HUN-2003-2-003
a) Hungary / b) Constitutional Court / c)   / d) 28-04-2003 / e) 22/2003 / f)   / g) Magyar Közlöny (Official Gazette), 2003/43 / h) .
 
Keywords of the Systematic Thesaurus:
 
 
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - Civil and political rights - Right to dignity.
Fundamental Rights - Civil and political rights - Right to life.
Fundamental Rights - Civil and political rights - Right to physical and psychological integrity.
 
Keywords of the alphabetical index:
 
Patient, right to self-determination / State, duty to protect life / Euthanasia, active / Suicide, assisted, prohibition.
 
Headnotes:
 
In the case of euthanasia, the right to human dignity does not form an inseparable unity with the right to life, but vice versa: the exercise of the one may mean that the other is pushed into the background. Therefore, it may not be claimed, on the basis of the absolute nature of the right to human dignity in unity with the right to life, that an incurable patient's right to self-determination in relation to ending his or her life would be an absolute right. The right to self-determination may be restricted on the bases of the general test of fundamental rights and Article 8.2 of the Constitution.
 
The Constitutional Court also emphasised that the boundary between the constitutional and unconstitutional regulation of the exercise of a patient's right to self-determination in the field of legal regulation is not laid down forever; the level of knowledge, the state of institutions, their development and several other factors may influence a judgment of the Constitutional Court on the question.
 
Summary:
 
I. According to Article 15 of Health Act, a patient has the right to self-determination. However, Article 20 of that Act restricts the exercise of that right.
 
A patient with decision-making capacity has the right to refuse medical treatment, except where it endangers the lives or physical integrity of others. Account being taken of the natural course and outcome of an illness, a patient may refuse life-sustaining and life support measures only where he or she suffers from an incurable disease that, according to the current state of medical knowledge and even with appropriate medical treatment, will lead to death within a short period of time. The refusal is valid only where a commission of three physicians examines the patient and states in writing that the request is based on the patient's considered decision. It will become effective only where that patient reconfirms his or her intention to refuse medical treatment before two witnesses on the third day after the preparation of the commission's report. Where the patient does not consent to examination by the commission of physicians, his or her wish to refuse medical treatment cannot be considered. Governmental Decree 117/1998 contains further regulations on the detailed rules on the refusal of some particular kinds of medical treatment.
 
The petitioners argued that a patient's right to human dignity under Article 54.1 of the Constitution involved the right to self-determination, part of which was the right to euthanasia. They claimed that the restrictions to that right under the Health Act and the Decree were disproportionate, and thus unconstitutional. The petitioners also claimed that the prohibition of active euthanasia was unconstitutional. Moreover, they claimed that the Criminal Code did not deal with, set out an exception or a special section for the particular features of a case involving assisted suicide, and did not distinguish assisted suicide from homicide.
 
II. The Constitutional Court rejected the petition as a whole.
 
In making its decision, the Court took into account the practice of international legal organisations, foreign courts and constitutional courts, as well as the foreign and international legal regulations concerning the questions referred to in the petitions.
 
The Court stated that as the petitioners relied only on Article 54.1 of the Constitution ("In the Republic of Hungary everyone has the inherent right to life and to human dignity, of which no one can be arbitrarily deprived"), the Court had to examine the petitions exclusively from that aspect. The Court recalled its previous case-law and held that the principles in that case-law formed an appropriate basis for determining the case: the right to life and human dignity is an indivisible and absolute right. However, according to Article 8 of the Constitution, the subsidiary rights deduced from the right to human dignity as a general fundamental right (for example the right to self-determination involved in the case in question) may be restricted on the basis of a necessity or proportionality test and the protection of the essential content, just like any other fundamental right.
 
The fact that the Act punishes a doctor or another person who ends a patient's life without the patient's wishing to have his or her life ended, even where it is done to save the patient's human dignity, has no direct constitutional relation to an incurable patient's right to self-determination; therefore, an incurable patient's right to self-determination cannot be deduced from that fact.
 
Where a doctor actively induces a patient's death, it is a restriction of the patient's right to self-determination, according to Article 8.2 of the Constitution. The same restriction holds where the exercise of an incurable patient's right to refuse life-sustaining and life support measures is subject to defined conditions and strict procedural regulations (Article 20 of the Health Act).
 
As to those regulations, the Constitutional Court stated that the Act makes it possible only in part for incurable patients to exercise their right to self-determination to end their lives in accordance with their right to human dignity, but it also restricts it in part, on the basis of the duty of the State to protect human life under Article 8.1 of the Constitution. The Constitutional Court, however, did not find those restrictions disproportionate with the objective of protecting the right to life.
 
Finally the Constitutional Court did not accept the arguments against the Criminal Code. It stated that the legislature had no duty according to the Constitution, to set out an exception for or special section dealing with the particular features of the various forms of assisted suicide. The motives of the persons inducing the death of incurable patients may be evaluated by the court when imposing a penalty.
 
III. Several concurring opinions and dissenting opinions were expressed in relation to the decision.
 
In her concurring opinion, Justice Éva Tersztyánszky Vasadi stated that in her opinion in the particular case (on the various forms of euthanasia) the decision of the Constitutional Court on the inseparability of life and human dignity had to be held valid. Consequently, raising the question of a conflict and choice between life and human dignity was based on a false interpretation of human dignity. In her opinion, a legal provision allowing life to be ended with medical assistance would be inconsistent with the right to life.
 
Justice András Holló, in his concurring opinion, emphasised his opinion that the constitutional limitations on the right to self-determination relating to ending life in a dignified way did not exclude and did not make a possible, broader interpretation of the right to self-determination unconstitutional for the future. That decision, however, fell within in the margin of appreciation of the legislative power.
 
In a dissenting opinion, Justice Holló stated that several paragraphs of Articles 20 and 23 of Health Act as well as the provisions regulating the practice of a patient's right to self-determination, unnecessarily and disproportionately restricted the right to self-determination in relation to ending life with dignity, forming a counterbalance in part because of over-regulation, in part because of unclear legal concepts, which was not justifiable under the Constitution; and they thus deprived that right of its essential meaning. For that reason, those provisions were unconstitutional, and the Constitutional Court should have struck them down.
 
Justice István Kukorelli joined Justice Holló both in his concurring and his dissenting opinion.
 
In a dissenting opinion, Justice Mihály Bihari evaluated the relationship of the right to self-determination and euthanasia, and the various forms of euthanasia thoroughly, and stated that the provisions of Article 20 of Health Act, and especially the regulations concerning delaying procedures that made the exercise of the right to self-determination more difficult, unconstitutionally restricted the right to self-determination in relation to the refusal of life-sustaining and life support measures of incurable patients.
 
In his dissenting opinion, Justice Árpád Erdei stated that Article 18 of Health Act gave an unconstitutional possibility for the extension of the use of invasive measures infringing a patient's right to self-determination.
 
Languages:
 
Hungarian.