JOINT DISSENTING OPINION OF JUDGES RAIMONDI, JOÄŒIENÄ– AND KARAKAÅž

1. We voted against finding a violation of Article 8 in this case because, to our regret, we were not able to follow the majority in their findings. We observe that under section 24(a) of the Therapeutic Products Act, read in conjunction with the Drugs Act, sodium pentobarbital is available only upon medical prescription. We further observe that under the pertinent case-law of the Federal Supreme Court (see paragraph 30 of the judgment), section 24(a) of the Therapeutic Products Act does not allow for an exemption from this rule in the event that no medical practitioner is willing to issue the required prescription. We are of the opinion that the Federal Supreme Court’s case-law, which refers to the above-mentioned medical guidelines, sufficiently and clearly defines the circumstances under which a medical practitioner is allowed to issue a prescription for sodium pentobarbital.

2. We are also of the opinion that, even accepting that the right to assisted suicide is recognised in Switzerland, our applicant is not among the people who have obtained such a right, in the circumstances of the case. We note that the domestic law is very clear on this point – the lethal substance can be prescribed by medical practitioners issuing a medical prescription (see paragraphs 19-21, 26, 30 and 32-33 of the judgment). The applicant was not able to obtain such a prescription at domestic level as she had not been suffering from a terminal illness, which is a clearly defined precondition for obtaining the lethal substance. She had just expressed her wish to die because of her advanced age and increasing frailty. Therefore, in our opinion, the applicant in the instant case did not fulfil the conditions laid down in the medical ethics guidelines on the care of patients at the end of life adopted by the Swiss Academy of Medical Sciences (see paragraphs 32 ‑ 33 of the judgment) which have, in our opinion, been correctly applied and clearly interpreted in the jurisprudence of the Federal Supreme Court (see paragraphs 19-21 of the judgment).

3. With regard to the balancing of the competing interests in this case, in our opinion the instant case falls to be distinguished from the Haas case (cited in paragraph 63 of the judgment). In that case, the applicant wished to end his life because he was suffering from a serious psychiatric disorder. Conversely, in the present case the applicant, as mentioned above, is not suffering from any serious illness, but rather does not wish to continue living while relying on physical and mental faculties that are impaired through old age. In our opinion the regulations put in place by the Swiss authorities, namely the requirement to obtain a medical prescription, pursue, inter alia , the legitimate aims of protecting everybody from making hasty decisions, preventing abuse, and, most notably, ensuring that a patient lacking the ability to understand the consequences of his or her actions does not obtain a lethal dose of sodium pentobarbital (compare Haas , § 56).

4. As the Court remarked in the Haas case (see Haas , § 57), such regulations are all the more necessary in respect of a country such as Switzerland, where legislation and practice allow for access to assisted suicide. Where a country adopts a liberal approach in this matter, appropriate implementing measures for such an approach and preventive measures are necessary. The introduction of such measures is also intended to prevent organisations which provide assistance with suicide from acting unlawfully and in secret, with significant risks of abuse.

5. In particular, the Court has considered that the risks of abuse inherent in a system that facilitates access to assisted suicide should not be underestimated. It considers that the requirement for a medical prescription, issued on the basis of a full psychiatric assessment, is a legitimate means enabling this obligation to be met. Moreover, the Court has found that this solution corresponds to the spirit of the International Convention on Psychotropic Substances (see Haas , § 58, and paragraph 37 of the judgment).

6. With regard to the margin of appreciation enjoyed by the State, for the purposes of the balancing process, we reiterate that a number of factors must be taken into account when determining the breadth of that margin in relation to any case under Article 8 of the Convention. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will normally be restricted (see, for example, Dudgeon v. the United Kingdom , 22 October 1981, § 52, Series A no. 45; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90, ECHR 2002-VI; and Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ IV).

7. Where, however, there is no consensus between the States Parties to the Convention, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider. By reason of their direct and continuous contact with the vital forces of their countries, the State authorities are, in principle, in a better position than an international court to give an opinion, not only on the “exact content of the requirements of morals” in their country, but also on the necessity of a restriction intended to meet such requirements (see, among other authorities, A, B and C , cited in paragraph 58 of the judgment, and Handyside v. the United Kingdom , 7 December 1976, § 48, Series A no. 24).

8. The comparative research shows that the majority of States Parties do not allow any form of assisted suicide (see paragraph 34-35 of the judgment, and Haas , § 55). Only four States examined allow medical practitioners to prescribe a lethal drug in order to enable a patient to end his or her life. It follows that the States Parties to the Convention are a long way from reaching a consensus in this respect, thus indicating that the State should enjoy a considerable margin of appreciation in this area (also compare Haas , § 55, and Koch , cited in the judgment at paragraph 59).

9. With regard to the applicant’s argument that the legal situation such as exists in Switzerland rendered theoretical and illusory her right to decide when and by which means her life would end, we observe that this right, like any other aspect of the right to respect for one’s private life contained in Article 8, may be subject to restrictions in the public interest. In our opinion, the clearly formulated and statutory restrictions and the jurisprudence of the Federal Supreme Court on a specific drug’s prescription have clearly eliminated our applicant from the application of such provisions in her case, as she did not fulfil the established legal requirements; she was not able to be issued with a medical prescription for sodium pentobarbital as she was not suffering from a terminal illness (see paragraph 2 of the present opinion). Therefore we conclude that the right in question, which was not granted to the applicant under the domestic law, cannot be regarded as illusory.

10. Having regard to the above considerations, we consider that the State remained well within its margin of appreciation when refusing to grant the applicant authorisation to acquire a lethal dose of sodium pentobarbital without a medical prescription, assuming that it is acceptable for such a prescription to be given to other people in clearly defined circumstances under the domestic law and practice. In our view the Court should not oblige the State to adopt some laws or provisions for broader regulation of certain questions that the State has by itself determined in a clear and comprehensive manner.

11. We therefore believe that there has, accordingly, been no violation of Article 8 of the Convention.