The decision of a depressed woman to undergo euthanasia. National legislation on euthanasia compatible with the ECHR. Violation of the procedural part of Article 2 of the ECHR due to defective procedures
JUDGMENT
Mortier v. Belgium 04.10.2022 (app. no. 78017/17)
SUMMARY
The case concerned the death by euthanasia of the applicant’s mother, without the applicant or his
sister having been informed. The applicant’s mother had not wished to inform her children of her
euthanasia request in spite of the repeated advice from the doctors.
Relying on Article 2 (right to life) of the European Convention on Human Rights, Mr Mortier alleged
that the State had failed to fulfil its obligations to protect his mother’s life, since the statutory
procedure for euthanasia had allegedly not been followed in her case. Relying on Article 13 (right to
an effective remedy) of the Convention, he complained about the lack of an in-depth and effective
investigation into the matters raised by him. The Court decided to examine the complaints under
Article 2 alone.
Relying on Article 8 (right to respect for private and family life) of the Convention, he alleged that in
failing to effectively protect his mother’s right to life the State had also breached this provision.
The Court explained that the case was not about whether there was a right to euthanasia, but about
compatibility with the Convention of the act of euthanasia performed in the case of the applicant’s
mother. The Court then found as follows:
– By a majority (five votes to two), that there had been no violation of Article 2 (right to life) of the
Convention on account of the legislative framework governing the pre-euthanasia acts and
procedure. The Court found that the statutory provisions on euthanasia constituted in principle a
legislative framework that specifically ensured the protection of the right to life of the patients as
required by Article 2 of the Convention.
– By a majority (five votes to two), that there had been no violation of Article 2 (right to life) on
account of the conditions in which the act of euthanasia had been carried out in the case of the
applicant’s mother. The Court took the view that it could not be said from the evidence before it
that the act in question, performed in accordance with the established statutory framework, had
breached the requirements of Article 2 of the Convention.
– Unanimously, that there had been a violation of Article 2 (right to life) on account of the posteuthanasia
review procedure in the present case. The Court found that the State had failed to fulfil
its procedural positive obligation, on account of the lack of independence of the Federal Board for
the Review and Assessment of Euthanasia and the length of the criminal investigation in the case.
– By a majority (six votes to one), that there had been no violation of Article 8 (right to respect for
private and family life). The Court found that the doctors assisting the applicant’s mother had done
everything reasonable, in compliance with the law, their duty of confidentiality and medical secrecy,
together with ethical guidelines, to ensure that she contacted her children about her euthanasia
request.
PROVISONS
Article 2
Article 8
PRINCIPAL FACTS
The applicant, Tom Mortier, is a Belgian national who was born in 1976 and lives in Rotselaar
(Belgium).
Mr Mortier’s mother had been suffering from chronic depression for about 40 years. In September
2011 she consulted Professor D. and informed him of her intention to have recourse to euthanasia.
At the end of the interview, the doctor concluded that she was severely traumatised, that she had a
serious personality and mood disorder and that she no longer believed in recovery or treatment. He
agreed to become her doctor under the Euthanasia Act.
Between 2011 and 2012 Mr Mortier’s mother continued to consult Professor D. and other doctors in
connection with the euthanasia procedure. The doctors involved in this procedure suggested on
several occasions that she contact her children to inform them of her request, but she refused.
However, in January 2012 she sent them an email informing them of her wish to die by euthanasia.
Her daughter replied that she respected her mother’s wishes. According to the case file, her son did
not reply. Subsequently, she continued to meet the doctors and to reiterate her wish not to call her
children, explaining that she wanted to avoid any further difficulties in her life and feared that her
euthanasia would be delayed. However, she wrote a farewell letter to her children on 3 April 2012 in
the presence of a person of confidence.
Finally, the act of euthanasia was performed in a public hospital by Professor D. on 19 April 2012,
and the applicant’s mother died in the presence of a few friends.
The following day, Mr Mortier was informed by the hospital that his mother had died by euthanasia.
He sent a letter to Professor D. stating that he had not had the opportunity to bid farewell to her
and that he was in pathological mourning. He said that he had appointed a doctor to examine his
mother’s medical records. The doctor later noted, among other things, that the declaration of
euthanasia was not in the file.
In June 2013, as part of its automatic review, the Federal Board for the Review and Assessment of
Euthanasia – of which Professor D. was co-chair – concluded that the euthanasia of Mr Mortier’s
mother had been carried out in accordance with the conditions and procedure laid down in the
Euthanasia Act.
In October 2013 Mr Mortier requested a copy of the document recording the euthanasia from the
Board, which, in March 2014, refused to provide it on the ground that it was prohibited from
disclosing it by law.
In February 2014 Mr Mortier lodged a complaint against Professor D. with the Medical Association.
Owing to the confidentiality of the proceedings, he was not informed of the outcome of his
complaint.
In April 2014 Mr Mortier lodged a criminal complaint against persons unknown concerning the
euthanasia of his mother. It was first discontinued in 2017 for insufficient evidence. Then, in May
2019, the judicial authorities reopened a criminal investigation into the circumstances surrounding
the euthanasia. The appointed expert noted, in particular, that neither the declaration of euthanasia
submitted to the Board or its assessment could be found in the file. The investigation was finally
closed in December 2020, as the prosecutor’s office had found that the euthanasia of the applicant’s
mother had complied with the substantive conditions prescribed by law and had been carried out in
accordance with the statutory requirements.
THE DECISION OF THE COURT…
Article 2
The Court explained that the present case did not concern the question whether there was a right to
euthanasia, but rather the compatibility with the Convention of the act of euthanasia performed in
the case of the applicant’s mother. It further stated that the applicant’s complaints had been
examined from the perspective of the State’s positive obligations to protect the right to life, taking
account of the following points.
(1) Legislative framework concerning acts prior to euthanasia
The Court observed that the decriminalisation of euthanasia in Belgium was subject to the
conditions strictly regulated by the Euthanasia Act, which provided for a number of substantive and
procedural safeguards. The legislative framework put in place by the Belgian legislature concerning
pre-euthanasia measures ensured that an individual’s decision to end his or her life had been taken
freely and in full knowledge of the facts. In particular, the Court attached great importance to the
existence of additional safeguards in cases, such as that of the applicant’s mother, which concerned
mental distress and in which death would not occur in the short term, and to the requirement of
independence of the various doctors consulted, with regard both to the patient and to the doctor
treating him or her. Lastly, the Euthanasia Act had been the subject of several reviews by the higher
authorities, both prior to enactment (by the Conseil d’État) and subsequently (by the Constitutional
Court), and those bodies had found, following an in-depth analysis, that it remained within the limits
imposed by Article 2 of the Convention. Consequently, as regards the acts and procedure prior to
euthanasia, the provisions of the Euthanasia Act constituted in principle a legislative framework
capable of ensuring the protection of the right to life of the patients concerned, as required by
Article 2 of the Convention. There had therefore been no violation of Article 2 under this head.
(2) Compliance with legal framework in present case
The Court observed that the applicant’s mother had undergone euthanasia some two months after
her formal request for euthanasia and after Professor D. had ascertained that her request had been
made of her own free will, in a repeated and considered manner, and without external pressure, and
that she was in a terminal medical situation, expressing her constant and intolerable mental distress
which could no longer be alleviated and which resulted from a serious and incurable illness. That
conclusion had subsequently been confirmed by the criminal investigation conducted by the judicial authorities, which had decided that the euthanasia had indeed complied with the substantive and procedural conditions prescribed by the Euthanasia Act. Consequently, the Court considered that it
did not appear from the material before it that the act of euthanasia carried out on the applicant’s
mother, in accordance with the established legal framework, had been in breach of the
requirements of Article 2 of the Convention. There had therefore been no violation of Article 2
under this head.
(3) Post-euthanasia review
The Court noted that two reviews had been carried out to verify whether the euthanasia in question
had been in accordance with the law.
As regards the automatic review carried out by the Federal Board, the applicant alleged that the
Board could not give an independent opinion on the lawfulness of his mother’s euthanasia in so far
as the case involved its co-chair, Professor D., who had not withdrawn from examining the case. The
Government submitted that the examination had been conducted impartially on the basis of the
second part of the registration document, which could not contain any names. If the euthanasia
registration document had been completed by a doctor present, he or she would never take part in
the discussion and would not influence it in any way. With due respect for ethical rules and
principles, the doctor would remain silent when the Board was examining a case which concerned
him or her in some way or another.
The Court noted that in the present case the Board had verified, solely on the basis of the second
part of the document, that is to say the anonymous part, whether the euthanasia carried out on the
applicant’s mother had been in accordance with the law. The Board had concluded that the
euthanasia had taken place in accordance with the statutory conditions and procedure. It therefore
appeared that Professor D. had not withdrawn and there was no evidence to show that the practice
described by the Government, the fact of a doctor involved in the euthanasia at issue remaining
silent, had been followed in the present case. It reiterated that the machinery of review put in place
at national level to determine the circumstances surrounding the death of individuals in the care of
health professionals had to be independent.
While the Court understood that the statutory withdrawal procedure sought to preserve the
confidentiality of the personal data contained in the registration document and the anonymity of
those involved, it nevertheless considered that the system put in place by the Belgian legislature for
the review of euthanasia, solely on the basis of the anonymous part of the registration document,
did not satisfy the requirements under Article 2 of the Convention. The procedure under section 8 of
the Euthanasia Act did not prevent the doctor who performed the euthanasia from sitting on the
Board and voting on whether his or her own acts were compatible with the substantive and
procedural requirements of domestic law. The Court considered that the fact of leaving it to the sole
discretion of the member concerned to remain silent when he or she had been involved in the
euthanasia under review could not be regarded as sufficient to ensure the independence of the
Board. While being aware of the autonomy enjoyed by States in this sphere, the Court found that
this defect could have been avoided and confidentiality nevertheless safeguarded, for example if the
Board had a larger number of members than the number sitting in each individual case. This would
ensure that a member of the Board who had performed the euthanasia in question could not
participate in its examination.
Consequently, and having regard to the crucial role played by the Board in the subsequent review of
euthanasia, the Court considered that the machinery of review applied in the present case had not
guaranteed its independence, irrespective of any actual influence Professor D. might have had on
the Board’s decision concerning the euthanasia in question.
As regards the investigation, the Court noted that the first criminal investigation, conducted by the
public prosecutor’s office following the applicant’s complaint, had lasted approximately three years and one month, whereas no investigative act appeared to have been undertaken by that office. The second criminal investigation, conducted under the direction of an investigating judge after notice of
the present application had been given to the Government, had lasted approximately one year and
seven months. In the Court’s view, taken as a whole, and having regard to the lack of diligence
during the first investigation, the criminal investigation had not met the requirement of promptness
required by Article 2 of the Convention.
However, as regards the thoroughness of the investigation, the Court considered that in the course
of the second criminal investigation the authorities had taken any reasonable steps available to
them to obtain the information needed to establish the facts of the case. The investigating judge had
accordingly appointed a medical expert, who had examined the applicant’s mother’s medical file and
presented his findings in a detailed forensic report. The police had also heard evidence from
Professor D. It was on the basis of this evidence that the court had decided that there was no case to
answer. These findings were sufficient to conclude that the second investigation had been
sufficiently thorough. In so far as the State was bound by an obligation of means rather than one of
result, the fact that the criminal investigation had ultimately been discontinued, without anyone
being committed for trial, did not in itself warrant the conclusion that the criminal proceedings
concerning the euthanasia of the applicant’s mother had not satisfied the requirements of
effectiveness of Article 2 of the Convention.
Consequently, the Court found that the State had failed to comply with its procedural positive
obligation on account of the lack of independence of the Federal Board and the length of the
criminal investigation. There had therefore been a violation of Article 2 of the Convention on those
accounts.
Article 8
The Court noted that the Euthanasia Act obliged doctors to discuss a patient’s request for
euthanasia with his or her relatives only where that was the patient’s wish to do so. If that was not
the case, doctors could not contact the patient’s relatives, in accordance with their duty of
confidentiality and medical secrecy.
In the present case, in accordance with the law, the doctors involved in the euthanasia procedure
requested by the applicant’s mother had suggested to her on several occasions that she should
resume contact with her children. However, the applicant’s mother had refused each time, stating
that she no longer wanted to have contact with her children. However, at the request of her doctors,
she had at one point sent an e-mail to her children, the applicant and his sister, informing them of
her wish to undergo euthanasia. While the applicant’s sister had replied to that e-mail stating that
she respected her mother’s wishes, the applicant did not appear to have responded.
In these circumstances, stemming from the long-standing breakdown in the relationship between
the applicant and his mother, the Court considered that the doctors assisting the applicant’s mother
had done everything reasonable, in accordance with the law, their duty of confidentiality and
medical secrecy, as well as the ethical guidelines, to ensure that she contacted her children about
her request for euthanasia. The legislature could not be criticised for obliging doctors to respect the
applicant’s wishes on this point or for imposing on them a duty of confidentiality and medical
secrecy. On this last point, the Court reiterated that respect for the confidential nature of medical
information was an essential principle of the legal system of all the Contracting Parties to the
Convention and that it was essential not only to protect patients’ privacy but also to maintain their
confidence in the medical profession and health services in general. Consequently, the Court
considered that the legislation, as applied in the present case, had struck a fair balance between the
various interests at stake. There had therefore been no violation of Article 8 of the Convention.
Just satisfaction (Article 41)
The Court held that Belgium was to pay Mr Mortier 2,211.30 euros (EUR) in respect of costs and
expenses and rejected the remainder of the request for just satisfaction.
Separate opinions
Judge Elósegui expressed a joint partly concurring, partly dissenting opinion. Judge Serghides
expressed a partly dissenting opinion. These opinions are annexed to the judgment.
