1 1 September 2009

FIFTH SECTION

Application no. 497/09 by Ulrich KOCH against Germany lodged on 22 December 2008

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Ulrich Koch , is a German national who was born in 1943 and lives in Braunschweig. He is represented before the Court by Mr D. Koch, a lawyer practising in Braunschweig.

The facts of the case, as submitted by the applicant, may be summarised as follows.

A. The circumstances of the case

Since 2002 the applicant ’ s wife (B.K.) had been suffering from total sensorimotor quadriplegia after falling in front of her doorstep. She was almost completely paralysed and needed artificial ventilation and constant care and assistance from n ursing staff. She therefore wished to end what was, in her view, an undignified life by committing suicide with the assistance of the Swiss assisted-suicide organisation, Dignitas.

In November 2004 B.K. requested the Federal Institute for Drugs and Medical Devices ( Bundesinstitut für Arzneimittel und Medizinprodukte – “the Federal Institute”) to grant her authorisation to obtain 15 grams of pentobarbital of sodium, the fatal dose of medication enabling her to commit suicide at her home in Braunschweig.

On 16 December 2004 the Federal Institute refused to grant her that authorisation, relying on section 5(1)(6) of the German Narcotics Act ( Betäubungsmittelgesetz – see “Relevant domestic law” below). It found that her wish to commit suicide was diametrically opposed to the purpose of the Narcotics Act, which aimed at securing the necessary medical care of the population. Authorisation could therefore only be granted for life-supporting or life-sustaining purposes and not for the purpose of helping a person to end his or her life.

On 14 January 2005 the applicant and his wife lodged an administrative appeal against that decision with the Federal Institute.

On 3 March 2005 the Federal Institute confirmed its earlier decision. In addition, it expressed doubts as to whether a State-approved right of an individual to commit suicide could be derived from Article 8. In any event, Article 8 could not be interpreted as imposing an obligation on the State to facilitate the act of suicide with narcotic drugs by granting authorisation to acquire the fatal dose of medication. Furthermore, a right to commit suicide would be inconsistent with the higher-ranking principle enshrined in Article 2 § 2 of the German Basic Law (see “Relevant domestic law” below), which contains the “comprehensive” obligation of the State to protect life, inter alia by refusing to grant authorisation to obtain a lethal dose of a drug for the purpose of committing suicide.

Finally, it “informed” the applicant that he had no standing to lodge an administrative appeal as he lacked the need for legal protection ( Rechtsschutzbed ürfnis ). In particular, the applicant could not improve his own position with the appeal as his legal position had not been the subject of the administrative proceedings.

On 12 March 2005 B.K. committed suicide in Switzerland , assisted by Dignitas.

On 4 April 2005 the applicant lodged an action for a declaration that the aforementioned decisions of the Federal Institute had been unlawful ( Fortsetzungsfeststellungsklage ) and that it had thus had a duty to grant his wife the requested authorisation.

On 21 February 2006 the Cologne Administrative Court declared the applicant ’ s action inadmissible. It found that he lacked standing to lodge the action as he could not claim to be the victim of a violation of his own rights. Accordingly, the Federal Institute ’ s refusal to grant his wife authorisation to obtain a fatal dose of medication did not interfere with his right to protection of his marriage and family life as guaranteed by Article 6 § 1 of the Basic Law ( Grundgesetz – see “Relevant domestic law” below). Any other interpretation would lead to the assumption that each infringement of the rights of one spouse would automatically also be an infringement of the rights of the other spouse. That assumption would water down the separate legal personality of each spouse, which was clearly not the purpose of Article 6 § 1 of the Basic Law. Furthermore, the contested decisions did not interfere with his own right to respect for family life under Article 8 of the Convention as they did not affect the way in which the applicant and his wife lived together.

Moreover , the applicant coul d not rely on his wife ’ s rights as the right to be granted authori s ation to obtai n the requested dose of drugs was of an eminently personal and non-transferable nature. Furthermore, 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” below) the refusal could not produce effects beyond her life as it did not contain elements of disparagement capable of impairing B.K. ’ s image in the eyes of posterity.

Finally, the court held that i n any event the refusal of the Federal Institute to grant B.K. the requested authorisation had been lawful and in compliance with Article 8 of the Convention. In particular, any interference with B.K. ’ s right to respect for private life was necessary in a democratic society for the protection of health and life and thus also for the protection of the rights of others. Referring to the Court ’ s judgment in the case of Pretty (see Pretty v. the United Kingdom , no. 2346/02, § 74 , ECHR 2002 ‑ III ), the court held that the domestic authorities had a wide margin of appreciation to assess the danger and risks of abuses. Therefore, the fact that the provisions of the Narcotic Act permitted exceptions only for what was medically needed could not be considered as being disproportionate.

On 22 June 2007 the North-Rhine Westphalia Administrative Court of Appeal dismissed the applicant ’ s request for leave to appeal. It found , in particular , that the right to protection of marriage and family life under Article 6 § 1 of the Basic Law and Article 8 § 1 of the Convention d id not confer a right to have the spouses ’ marriage terminated by the suicide of one of them. Moreover, it considered that the decisions of the Federal Institute had not interfered with the applicant ’ s right to respect for private life within the meaning of Article 8 § 1 of the Convention. Even if the right to die existed, its very personal character would not allow third persons to infer from Article 6 § 1 of the Basic Law or Article 8 § 1 of the Convention that they too had that right. Finally, the applicant could not rely on Article 13 as he had no arguable claim to be the victim of a violation of a right guaranteed under the Convention .

On 4 November 2008 the Federal Constitutional Court declared a constitutional complaint lodged by the applicant inadmissible as 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.

Furthermore, the applicant was not entitled to lodge a constitutional complaint as legal successor of his deceased wife. In particular, it was not possible to lodge a constitutional complaint to assert one ’ s human dignity or other non-transferable rights. A legal successor could only introduce a constitutional complaint in cases which primarily involve d pecuniary claims and where the complaint was aim ed at pursuing the successor ’ s own interests.

B. Relev ant domestic law

1. The Basic Law

Article 6 § 1 of the Basic Law provides that marriage and family enjoy the special protection of the State.

Under Article 2 § 2 of the Basic Law every person has the right to life and physical integrity.

The Federal Constitutional Court has accepted the posthumous protection of human dignity in cases where the image of the deceased person had been impaired in the eyes of posterity by ostracism, defamation, mockery or other forms of disparagement (see decision of 5 April 2001, no. 1 BvR 932/94).

2. The Narcotics Act

The Narcotics Act governs the control of narcotic drugs. Three annexes to the Act enumerate the substances which are considered as drugs, including pentobarbital of sodium.

Section 3(1)(1) of the Act provides that the cultivation, manufacture, import, export, acquisition, trade and sale of drugs shall be subject to an authorisation by the Federal Institute for Drugs and Medical Devices .

In accordance with s ection 5 ( 1 )( 6 ) of the Act, no such authorisation shall be granted if the nature and purpose of the proposed use of the drug contravenes the purposes of the Narcotics Act, namely, to secure the necessary medical care of the population, to eliminate drug abuse and to prevent drug addictions.

COMPLAINTS

1. The applicant complains under Article 8 of the Convention that the Federal Institute ’ s refusal to grant his wife authorisation to obtain the lethal dose of medication infringed her right to respect for her private and family life, in particular her right to a dignified death. He also complains that the refusal infringed his own right to respect for private and family life as he was forced to travel to Switzerland to enable his wife to commit suicide.

2. He further complains, under Article 13, that the German courts violated his right to an effective remedy when denying his right to challenge the Federal Institute ’ s refusal to grant his wife the requested authorisation.

QUESTIONS TO THE PARTIES

1. Does the applicant have standing under Article 34 of the Convention to allege violations of his deceased wife ’ s rights under Article 8 and 13 of the Convention?

2. Did the refusal of the Federal Institute for Drugs and Medical Devices to grant the applicant ’ s late wife authorisation to acquire a lethal dose of pentobarbital of sodium for the purposes of committing suicide constitute a violation of her right to respect for her private life contrary to Article 8 of the Convention?

3. Was the domestic courts ’ refusal to examine the applicant ’ s action for a declaration that the Federal Institute ’ s decision had violated his late wife ’ s right to respect for private life (Article 8) on the merits in breach of the applicant ’ s right to an effective domestic remedy as guaranteed by Article 13 of the Convention?