Secondo la Camera della Corte Europea dei Diritti dell’Uomo la decisione dei giudici tedeschi di dichiarare inammissibile il ricorso presentato da un marito avverso il provvedimento dell’Istituto federale per i farmaci e i dispositivi medici (Bundesinstitut für Arzneimittel und Medizinprodukte) che negava l’autorizzazione ad ottenere 15 grammi di pentobarbiturici – dose letale che avrebbe permesso alla moglie, affetta da quadriplegia, di togliersi la vita – integra una violazione dell’art. 8 della Convenzione.
Corte Europea dei Diritti dell'Uomo - Koch v. Germania: assistenza al suicidio
19 luglio 2012
Numero
ric. n. 497/09
Anno
2012
Dopo essersi vista negata la possibilità di ottenere la dose di medicinali necessaria per porre fine alla propria esistenza, la signora B.K. si era recata in Svizzera per aver accesso alle procedure di suicidio assistito.
A fronte di un ricorso, presentato dal marito, le corti tedesche (le Corti amministrative di primo e secondo grado e il Bundesverfassungsgericht) avevano escluso la sua legittimazione ad agire, sostenendo che (stralci dalla sentenza della Corte EDU):
- «[…] he could not claim to be the victim of a violation of his own rights»;
- «the right to be granted authorisation to obtain the requested dose of drugs was of an eminently personal and non-transferable nature. Even assuming that there had been a violation of his late wife’s human dignity by the Federal Institute’s refusal, according to the Federal Constitutional Court’s case-law (see “Relevant domestic law and practice” below) the refusal could not produce effects beyond her life as it did not contain elements of disparagement capable of impairing the applicant’s wife’s image in the eyes of posterity […]»;
- «he could not rely on a posthumous right of his wife to human dignity. It held that the posthumous protection of human dignity extended only to violations of the general right to respect, which was intrinsic to all human beings, and of the moral, personal and social value which a person had acquired throughout his or her own life. However, such violations were not at stake in respect of the applicant’s wife».
In data 19 luglio 2012 la Camera della Corte Europea dei Diritti dell’Uomo ha dichiarato che il rifiuto delle corti nazionali di esaminare il merito del ricorso presentato dal marito della signora B.K. ntegra una violazione del suo diritto al rispetto della vita private ex art. 8 della Convenzione.
Si riportano alcuni passi della sentenza (pdf. completo nel box download - fonte: HUDOC Database):
I. ALLEGED VIOLATION OF THE APPLICANT’S RIGHTS UNDER ARTICLE 8 OF THE CONVENTION
A. Whether there had been an interference with the applicant’s rights under Article 8
44. […] the Court considers that the criteria developed in its previous case-law for allowing a relative or heir to bring an action before the Court on the deceased person’s behalf are also of relevance for assessing the question whether a relative can claim a violation of his own rights under Article 8 of the Convention. […]
45. (a) The Court notes, at the outset, that the applicant and B.K. had been married for 25 years at the time the latter filed her request to be granted the permission to acquire the lethal drug. There is no doubt that the applicant shared a very close relationship with this late wife.
(b) The applicant has further established that he had accompanied his wife throughout her suffering and had finally accepted and supported her wish to end her life and travelled with her to Switzerland in order to realise this wish.
(c) The applicant’s personal commitment is further demonstrated by the fact that he lodged the administrative appeal jointly with his wife and pursued the domestic proceedings in his own name after her death. Under these exceptional circumstances, the Court accepts that the applicant had a strong and persisting interest in the adjudication of the merits of the original motion […].
50. […] in particular to the exceptionally close relationship between the applicant and his late wife and his immediate involvement in the realisation of her wish to end her life, the Court considers that the applicant can claim to have been directly affected by the Federal Institute’s refusal to grant authorisation to acquire a lethal dose of pentobarbital of sodium.
51. […] the Court was “not prepared to exclude” that preventing the applicant by law from exercising her choice to avoid what she considered would be an undignified and distressing end to her life constituted an interference with her right to respect for private life as guaranteed under Article 8 § 1 of the Convention (Pretty, cited above, § 67).
52. In the case of Haas v. Switzerland, the Court further developed this case-law by acknowledging that an individual’s right to decide in which way and at which time his or her life should end, provided that he or she was in a position freely to form her own will and to act accordingly, was one of the aspects of the right to respect for private life within the meaning of Article 8 of the Convention (see Haas, cited above, § 51). Even assuming that the State was under an obligation to adopt measures facilitating a dignified suicide, the Court considered, however, that the Swiss authorities had not violated this obligation in the circumstances of that specific case (Haas, cited above, § 61).
53. The Court finally considers that Article 8 of the Convention may encompass a right to judicial review even in a case in which the substantive right in question had yet to be established (compare Schneider v. Germany, no. 17080/07, § 100, 15 September 2011).
54. Referring to the above considerations, the Court considers that the Federal Institute’s decision to reject B.K.’s request and the administrative courts’ refusal to examine the merits of the applicant’s motion interfered with the applicant’s right to respect for his private life under Article 8 of the Convention […].
B. Compliance with Article 8 § 2 of the Convention
65. […] The Court observes, at the outset, that both the Administrative Court and the Administrative Court of Appeal refused to examine the merits of the applicant’s motion on the ground that he could neither rely on his own rights under domestic law and under Article 8 of the Convention, nor did he have standing to pursue his late wife’s claim after her death. While the Cologne Administrative Court, in an obiter dictum, expressed the opinion that the Federal Institute’s refusal had been lawful and in compliance with Article 8 of the Convention […], neither the Administrative Court of Appeal nor the Federal Constitutional Court examined the merits of the original motion.
66. The Court concludes that the administrative courts – notwithstanding an obiter dictum made by the first instance court – refused to examine the merits of the claim originally brought before the domestic authorities by B.K. […].
70. […] Only four States examined allowed medical practitioners to prescribe a lethal drug in order to enable a patient to end his or her life. It follows that the State Parties to the Convention are far from reaching a consensus in this respect, which points towards a considerable margin of appreciation enjoyed by the State in this context (also compare Haas, cited above, § 55). […]
71. Having regard to the principle of subsidiarity, the Court considers that it is primarily up to the domestic courts to examine the merits of the applicant’s claim. […].
72. It follows from the above that the domestic courts’ refusal to examine the merits of the applicant’s motion violated the applicant’s right to respect for his private life under Article 8 in of the Convention […].
II. ALLEGED VIOLATION OF THE APPLICANT’S WIFE’S RIGHTS UNDER ARTICLE 8 OF THE CONVENTION
81. […]It follows that the applicant does not have the legal standing to rely on his wife’s rights under Article 8 of the Convention because of the non-transferable nature of these rights.
82. […] the Court concludes that the applicant’s complaint about a violation of his late wife’s rights under Article 8 of the Convention is to be rejected under Article 34 as being incompatible ratione personae with the provisions of the Convention […].
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the applicant’s complaint about a violation of his wife’s Convention rights inadmissible;
2. Holds that there has been a violation of Article 8 of the Convention in that the domestic courts refused to examine the merits of the applicant’s motion […].
Pubblicato il: Giovedì, 19 Luglio 2012 - Ultima modifica: Venerdì, 31 Maggio 2019
