Analysis: the Mortier case: the ECtHR assessing the Belgian euthanasia law for the first time

In a judgment delivered on Tuesday, 22/10/2022, the European Court of Human Rights considers that Belgium violated the right to life of a patient euthanized because of depression in 2012.

This case of Mortier v. Belgium, named after the applicant, the son of the euthanized person, was the first case in which the European Court of Human Rights (ECtHR) was called upon to assess the compatibility of euthanasiaalready practiced with the European Convention on Human Rights (ECHR). Tom Mortier alleged a violation of his mother's right to life, protected by Article 2 of the Convention, and of his right to respect for his private and family life, protected by Article 8 of the Convention.

While considering that the conditions laid down by the Belgian law on euthanasia are not contrary to the Convention, the Court nevertheless considers that, as regards the euthanasia of the applicant's mother, the a posteriori control was ineffective. As a result, the judges unanimously concluded that Belgium had violated the right to life, as the authorities had not taken the necessary positive measures to protect it.

The ECHR does not confer a right to euthanasia but allows it under conditions

The Court recalls its earlier case law according to which there is no right to die with the assistance of a third party or the State within the meaning of the Convention (§ 119, see Pretty v. the United Kingdom and Lings. v. Denmark). Conversely, in the view of the majority, the right to life as enshrined in the Convention does not prohibit the practice of euthanasia (§ 138).

Judge Serghides, in his partially dissenting opinion, departs from this evolving interpretation and considers that 'if the drafters of the Convention had wanted to include euthanasia in the list of exceptions to the right to life, they would have included it' in the Convention, which is not the case.

In the present case, the Court considers that the practice of euthanasia as decriminalized by Belgium may be considered compatible with the Convention, subject to compliance with three conditions, to be verified in each case (§ 141):

1° "the existence in domestic law and practice of a legislative framework relating to acts before euthanasia under the requirements of Article 2 of the Convention"

2° "compliance with the legislative framework established in each particular case"

3° "the existence of a posteriori control offering all the guarantees required by Article 2 of the Convention"

The Belgian legislative framework is considered compliant with the ECHR, including euthanasia in cases of depression.

In the first place, according to the majority, the conditions mentioned in the Belgian law are compatible with the right to life. The Court also takes into account the additional requirements laid down when a patient requests euthanasia on account of mental and non-physical suffering, while his death is not expected shortly (§ 148-153). The Court cites, in particular, the one month required between the formal request for euthanasia and the act of euthanasia, as well as the requirement relating to the consultation of an additional doctor, independent of both the patient and the attending physician, and who must be expert in the pathology of the patient (§ 151).

The euthanasia at issue is considered to comply with the legal framework

On the second criterion, the Court concludes that there has been no violation of the legal framework in the case of euthanasia of the applicant's mother.

The applicant alleged, however, that his mother donated to the pro-euthanasia association LEIF ^([1]), whose president was none other than Wim Distelmans, the doctor who euthanized her a few days later.

The majority of the judges simply indicated, without providing further arguments in this regard, that €2500 was not an amount likely to demonstrate a conflict of interest, and that the donation occurred after the request for euthanasia (§ 161).

As to the lack of independence of the two doctors consulted, the Court sees no problem in the fact that they were, like Professor Distelmans, members of the militant association LEIF. Indeed, according to the Court, many doctors have undergone training at LEIF, "the purpose of which is to ensure a dignified end of life", according to the judgment.

In that regard, it is worth asking how the ECtHR describes the LEIF association, which in fact campaigns continuously for the extension of the Belgian law on euthanasia, in these terms.

The follow-up is considered ineffective and therefore contrary to the patient's right to life

While the Court validates compliance with the first two criteria, this is not the case for the third criterion relating to the a posteriori control of euthanasia.

In the present case, the Court notes that Professor Distelmans, who performed euthanasia on the applicant's mother, sat on the Federal Commission for the Control and Evaluation of Euthanasia, as Vice-President, including at the meeting at which the lawfulness of the litigious euthanasia was examined, based on the statement which he had supplemented.

In the Court's view, "the system of a posteriori control established in the present case" does not offer a sufficient guarantee of independence (§ 178).

The fact that the physician sitting on the Commission must "remain silent" during the examination of the first (anonymous) part of the declaration of euthanasia that he or she made is in no way a guarantee, the Court ruled.

To remedy this breach, the Court suggests that the number of members composing the Commission be increased, to prevent the physician who performed the euthanasia from sitting at the meeting at which the declaration relating to euthanasia he made will be reviewed.

Such a suggestion by the Court is not only surprising but, more fundamentally, ineffective, since as a significant proportion of the doctors composing the Control Commission regularly perform euthanasia. To be implemented, this proposal would involve excluding these doctors almost systematically from any meeting.

As regards the two criminal investigations that were opened at the Belgian Courts after Tom Mortier challenged the legality of his mother's euthanasia, but were only concluded after 2 and 7 years respectively, the Court notes the lack of effectiveness of the first (moreover acknowledged by the Belgian Government), but notes that the second has "been sufficiently thorough".

The lack of independence of the Control Commission and the duration of the criminal investigation led the Court to conclude that there had been a violation of Article 2 of the ECHR, relating to the right to life (§ 184-185).

The mother's right to autonomy is privileged to the detriment of the son's right to respect for family life

Finally, the applicant also considered that the Belgian State's failure to protect his mother's life constituted a violation of Article 8 of the Convention in terms of the right to respect for his family life.

The Court considers, however, that, in balancing the mother's right to autonomy with the applicant's right to family life, Belgium could legitimately privilege the mother's right to autonomy, who did not wish to exchange views with her son about his forthcoming euthanasia.

Belgian law requires the doctor to ensure that the patient has been able to speak with his relatives only to the extent that the latter has expressed the wish to do so. In the present case, the doctors had repeatedly suggested that the patient contact her children.

Finally, the Court insisted on respect for confidentiality and medical secret, and concluded that there had been no violation of Article 8 of the ECHR (§ 207).

In their dissenting opinions, Justices Serghides and Elósegui oppose this "purely individualistic vision" of the concept of autonomy of the person, without taking into account the patient's relationships with his relatives, family, and friends, and the impact of euthanasia on them.

Conclusion: A contradictory position of the Court about the practice of euthanasia in Belgium

The Court's judgment in Mortier v. Belgium is important as it is the first decision on the decriminalization of euthanasia in Belgium in the context of more and more scientific studies pointing to the lack of an efficient follow-up (see IEB news 09/02/2021).

From the Court's twofold finding, however, a flagrant contradiction emerges. On the one hand, the Strasbourg judges consider that the conditions laid down by Belgian law do not pose any difficulty; on the other hand, the Court recognizes the absence of effective posterior control in the present case.

However, the shortcomings pointed out by the Court are recurrent, since they in reality concern all cases of euthanasia in which doctors who are members of the Control Commission (many of whom regularly perform euthanasia) are involved.

Although the judgment insists on the absence of incompatibility per se of the Belgian framework on euthanasia with the ECHR, the specific shortcomings which it raises testify in this case to a properly systemic problem as regards the lack of impartial and effective control of the legality of euthanasia (see, in this respect, paragraph 4 of Judge Elósegui's partially dissenting opinion).

The fact that the Court recognizes the lack of effectiveness of the posterior control makes the criticisms raised about the recurrent non-compliance with the conditions laid down by the Belgian law on euthanasia even more fundamental.

How, in fact, can those conditions be genuinely complied with when the review of those conditions by the Control Commission and the judicial authorities is considered to be ineffective by the Court?

Among these conditions, the possibility of considering a mental illness – in this case, depression – as incurable is the subject of many debates within the medical world. This is evidenced by the difference in assessment in this regard between, on the one hand, the doctors who followed patient Mortier for years and, on the other hand, the LEIF doctors involved in her euthanasia.