Assisted dying and Article 2 ECHR: Mortier

Further to the news that the Royal College of Physicians is to poll its members on assisted dying, the issue is also likely to come before the European Court of Human Rights.

In Mortier c Belgium (Requête no 78017/17) ECHR [French only], the applicant, Tom Mortier, is pursuing the case of the euthanasia of his mother, who was suffering from chronic depression, which was carried out by Professor Distelmans, an oncologist, without the knowledge of Mr Mortier and his sister. The Federal Commission of Control and Evaluation charged with verifying compliance with the procedure and the conditions laid down by the Law of 28 May 2002 on Euthanasia did not discover any infringement with the law. The Commission’s decision is not public.

On 16 February 2014, Mr Mortier lodged a complaint against Professor Distelmans with the College of Physicians of Flemish Brabant and Brussels but was not informed of the outcome of his complaint in view of the confidentiality of the proceedings. He also lodged a criminal complaint against X on 4 April 2014 which was annulled by the Crown prosecutor on 8 May 2017 for lack of evidence.

Relying on Article 2 of the Convention, he alleges that the State failed in its positive obligation to protect the life of his mother insofar as the procedure provided for by the Law of 28 May 2002 was not complied with and that the guarantees it provided were wholly illusory in this case. He claims that there was a violation of the procedural aspect of Article 2 ECHR (right to life) because of the lack of a thorough and effective investigation into the facts that he alleged. HE complains, inter alia, that the Commission was not independent, in that Professor Distelmans was also co-chairman of the Commission and that, a few weeks before his death, his mother had donated EUR 2,500 to the Life End Information Forum, of which Professor Distelmans was the co-founder. Relying on Article 8 (respect for private and family life), he also alleges that, as a result of the violation of his mother’s right to life, the right to respect for his own mental integrity and family life was also disregarded.

The Second Section ECHR has now posed the following questions to the parties:

  1. Has the applicant exhausted domestic remedies within the meaning of Article 35 §1 of the Convention?
  2. Has the right to life of the applicant’s mother as guaranteed by Article 2  been respected? In particular, has the State complied with its preventive obligations under that provision?
  3. Has an effective investigation in accordance with the requirements of Article 2  been conducted in this case?
  4. Does a separate question arise in respect of the applicant’s right to respect for his private and family life as guaranteed by Article 8? If so, has this provision been misunderstood?

According to media reports, the ECtHR has agreed that the application can proceed further. The judgment will presumably be handed down at some point in about 2020.

Cite this article as: Frank Cranmer, "Assisted dying and Article 2 ECHR: Mortier" in Law & Religion UK, 15 January 2019, https://lawandreligionuk.com/2019/01/15/assisted-dying-and-article-2-echr-mortier/

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