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Four applicants want to annul criminal responsibility for “murder on demand” and “participation in suicide”. In their questions at the beginning of the trial, the judges focus mainly on the second provision.
The Constitutional Court (VfGH) deals today, Thursday, with the prohibition of euthanasia. Both supporters and opponents of liberalization are questioned in a public hearing. Four applicants, including two seriously ill and a doctor, want to quash the criminal liability of “killing on demand” and “participating in suicide”. The ban is upheld by government officials.
Unlike Germany, Austria does not only punish “murder on demand”. Anyone who supports others in suicide must also wait six months to five years in prison. In the questions posed by the responsible speaker Christoph Herbst at the beginning, the judges focus mainly on the second provision, that is, the prohibition of “participating in suicide”. Therefore, “kill on demand” should not be at the center of public bargaining.
How could abuse be avoided in any other way?
Judges want to know, among other things, if people who organize a trip to a foreign euthanasia organization for someone who is willing to die are also crimes. In addition, they question whether assistance in suicide should be evaluated differently from “induction” to suicide, which is also threatened with the same penalty. Judges also want to know how abuse can be avoided other than through a criminal prohibition.
The government raised the “potential for abuse” of a liberalized euthanasia scheme in its statement to the Constitutional Court against repeal. The government argues that the ban on active euthanasia serves to protect the lives of others and arises from the state’s duty to protect vulnerable people. It is represented in the proceedings, among others, by the head of the constitutional service of the Foreign Ministry, Albert Posch, as well as by the heads of the justice section Georg Kathrein and Christian Pilnacek.
On the other hand, the applicants see that the ban on euthanasia violates several provisions of basic rights, including the right to family life, freedom of religion and respect for human dignity. Two of the four complainants justify their request with serious and incurable diseases. Another applicant is a physician and argues that he is often faced with requests for assistance from patients in the event of suicide, but cannot comply without exposing himself to criminal and disciplinary consequences.
By the way, the crimes now being challenged by the Constitutional Court often do not end up in court: Since 2012, Statistics Austria has recorded only two convictions for “involvement in suicide” and no convictions for “murder on demand”. One of the plaintiffs, however, points out that he himself had already been convicted of having supported his seriously ill wife in suicide.
Government officials point to existing opportunities
Government representatives and their informants defended the existing legal situation on Thursday. “We have enough opportunities to guarantee a dignified death in our hospice units and other wards,” said hospice specialist Herbert Watzke. The plaintiffs rejected this and criticized in particular that those who were willing to die were offered “back doors” instead of assisted suicide.
Watzke explained that it is already possible to refuse treatment, for example to refuse antibiotics in case of an additional infectious disease. “Virtually all patients with advanced diseases are prone to infections. You can take this opportunity to leave life with dignity with our care, “said the doctor. In the case of severe shortness of breath, there is the option of “sedation therapy.”
The head of the criminal law section, Pilnacek of the Ministry of Justice, had previously referred to the possibility of an advance directive, a health care power of attorney and medical law. There (paragraph 49a) it is regulated that pain therapy can also be used in the dying if it accelerates death. In short, this provides “a fair balance between the interests of protecting life and those derived from Article 8 of the ECHR, that is, autonomy and the protection of the right to privacy.”
“Principle that you must not kill”
Niola Göttling, who suffers from multiple sclerosis and the person who provided information to applicants awaiting euthanasia liberalization, did not want to accept this. “There are back doors, that’s true,” she said. “I just have to get an infection, then go to the hospital and refuse treatment.” But her legs are already paralyzed and if the paralysis also affects her arms for years to come, she will have to be wrapped and fed. Therefore, she does not want a “back door”, but the opportunity to die “because my life is degrading”.
The plaintiff’s attorney, Wolfram Proksch, did not accept the reference to advanced pain therapy. He criticized the fact that, according to the state of medicine, only two percent of the dying actually suffer pain. In fact, due to the medicine of two kinds, a quarter die of pain.
He had previously noted that criminal liability for “participation in suicide” had been created by austrofascism, for religious and moral reasons. With due respect for the beliefs of religious societies, such a moral assessment cannot give rise to criminal responsibility for those affected, criticized the lawyer.
Former SPÖ politician Elisabeth Pittermann opposed this. She is not religious and she certainly does not believe in eternal life. But she grew up with the crimes of National Socialism and so there had to be an “inhibition to kill.” “It must be a principle that one should not kill.” This should especially apply to doctors, because there is the risk of massive abuse: “Who has more opportunities to kill without attracting attention than doctors”.
(WHAT)
