Thursday, September 23

The right to die is not endorsed by the Strasbourg Court as upheld by the euthanasia law


Madrid

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Contrary to what the coalition government defends, Spain joins “the exception, not the rule” with the regulation of euthanasia and assisted suicide, approved last Thursday in the Congress of Deputies. “We are not at all in line with the majority of European countries. And we are not in line with the jurisprudence of the European Court of Human Rights, “Marta Albert Márquez, director of the Master of Bioethics at the Rey Juan Carlos University, reminds ABC.

Spain is the third country in the world -after Belgium and the Netherlands- in regulate the so-called “right to die” in its two ways: euthanasia and assisted suicide. In Luxembourg, Canada and Colombia only euthanasia is legal. In Portugal, the Constitutional Court has just overturned the rule approved on January 29. In Germany, Japan, New Zealand and some US states (Washington, Oregon, Colorado, Vermont, Montana and California) and one in Australia (Victoria) only assisted suicide is decriminalized or regulated.

“As of today we do not have a firm and valid ruling from the European Court of Human Rights that says that the wish to die is protected by Article 8. That is false”

For Marta Albert Márquez, the “legislative solution” proposed by the coalition government parties “is not at all how it wants to present itself in the explanatory memorandum” of the law. The text defends the new regulation of euthanasia «As if Spain were the last country in Europe to legalize it when it is the opposite. In addition, this professor of Philosophy of Law denounces another major error when the legislator uses in the text a ruling of the European Court of Human Rights in Strasbourg to justify the regulation of euthanasia in Spain despite the fact that it is a judgment later overturned by the court itself.

In the explanatory memorandum of the law approved this Thursday it is stated that “in the analysis of these two legal alternatives – euthanasia and assisted suicide – the doctrine of the European Court of Human Rights which, in its judgment of May 14, 2013 (case Gross vs. Switzerland), considered that it is not acceptable that a country that has decriminalized euthanasia conduct does not have developed and enacted a specific legal regime, specifying the modalities of practice of such euthanasia behaviors ”.

However, Professor Albert Márquez recalls that this sentence is annulled by the European Court of Human Rights itself after know that the ruling had been handed down one year after the death of the woman. «The legislator makes you see that the euthanasia law is something guaranteed by comparative law and by the jurisprudence of the European Court of Human Rights and that is not true. To date, we do not have a firm and valid ruling from the European Court of Human Rights that says that the wish to die is protected by Article 8. That is false, “he says.

The law does not seek the lesser evil

For the vice president of the Fundamental and Clinical Bioethics Association (ABFYC), Javier Judez, it is a problem that in the new regulation, assisted suicide does not function as a safeguard to euthanasia as it happens in the state of Victoria (Australia). «There one format is privileged over another because assisted suicide allows more social control. In our legislation it is not explained that the prescription fence does not come before the administration fence. One option is prior to the other since leaves euthanasia with fewer possibilities of use ”, Judez explains.

For this expert in Bioethics this has an important reason. In the more than twenty years that assisted suicide has been legalized in Oregon (USA), one in three patients who are prescribed the drug eventually do not use it. “That proportion has been maintained from the beginning, since 1998. Another option that you give the person when you give him control of the situation,” he says.

From a legal point of view, Borja Sánchez Barroso, Professor of Constitutional Law at the Universidad Pontificia Comillas ICAI-ICADE, emphasizes that “it is very different declare that the State cannot disproportionately prevent or limit someone from taking their own life, with or without the help of a third party (as has been said in Germany, derived from the right to free development of the personality -which does not cease to be debatable-) to pass a law that obliges the State and other public powers to end the life of a person “.

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