicted of two counts of assisted suicide, and one count of attempted assisted suicide under Article 240 of the Danish Penal Code. He was sentenced to 60 days’ imprisonment, suspended. Maintaining that he had merely provided general advice about suicide, the author complained that his conviction was in breach of Article 10 of the Convention. S.L. worked as a physician until 2010.

S.L. founded an association called “Physicians in Favor of Euthanasia”, for physicians aiming to have euthanasia made lawful in Denmark. In pursuance of this aim, the applicant prepared a guide “Medicines suited for suicide”, available on the internet. The guide combined a detailed procedure for how to commit suicide, including a list of about 300 common pharmaceuticals suited to committing suicide, and a description of the dose required to go through with the suicide, possible combinations of pharmaceuticals and caveats about the various pharmaceuticals. The guide also provided advice on how a person could be assured of death by taking the recommended doses of medicines, including by combining different pharmaceuticals or by taking a full dose of a pharmaceutical in combination with a plastic bag over the head and a rubber band around the neck. It was lawful under Danish law to publish such a guide on the Internet or elsewhere.

Based on a radio interview with S.L. in 2017 in which S.L. stated, inter alia, that had assisted a patient with a terminal pulmonary condition in dying by administering the pharmaceutical Fenemal, the Patient Safety Authority reported the author to the police for violation of section 240 of the Penal Code, prohibiting assisted suicide. The author’s doctor’s license to practice has been withdrawn, with the consequence, among other things, that the author could no longer prescribe medications for himself or others.
The Supreme Court sentenced S.L. to 60 days’ imprisonment, suspended. It was taken into account as an aggravating circumstance that to a certain extent, the acts were committed in a systematic manner and that S.L. had been charged on three counts, the last act being committed after he had been provisionally charged by the police for violation of section 240 of the Penal Code. It was considered a mitigating circumstance that S.L. was almost 78 years old.
Assisted suicide has been criminalized since 1930. Section 240 of the Penal Code was given its current wording by Act No. 218 of 31 March 2004.
The issue of euthanasia and assisted suicide has regularly been the subject of public and political debate in Denmark, but so far, there has not been a political majority in Parliament in favor of amending section 240 of the Penal Code.
S.L. complained that the Supreme Court’s judgment breached S.L.’s right to freedom of expression guaranteed by Article 10 of the Convention.
The parties did not dispute that the applicant’s conviction was an interference with his rights to freedom of expression. The ECHR also found that such interference was intended by law (Article 240 of the Criminal Code).
The ECHR emphasized that since 1930 euthanasia has been illegal in Denmark, and accordingly the legislation provided for imprisonment for committing euthanasia. However, the ECHR is called to find out not whether the criminalization of euthanasia is justified, but only whether it was it is “necessary in a democratic society.” In this aspect, the ECHR noted the obligation authorities to protect vulnerable members of society.
The ECHR emphasized the absence of a right to euthanasia in the Convention.
The ECHR took into account the conclusions of the Supreme Court and saw no reason not to agree with them agree, in particular, that the applicant’s advice, although based on his handbook, pushed one of the persons to commit suicide. Although the publication of the guide was legal, the matter was based on specific advice to individuals. The ECHR concluded that neither the conviction nor the sentence in this case were excessive.
In general, the reasons given by the courts when making their decisions are health protection, morals and rights of others – were legitimate, and the authorities acted within their wide scope discretion (“freedom of discretion”) vested in this particular case.
ECHR decided that there has been no violation of Article 10 of the Convention.

17. November 2023

HUDOC 15136-20