Information Note on the Court’s case-law 187

July 2015

Nicklinson and Lamb v. the United Kingdom (dec.) - 1787/15 and 2478/15

Decision 23.6.2015 [Section IV]

Article 8

Article 8-1

Respect for private life

Ban on assisted suicide and voluntary euthanasia: inadmissible

Facts – The first applicant is the wife of Tony Nicklinson, now deceased, who suffered locked-in syndrome following a stroke. The second applicant was paralysed following a car accident. His condition is irreversible. Both men wished to end their lives but were unable to commit suicide without assistance. They unsuccessfully challenged the statutory ban on assisted suicide and the law on murder, whi ch did not recognise voluntary euthanasia as a defence, before the domestic courts. The Supreme Court found, in particular, that such a sensitive issue was for Parliament to resolve.

Law – Article 8

(a) First applicant – In order for the right to respect for private life to be properly secured at domestic level, individuals had to be able to seek to rely on arguments derived from Article 8 in domestic proceedings and to have those arguments considered and, where appropriate, taken into account in the rulin gs of the domestic courts. The Court’s more recent case-law had often tended to view this ancillary aspect of private-life protection as arising under the so-called procedural aspect of Article 8 itself (see, for example, Koch v. Germany, 497/09 , 19 July 2 012, Information Note 154 ; and McCann v. the United Kingdom , 19009/04, 13 May 2008, Information Note 108 ).

It was well established in the Court’s case-law that Article 13 does not go so far as to guarantee a remedy allowing primary legislation to be challenged before a national authority on the ground of being contrary to the Convention. Where, as here, the cas e concerned a challenge to primary legislation, rather than, as in Koch and McCann , an individual measure of implementation, it would therefore be anomalous if the procedural aspect of Article 8 extended further than Article 13 so as to require the possibi lity of challenging primary legislation in cases giving rise to private-life concerns.

However, the Convention was part of the domestic law of the United Kingdom and a procedure existed, under the Human Rights Act, permitting primary legislation to be chal lenged on the basis of its alleged incompatibility with Article 8. It could therefore be argued that where the State had chosen to provide a remedy in respect of primary legislation, such remedy was subject to the procedural requirements which generally ar ose under Article 8, and in particular to the requirement set out in Koch as to the need for an examination of the merits of the claim. For the Court, however, there was a fundamental problem with extending the procedural protections of Article 8 in that w ay. The problem arose from the application of the margin of appreciation available to member States in cases concerning challenges to primary legislation under Article 8. The Contracting States were generally free to determine which of the three branches o f government should be responsible for taking policy and legislative decisions which fell within their margin of appreciation and it was not for the European Court to involve itself in their internal constitutional arrangements. However, when it concluded in any given case that an impugned legislative provision fell within the margin of appreciation, it would often be the case that the Court was, essentially, referring to Parliament’s discretion to legislate as it saw fit in that particular area. Thus, in P retty v. the United Kingdom (2346/02, 29 April 2002, Information Note 41 ) the Court had held that it was for States to assess the risk and likely incidence of abuse if the general prohibition on assi sted suicide were to be relaxed or exceptions created. In the context of the United Kingdom, that assessment had been made by Parliament in enacting the relevant provision of the 1961 Suicide Act, a provision that had been reconsidered several times by Par liament in recent years, having been re-enacted in 2009. If the domestic courts were to be required to give a judgment on the merits of such a complaint this could have the effect of forcing upon them an institutional role not envisaged by the domestic con stitutional order. Further, it would be odd to deny domestic courts charged with examining the compatibility of primary legislation with the Convention the possibility of concluding, like the Court, that Parliament was best placed to take a decision on the issue in question in light of the sensitive issues, notably ethical, philosophical and social, which arose. For those reasons, the Court did not consider it appropriate to extend Article 8 so as to impose on the Contracting States a procedural obligation to make available a remedy requiring the courts to decide on the merits of a claim such as the one made in the instant case.

In any event, the majority of the Supreme Court judges had dealt with the substance of the first applicant’s claim. They had concluded that she had failed to show that developments since Pretty meant that the ban could no longer be considered a proportiona te interference with Article 8 rights. The fact that in making their assessment they had attached great significance to the views of Parliament did not mean that they had failed to carry out any balancing exercise. Rather, they had chosen – as they were en titled to do in light of the sensitive issue at stake and the absence of any consensus among Contracting States – to conclude that the views of Parliament weighed heavily in the balance.

Conclusion : inadmissible (manifestly ill-founded).

(b) Second applic ant – Before the Court of Appeal, challenges had been made to both the prohibition on assisted suicide and the law on murder, which made no exception for voluntary euthanasia. However, before the Supreme Court the second applicant had only pursued his comp laint about the ban on assisted suicide and not his argument that there should be a judicial procedure to authorise voluntary euthanasia in certain circumstances. It could not be assumed that the Supreme Court would have disposed of the argument concerning voluntary euthanasia in the same way as it disposed of the claim in respect of the prohibition of assisted suicide.

Conclusion : inadmissible (failure to exhaust domestic remedies).

© Council of Europe/European Court of Human Rights This summary by the Re gistry does not bind the Court.

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