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International Human Rights Law

In Pretty v UK (App No 2346/03, Judgment 29 July 2002) The European Court of Human Rights found that Art 2 which protects the right to life, does not incorporate the corollary right to die. This determination has been upheld both in the European Court and in national courts since.

Critically analyse the jurisprudence in relation to the right to die and examine, in conjunction with academic commentary, whether it should be protected under the right to life.

 

POLITICAL SCIENCE

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Introduction

Mrs. Diane Pretty was a 43 year old woman with a terminal disease and needed to commit suicide, which is legal under the English common laws. She was suffering from motor neurone disease. Her body was paralysed from the neck downwards by the time of her case hearing before Strasbourg Court. Furthermore, she was feeding by a tube. She had virtually no decipherable speech. Medically, she had weeks or months to live. However, Mrs. Pretty’s mental capacity was not impaired and she had the ability to determine and make decisions. Her fear was the suffering and the lack of dignity she will endure if her medical condition was allowed to go its full course and finally kill her. Mrs. Pretty wished that she be allowed within the confines of laws to control how and when she would die. She sought this so that she could avoid the prolonged suffering and indignity. Due to her paralysis, she wanted her husband to be allowed to assist her commit suicide. Under the English Laws, it is illegal to assist in any way a person to commit suicide. Mrs. Pretty wanted the Director of Public Prosecution to make a declaration that the office will not press charges against Mr. Pretty. Her request was rejected by the DPP’s office on the grounds that it violated parts of the Suicide Act of 1961. She moved to the District Court which rejected her appeal for a review of the DPP’s decision. When the case went before the House of Lords, ruled that she was not entitled to a declaration from the DPP and as such the DPP was not contravening was any part of European Convention on Human Rights.

It is on this basis that Mrs. Pretty moved her appeal to the European Court of Human Rights. In her application, her argument was that Section 2 of the Suicide act was inconsistent with Articles 2, 3, 8 and 9 of the European Convention on Human Rights. Furthermore, she also argued that she had been discriminated against, contrary to Article 14 of the law. She claimed that she was prevented from doing something that any able person would be allowed to do, that committing suicide (Williamson, 2012).  The judges held that her arguments and wishes could not sustain any grounds as far as the sections of the law she cited were concerned. Effectively, they all rejected her claims. They said that the Articles (2, 3 &9) were not violated. In their verdict, the judges unanimously rejected all her claims. They also upheld the decisions of the English Courts and the House of Lords. The Court held that according to the laws of England, assisting one to commit suicide is a crime no matter the circumstances. The Court in its ruling held that the state has all the legal tools to consider such application and appreciate if it is indeed justifiable to act under Article 8 section 2. The Court further stated that there was an objective and reasonable justification by the state to determine those that are physically able or unable commit suicide (Brems &Lavrysen, 2013).

It is a case that brought in a lot of thinking as far as jurisprudence is concerned. Perhaps the question here is, should the right to die be protected under the right to life? English laws permit suicide, a decision that usually takes away life, but at same time criminalizes assisted suicide. According to the European convention on Human Rights and even the local English laws, one is entitled to live a life without torture, suffering or any inhumane treatment (Saunders et al., 2013). The complaint, Mrs. Pretty had a degenerating medical condition that at its best had no medical redress. She was suffering under a great deal of pain and indignity. She was afraid of going through this and sought to end her life. Unfortunately, the disease had rendered her incapable of doing this. She sought for help from her husband, a criminal act by the laws, but only needed a declaration from the DPP’s office that the husband will not be prosecuted for aiding and abetting the commission of this act. But this declaration was rejected again, using the very law. The DPP argued that the state needs to appreciate and determine if this is admissible and as such there were no grounds to ascertain that indeed, Mrs. Pretty was vulnerable. The law on assisted suicide is indiscriminate in England; it catches everyone whether weak, vulnerable or otherwise. But if it gives on the right to suicide, it does not need to tell the person how they will commit the same. Mrs. Pretty was really desperate and in my opinion, the jurisprudence should have prevailed to enable her enjoy the right of making independent decisions. It is impractical to give me the right to commit suicide but then you take away the right to make that decision on how I will go about the suicide (Jackson, 2013).

There are fundamental flaws in the existing laws and sadly these flaws find their way in courts’ decisions and rulings. In part of its ruling, the European Court acknowledged that indeed the Convention protects the sanctity of life and the quality of life that one lives. It went on to say that modern medical care and high life expectancy rate have made people to consider taking an early exit in life. The court noted that these people get here because they do not see the need to start struggling with poor health that comes with old age. It is clear here, the reasoning is that such people should be entitled to end their lives when they choose and more so, with the assistance of a trusted person if necessary. If then this is the case, then the court did not held jurisprudence as it denied Mrs. Pretty such a right that has explicitly been granted by the law that the court was purportedly implementing (Sartori, 2014). The ruling in this case proves that there is need to ensure that the right to die is protected under the right to life. If one has the right to determine how she or he chooses to live and the kind of life to live, then the law need to know that the contrary to life is death. The law might have not gotten it right, same as the courts. Death makes everyone vulnerable and as such all of us are vulnerable to death at one point in life (Hill, 2014). The law fails in its entirety to provide how one can avoid suffering and indignity when unable to commit suicide due to incapacitation like this case. Mrs. Pretty is paying a price for protecting those who are truly vulnerable. There is no way a law can expose the vulnerable, it needs to protect them in the best way it can (Sanders et al., 2013).

Conclusion

From this case, it is clear that the right to die needs to be protected. This right cannot be left to the interpretation of judges in the courts who are applying it as rigid as it should be. A law formed by people needs to protect them and needs to be flexible enough to address some insufficiencies that the framers might not have factored in their own wisdom. A law is not a scientific concept that should remain constant. Consider Mr. A who instructs his doctor to switch off a ventilator machine so as he can die and the case of Mrs. Pretty, where just a cyanide pill placed on the tongue will be enough to take her to that permanent rest she had wished to be helped to get. Again, many cases have proved that whether it is criminalize or not, there is need for the law to be relooked at as most of those who wish to die have expressly stated so and wished that they be assisted if incapacitated (McCrudden, 2012). If this right is protected, then the vulnerable will not be so desperate to seek for the protection of the state legal institutions and offices. It will save time and resources to going into litigation from the local judicial mechanism to seeking redress from the International Courts like the European Human Rights Court. There legal system needs to ensure that at no point shall there be lacuna in the law, a situation that has the potential to play out like this case. A legal lacuna needs to be fixed at the court so that all interested parties in a legal dispute don’t feel unsatisfied with the court’s decision or ruling.

Bibliography

Brems, E., & Lavrysen, L., 2013, Procedural Justice in Human Rights Adjudication: The European Court of Human Rights. Human Rights Quarterly, Vol.35, No.1, pp.176-200.

Hill, M., 2014, Freedom of religion: recent developments in the jurisprudence of the United Kingdom and the European Court of Human Rights. Dutch Reformed Theological Journal= Nederduitse Gereformeerde Teologiese Tydskrif, Vol.55, No.1 & 2, pp.81-115.

Jackson, A., 2013, ‘Thou Shalt Not Kill; But Needs Not Strive Officiously to Keep Alive’: Further Clarification of the Law regarding Mercy Killing, Euthanasia and Assisted Suicide. The Journal of Criminal Law, Vol.77, No.6, pp.468-475.

McCrudden, C. (2012). Using Comparative Reasoning in Human Rights Adjudication: The Court of Justice of the European Union and the European Court of Human Rights

Sartori, D., 2014, THE CATANIA PAPERS: Gap-Filling and Judicial Activism in the Case Law of the European Court of Human Rights. Tul. Eur. & Civ. LF, 29, 47-217.

Saunders, C., Rootes, C., & Millns, S., 2013, Supranational rights litigation, implementation and the domestic impact of Strasbourg Court jurisprudence: A case study of the United Kingdom. Privzeto, Vol.15, 2013.

Williamson, E., 2012, Right to Life of the Foetus under the European Convention of Human Rights, The. Warwick Student L. Rev., Vol.2, No.32.Compared. Cambridge yearbook of European legal studies, Vol.15, No1, pp.383-415.

 

 

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