THIRD SECTION
CASE OF MORTIER v. BELGIUM
(Application no. 78017/17)
 
JUDGMENT
 
Art 2 (substantive) • Positive obligations • Life • Death by euthanasia of applicant’s mother, who suffered from depression for about forty years, as authorised by law • Legislative framework capable of ensuring in principle patient’s right to life as regards pre-euthanasia acts and procedure • Additional safeguards concerning euthanasia for mental suffering where death not otherwise expected in short term • Margin of appreciation
Art 2 (procedural) • Positive obligations • Lack of independence of board subsequently reviewing all acts of euthanasia, allowing doctor who carried out specific act to vote on its lawfulness • Doctor’s sole discretion as to whether to remain silent not sufficient • Requirements of Art 2 not satisfied by review solely on basis of anonymous part of registration document to preserve confidentiality • Excessive length of criminal investigation
Art 8 • Positive obligations • Private and family life • Doctors’ failure to involve son in procedure leading to mother’s death by euthanasia, in absence of her wish to do so, in accordance with law • Duty of confidentiality and medical secrecy • Fair balance between different interests at stake struck by legislation

 
STRASBOURG
4 October 2022
FINAL
 
04/01/2023
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Mortier v. Belgium,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Georges Ravarani, President,
 Georgios A. Serghides,
 María Elósegui,
 Darian Pavli,
 Peeter Roosma,
 Andreas Zünd, judges,
 Stefaan Smis, ad hoc judge, 
and Milan Blaško, Section Registrar,
Having regard to:
the application (no. 78017/17) against the Kingdom of Belgium lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Belgian national, Mr Tom Mortier (“the applicant”), on 6 November 2017;
the decision to give notice to the Belgian Government (“the Government”) of the application;
the observations submitted by the respondent Government and the observations in reply submitted by the applicant;
the comments submitted by the non-governmental organisations Association pour le Droit de Mourir dans la Dignité, Care Not Killing, the European Centre for Law and Justice, Dignitas and the Ordo Iuris Institute, which had been granted leave to intervene as third parties by the President of the Section;
the Court’s decision of 26 November 2019 not to accept the Government’s unilateral declaration;
the withdrawal of Frédéric Krenc, the judge elected in respect of Belgium, from sitting in the case (Rule 28 of the Rules of Court) and the decision of the President of the Chamber to appoint Stefaan Smis to sit as an ad hoc judge (Rule 29 § 1 (a));
Having deliberated in private on 3 May 2022 and 30 August 2022,
Delivers the following judgment, which was adopted on the last‑mentioned date:
INTRODUCTION
1. The case concerns the death by euthanasia of the applicant’s mother, without the applicant or his sister having been informed. The applicant complained under Articles 2, 8 and 13 of the Convention. THE FACTS
2. The applicant was born in 1976 and lives in Rotselaar. He was represented by Mr R. Clarke, a lawyer practising in Vienna, Austria. 3. The Government were represented by their co-Agents, Ms Justine Lefebvre and Ms Isabelle Minnon, of the Federal Justice Department. THE FACTS LEADING UP TO THE EUTHANASIA
4. The applicant is the son of G.T., who had been diagnosed as suffering from chronic depression for around forty years. She had been treated by B., a psychiatrist, for several years. 5. G.T. had been considering undergoing euthanasia but her general practitioner, Dr W., did not want to take on the role of main doctor in such a procedure, so he referred her to Professor D. 6. On 29 September 2011 Professor D. saw the applicant’s mother for a palliative care consultation. G.T. said that she had been receiving psychiatric treatment since she had been 19 years old and that she had tried all medications. She also said that Dr B. had informed her that she had reached the end of her treatment. During the consultation G.T. described her family ties and family history. She stated that she had not had any contact with her son or her grandchildren for two years. She indicated that in 2006 she had had breast cancer, a period she described as the “happiest time” of her life because she had met a new partner in those circumstances. Professor D. concluded that G.T. was severely traumatised, that she had a serious personality and mood disorder and that she no longer believed in recovery or treatment. At the end of their interview, he agreed to become her main doctor under the law on euthanasia. He referred her to Dr V., a psychiatrist, to act as consulting doctor for the purposes of section 3(2)(3o) of the Law of 28 May 2002 on euthanasia (“the Euthanasia Act”; see paragraph 51 below). 7. On 17 November 2011 G.T. met with Dr V., who confirmed that G.T. suffered from chronic depression with “ups and downs”. Considering the length of G.T.’s treatment and the failure of all therapeutic measures, Dr V. found the outlook bleak but considered G.T.’s request premature. She therefore suggested that G.T. first try consulting another psychiatrist, and referred her to Dr V.D. for subsequent care. 8. On 23 December 2011 Professor D. had another conversation with the applicant’s mother, who told him that she was afraid of being cast aside and having her euthanasia request rejected. She said that she was prepared to see Dr V.D. as Dr V. had suggested but that she was also afraid she might be rejected. She stated that she no longer wanted to have contact with her children. She claimed that her son was aggressive and that she was afraid of him. 9. On 12 January 2012 the applicant’s mother told Professor D. that she was exhausted. She again stated that she did not want to contact her children. She said that she had not yet been to see Dr V.D. because she could not reach him. Regarding Dr V., she said that there was a very long wait for another appointment. Professor D. therefore referred her to Dr T., another psychiatrist, for a fresh consultation. 10. On 17 January 2012 the applicant’s mother met with Dr T. On that occasion, she stated that she had taught full-time from 1982 to 1985 and then part-time until 2006. In her opinion, she had been able to cope during that period by taking treatment. She also described her family relationships, particularly the problems that she had had with her husband, who had since passed away. She stated that her daughter, with whom she did not have a good relationship, was aware of her euthanasia request. She indicated that she no longer had anyone in her life and that she spent every day alone. She stayed in bed all day and no longer had any desire to do anything. She further stated that her psychiatrist at the time, Dr B., was aware of her euthanasia request but did not want to help her to die. She had asked him what more he could do for her. He had allegedly replied, “Listen to you”, but had acknowledged that she was “incurably ill”. G.T. stated that she had never been admitted to a psychiatric facility and that such an option had never previously been suggested. She said that she had lost faith in psychiatry. She further stated that her experience in that area had not been good because of her son’s admission to such a facility for six months. She listed all the medication that she took. At the end of the consultation G.T. expressed the wish to undergo euthanasia within weeks. 11. On 20 January 2012 the applicant’s mother had another appointment with Professor D. and agreed to be assisted by Dr V.D. during the process of clarifying her euthanasia request. That same day it was suggested that she inform her children of her euthanasia request so that they could accompany her throughout the process. 12. On 31 January 2012 the mother sent an email to the applicant and to her daughter, informing them of her euthanasia request, her desire to have a dignified end to life and the intense suffering that she had been experiencing for forty years. It does not appear from the case file that the applicant answered that email. G.T.’s daughter, however, replied that she respected her mother’s wishes. 13. That same day Professor D. informed G.T. that she should make an appointment with Dr V.D. because he thought that she could be helped. 14. On 7 February 2012 Professor D. contacted Dr B. because G.T.’s treatment had not formally been terminated. When asked whether there was any chance that the situation of the applicant’s mother could improve, Dr B. replied in the negative. In his opinion, the problem was serious and chronic, with an adverse prognosis. 15. On 10 February 2012 Dr B. sent a letter to Dr T. stating that he had known the applicant’s mother since 1996 on account of her wide variety of very serious mental health conditions stemming from psychological trauma since childhood. He described G.T.’s situation and concluded that the outlook was extremely bleak. 16. On 14 February 2012 the applicant’s mother lodged a formal, handwritten request for euthanasia. That same day Professor D. formally became her main doctor for the purposes of the euthanasia request. 17. Also on the same day Dr T. drafted a report indicating that the applicant’s mother had consulted her several times concerning her request for euthanasia on account of intolerable and incurable suffering. According to Dr T., G.T. was rational and clear-sighted. She had been informed of the treatment options that could alleviate her pain but not cure her. Dr T. noted that Professor D. had encouraged G.T. to contact her children, but that G.T. had only wanted to write a goodbye letter. Having noted that there was no pressure from third parties, Dr T. considered that the applicant’s mother could be assisted in ending her life. 18. On 17 February 2012 the applicant’s mother was examined by Dr V.D. who, on the basis of her condition, considered that she could be assisted in ending her life. It is apparent from G.T.’s medical file that Dr V.D. drew up a report on 20 February 2012 indicating that a euthanasia request had been lodged by an unmarried woman, with two children, who had been receiving psychiatric treatment for mood and personality issues since she had been a teenager. The doctor stated that the patient was living in marked social isolation and had a bitter attitude towards life, among other things refusing any further treatment. He further indicated that the patient’s psychiatrist of many years had confirmed her chronic depression and the hopelessness of all other treatment options. He said that the conversation had gone fairly easily with the patient, who had become slightly emotional when talking about her grandchildren, whom she had no longer had any opportunity to see. 19. On 22 February 2012 Professor D. saw the applicant’s mother again. According to him, the situation seemed hopeless. He also consulted Dr B., who told him that all treatment and care options had been exhausted. Professor D. once again asked G.T. to contact her children. 20. On 27 February 2012 the applicant’s mother drafted a formal, handwritten statement of intent to donate her body to science after her death. 21. On 29 February 2012 the applicant’s mother donated 2,500 euros (EUR) to LEIF (LevensEinde InformatieForum), a non-profit association established in 2003 to work for a dignified end to life for all. That association was run by Professor D., and its members included Dr T. and Dr V.D. 22. On 8 and 12 March 2012 Professor D. examined the applicant’s mother once again. He concluded that she had no more prospects in life. 23. On 12 March 2012 Dr B. concluded that there was no longer any point in G.T. establishing contact with her children. Dr V. advised informing them by letter. The applicant’s mother asked for some time to think it over. 24. On 20 March 2012 the applicant’s mother met with P.D., a person of trust, who noted that she had written a goodbye letter to her children. 25. On 3 April 2012 Professor D. and P.D. met with the applicant’s mother again. On that occasion she reiterated that she did not want to call her children because she wished to avoid any further problems in her life. She agreed to write her children a letter with the help of P.D. She said that her assessment of her current life was negative and that she had no more prospects in life. She further stated that the medication had had no effect for two years and that she no longer believed in any possibility of improvement. Following the conversation Professor D., jointly with the applicant’s mother and in agreement with the psychiatrists consulted, concluded that euthanasia was the only rational option. They set the date of the euthanasia procedure for 19 April 2012. 26. On 10 April 2012 Professor D. had two telephone conversations with the applicant’s mother. She expressed her fear that the euthanasia procedure would be postponed because she did not want to contact her son. Professor D. assured her that her wishes would be respected. 27. On 19 April 2012 Professor D. performed euthanasia on the applicant’s mother, who died at 11.15 a.m. in a public hospital in the presence of a few friends. THE FACTS SUBSEQUENT TO THE EUTHANASIA
28. On 20 April 2012 the applicant was informed by the hospital that his mother had died by euthanasia the previous day. The Board’s automatic review
29. On 20 June 2012 the Federal Euthanasia Monitoring and Assessment Board (“the Board”) received the euthanasia registration document completed by Professor D. Part II of that document (the anonymous part) was appended to the Government’s submissions to the Court, lodged on 4 March 2020. It mentioned that the patient suffered from a very extensive mental illness, stemming from a bad childhood and a bad subsequent family life, leading to repeated, incurable bouts of depression. The mental suffering had been present since youth, had increased steadily over time and had no prospect of improvement. Neither psychotherapy nor medication was capable of alleviating her suffering any longer. The fact that the patient had been seeking euthanasia for years was proof that the request had been made of her own free will, in a considered and constant manner. The document also indicated that all conditions and procedures prescribed by the Euthanasia Act (see paragraphs 51-52 below) had been complied with, and that opinions had been sought from two independent doctors, who had confirmed the patient’s legal capacity, the incurable nature of her condition and the existence of extreme, intolerable mental suffering which could not be alleviated. 30. On 26 June 2012 the Board, of which Professor D. was co-chair, examined the registration document and concluded that the applicant’s mother’s euthanasia had been carried out in accordance with the conditions and procedure prescribed by the Euthanasia Act. Steps taken by the applicant with respect to the Board and the Medical Association
31. On an unknown date the applicant sent a letter to Professor D., making reference to a meeting that he had had on 15 May 2012 with Professor D., Dr T. and P.D. about his mother’s euthanasia, which had been performed without his knowledge. He stated that he had not had the opportunity to say goodbye to his mother and that he was now in pathological mourning. He said that he had appointed his psychiatrist, Dr C., as official healthcare professional for the purpose of accessing his mother’s medical file. 32. In a letter of 17 June 2013 Dr C. contacted Professor D. to consult the medical file of the applicant’s mother. 33. On 27 June 2013 Professor D. suggested setting up a meeting by phone. 34. On 2 August 2013 Dr C. examined the medical file of the applicant’s mother. In his report of 3 August 2013 he noted, among other things, that the declaration of euthanasia was not in the file. 35. On 23 October 2013 the applicant requested a copy of the euthanasia registration document from the Board. According to the applicant, no reply was given to that request. 36. On 16 February 2014 the applicant lodged a complaint against Professor D. with the Medical Association. According to the applicant, he was not informed of the outcome of his complaint owing to the confidential nature of the proceedings. 37. On 4 March 2014 the applicant once again requested a copy of the euthanasia registration document submitted to the Board. 38. In a letter of 19 March 2014 the Board refused to provide a copy of the document on the ground that it was prohibited from disclosing it by law. The first criminal investigation
39. On 4 April 2014 the applicant lodged a complaint with the Crown Prosecutor against persons unknown concerning the euthanasia of his mother. 40. On 15 October 2014 the applicant lodged his initial application with the Court. It was declared inadmissible in a decision notified on 4 June 2015, on the ground that all domestic remedies had not been exhausted, since proceedings were still ongoing before the domestic authorities (application no. 68041/14). 41. On 8 May 2017 the applicant was informed that the Crown Prosecutor had discontinued proceedings on account of insufficient evidence. 42. On 6 November 2017 the applicant lodged this application with the Court. 43. On 3 December 2018 the Government were given notice of the application. The second criminal investigation
44. On 2 May 2019 the judicial authorities reopened a criminal investigation into the circumstances surrounding the euthanasia of the applicant’s mother. An investigating judge was assigned. 45. On 24 October 2019 the investigating judge appointed a professor of medicine as an expert to examine the medical file of the applicant’s mother. 46. On 5 May 2020 the expert submitted an eleven-page report. In it, he noted that the applicant’s mother had suffered from a personality and mood disorder since she had been a teenager, and had been treated by several psychiatrists for that reason. He concluded that, on the basis of several doctors’ observations, the applicant’s mother had indeed been experiencing intolerable mental suffering and could not be cured by any course of treatment. He further stated that she had been aware of the treatment options and had requested euthanasia of her own free will, in a constant and sustained manner. He noted that the various doctors had indicated that the applicant’s mother had been legally capable, intelligent and clear-sighted, and that Dr T. had not found any indication of third-party pressure. In addition, the expert observed that a formal request had been lodged on 14 February 2012 and that the euthanasia had been performed more than two months later, in accordance with the statutory waiting period for non-terminal candidates. He also noted that Professor D., in his capacity as main doctor, had obtained opinions from two psychiatrists. The expert observed that the medical team had placed two hurdles to overcome during the monitoring period. First, the applicant’s mother had been required to consult another psychiatrist as part of her treatment (Dr V.D.), which she had done without, however, viewing that option as a potential solution to her suffering. Second, the doctors had insisted that she inform her children of her decision. After several conversations, the applicant’s mother had agreed to send an email to her two children, to which only her daughter had replied. The doctors had then tried to convince her to inform her children by phone. While she had initially agreed to this, she had subsequently changed her mind. The expert noted that the applicant had thus learned of his mother’s death by euthanasia in a very unfortunate way. He observed that there was nothing in the file concerning the declaration of euthanasia submitted to the Board, or the Board’s assessment. 47. After the expert’s report was received, Professor D. was interviewed by the police officers in charge of the investigation on 16 June 2020. During the interview he gave further details on some aspects of that report. He stated that the psychiatrists consulted had been independent and that he had repeatedly encouraged the applicant’s mother to call her children, which she had consistently refused to do. 48. According to the Government, the Crown Prosecutor found on the basis of those elements that the euthanasia of the applicant’s mother had complied with the substantive conditions prescribed by the Euthanasia Act and had been carried out in accordance with the statutory requirements. He requested that the Pre-Trial Division (Chambre du Conseil) of the Dutch‑language Brussels Court of First Instance close the investigation. Prior to that request, he had asked the applicant whether he wished to have Professor D. summoned to appear before the Pre-Trial Division, but the applicant had replied that that would not be necessary. 49. In a decision of 11 December 2020 the Pre-Trial Division found that there were no grounds for prosecution and closed the criminal investigation. No appeal was lodged against that decision. DOMESTIC LEGAL FRAMEWORK
THE LAW OF 28 MAY 2002 ON EUTHANASIA
50. Section 2 of the Law of 28 May 2002 on euthanasia (“the Euthanasia Act”) reads:
“For the purposes of this Act, euthanasia shall be understood as any act performed by a third party which intentionally ends an individual’s life at that individual’s request.”
51. At the material time the relevant parts of section 3 of the Euthanasia Act provided:
“§ 1. A doctor performing euthanasia will not be committing an offence if he or she has ensured that:
the patient is an adult or emancipated minor, and conscious at the time of his or her request;
the request has been made of the patient’s own free will, in a considered and constant manner, and is not the result of external pressure;
the patient is in a hopeless medical situation and is experiencing constant and intolerable physical or mental suffering which cannot be alleviated and is the result of a serious and incurable accidental or pathological condition; and
he or she complies with the conditions and procedures prescribed by this Act.
§ 2. Without prejudice to any additional conditions to which the doctor may wish to subject his or her involvement, the doctor shall first and in any event:
1.  inform the patient of his or her state of health and life expectancy, discuss the euthanasia request with the patient and raise any potential treatment options as well as the possibilities offered by palliative care and the consequences thereof. Both doctor and patient must be convinced that there is no other reasonable solution in the patient’s situation and that the patient’s request is entirely of his or her own free will;
2.  ascertain that the patient is experiencing continued physical or mental suffering and expresses his or her wish in a constant manner. To this end, the doctor shall conduct several interviews with the patient at intervals considered reasonable in view of changes in the patient’s health;
3.  consult another doctor regarding the serious and uncurable nature of the condition, specifying the reasons for the consultation. The consulted doctor shall acquaint him- or herself with the medical file, examine the patient and ascertain that the physical or mental suffering is constant and intolerable and cannot be alleviated. The consulted doctor shall draft a report containing his or her observations. The consulted doctor shall be independent, in relation to both the patient and the main doctor, and be competent as regards the condition concerned. The main doctor shall inform the patient of the outcome of this consultation;
4.  if a care team is in regular contact with the patient, discuss the patient’s request with such team or members thereof;
5.  if the patient so wishes, discuss his or her request with any such family members and friends as the patient may indicate; and
6.  ensure that the patient has had the opportunity to discuss his or her request with the people with whom he or she wished to meet.
§ 3. If the doctor considers that the adult or emancipated-minor patient’s death will clearly not otherwise occur in the short term, he or she shall further:
1.  consult a second doctor – either a psychiatrist or a specialist in the relevant condition – specifying the reasons for the consultation. The consulted doctor shall acquaint him- or herself with the medical file, examine the patient and ascertain that the physical or mental suffering is constant and intolerable and cannot be alleviated and that the request has been made of the patient’s own free will, in a considered and constant manner. The consulted doctor shall draft a report containing his or her observations. The consulted doctor shall be independent, in relation to the patient, the main doctor and the first doctor consulted. The main doctor shall inform the patient of the outcome of this consultation; and
2.  allow at least one month to elapse between the patient’s written request and the act of euthanasia.
§ 4. The patient’s request shall be formalised in writing. The document shall be drafted, dated and signed by the patient him- or herself. ... The patient may withdraw the request at any time, in which case the document shall be removed from the medical file and returned to the patient.
§ 5. All requests made by the patient, as well as the steps taken by the main doctor and their outcomes, including the report(s) by the consulted doctor(s), shall be regularly recorded in the patient’s medical file.”
52. Section 5 of the Euthanasia Act reads:
“Any doctor who has performed euthanasia shall, within four working days, submit the registration document referred to in section 7, duly completed, to the Federal Monitoring and Assessment Board referred to in section 6 of this Act.”
53. At the relevant time section 6 of the Euthanasia Act read:
“§ 1. A Federal Monitoring and Assessment Board, referred to hereafter as ‘the Board’, shall be established for the purpose of applying this Act.
§ 2. The Board shall comprise sixteen members, who shall be appointed on the basis of their knowledge and experience in areas within the Board’s remit. Eight members shall be qualified doctors, at least four of whom shall be professors in a Belgian university. Four members shall be law professors in a Belgian university, or lawyers. Four members shall have a background in dealing with patients suffering from incurable diseases. Board members shall not simultaneously hold office as a member of one of the legislative assemblies or as a member of the federal government or a community or regional government. Board members shall be appointed, with due regard to language equality – with each language group including at least three candidates of each sex – and with a view to ensuring pluralistic representation, by royal decree approved by Cabinet from a list of two candidates presented by the Senate, for a renewable four-year term. A member’s term of office shall automatically expire when he or she ceases to have the capacity in which he or she was appointed. Candidates who are not appointed as full members shall be designated alternate members and placed on a list determining the order in which they will be called to sit as a replacement on the Board. The Board shall be chaired by a French-speaking Chair and a Dutch-speaking Chair. The Chairs shall be elected by the Board members belonging to their respective language group. The Board’s proceedings will not be valid unless two-thirds of its members are present.
§ 3. The Board shall draw up its terms of reference.”
54. Section 7 of the Euthanasia Act provides:
“The Board shall prepare a registration document, which shall be completed by the doctor each time he or she performs euthanasia. This document shall comprise two parts. The first part shall be sealed by the doctor. It shall contain the following information:
1.  the patient’s surname, first names and address;
2.  the main doctor’s surname, first names, INAMI [Institut national d’assurance maladie-invalidité – National Institute of Sickness and Disability Insurance] registration number and address;
3.  the surname, first names, INAMI registration number and address of the doctor(s) consulted in relation to the euthanasia request;
4.  the surname, first names, address and profession of any individuals consulted by the main doctor, as well as the dates of such consultations; and
5.  if an advance decision was prepared designating one or more persons of trust, the surname and first names of any such individual(s) involved. This first part shall be confidential. It shall be sent to the Board by the doctor. It may not be consulted without the Board’s approval, and shall under no circumstances be used as the basis of the Board’s assessment duties. The second part shall also be confidential and contain the following information:
1.  the patient’s sex, and date and place of birth;
2.  the date, place and time of death;
3.  the serious and incurable accidental or pathological condition from which the patient suffered;
4.  the nature of the constant and intolerable suffering;
5.  why this suffering was characterised as being unable to be alleviated;
6.  the elements used to ascertain that the request was made of the patient’s own free will, in a considered and constant manner, and with no external pressure;
7.  whether death was otherwise foreseeable in the short term;
8.  whether there is a statement of intent;
9.  the procedure followed by the doctor;
10.  the qualifications of the doctors consulted, their opinions and the dates of such consultations;
11.  the profession of any individuals consulted by the doctor and the dates of such consultations; and
12.  how the euthanasia was performed and what means were used.”
55. Section 8 of the Euthanasia Act reads:
“The Board shall examine the duly completed registration document provided to it by the doctor. On the basis of the second part of the registration document, it shall verify whether the euthanasia was performed in accordance with the conditions and procedure prescribed hereby. Where there are doubts, the Board may by a simple majority decide to lift anonymity. In such an event, it shall examine the first part of the registration document. It may ask the main doctor to provide it with all elements in the medical file relating to the euthanasia. It shall give its findings within two months. Where, by a two-thirds majority, the Board considers that the conditions prescribed by this Act have not been satisfied, it shall refer the case to the Crown Prosecutor with authority over the place of the patient’s death. Where lifting anonymity reveals facts or circumstances likely to affect a Board member’s independence or impartiality of judgment, that member shall withdraw or may be excused from the Board’s examination of the case.”
56. Section 12 of the Euthanasia Act provides:
“Anyone who assists in any capacity whatsoever in the application of this Act shall keep confidential all information received in the performance of his or her responsibilities and relating to the performance thereof. Article 458 of the Criminal Code shall apply to such individuals.”
THE LAW OF 22 AUGUST 2002 ON PATIENTS’ RIGHTS
57. Section 5 of the Law of 22 August 2002 on patients’ rights (“the Patients’ Rights Act”) provides:
“Patients have a right to receive, from professional practitioners, quality services meeting their needs with due respect for their human dignity and autonomy and without any distinction whatsoever being made.”
58. Section 9(4) of the Patients’ Rights Act reads:
“Following a patient’s death, his or her spouse, legal cohabiting partner, partner and relatives up to the second degree inclusive shall, through a professional practitioner designated by the requesting party, have the right to consultation under subsection 2, provided that the request is adequately reasoned and specific and that the patient has not expressly objected thereto. The designated professional practician may also consult the personal annotations referred to in the third paragraph of subsection 2.”
59. Section 10 of the Patients’ Rights Act provides:
“§ 1. Patients have a right to the protection of their private lives during any dealings with the professional practitioner, in particular as regards information on their health. Patients have a right to respect for their privacy. Unless patients agree otherwise, only individuals whose presence is justified within the context of the professional practitioner’s services may be present during care, examinations and treatment.
§ 2. There shall be no interference with the exercise of this right except where provided for by law and necessary to protect public health or the rights and freedoms of third parties.”
60. At the relevant time section 15(1) of the Patients’ Rights Act provided:
“With a view to protecting the patient’s private life under section 10, the professional practitioner in question may refuse all or part of any request by a person referred to in sections 12, 13 and 14 aiming to obtain consultation or a copy under section 9(2) or (3). In such case, the right to consultation or a copy shall be exercised by the professional practician designated by the requesting party.”
THE LAW OF 14 JUNE 2002 ON PALLIATIVE CARE
61. At the relevant time section 2 of the Law of 14 June 2002 on palliative care read:
“All patients shall be entitled to receive palliative care as part of their end-of-life care. The methods of providing palliative care and the criteria for reimbursement of such care by social security shall ensure equal access to palliative care for all incurable patients, for the full range of care available. For the purposes hereof, palliative care shall be understood as all care provided to a patient suffering from a condition likely to result in death once such condition stops responding to curative care. A multidisciplinary care solution is of crucial importance in providing end-of-life care to such patients, be it physically, mentally, socially or emotionally. The primary goal of palliative care is to offer the patient and his or her loved ones the best possible quality of life and greatest possible autonomy. Palliative care seeks to ensure and to optimise quality of life for the patient and his or her family during the time the patient has left.”
THE CRIMINAL CODE
62. Article 458 of the Criminal Code provides for the punishment of breaches of professional secrecy. At the relevant time it read:
“Doctors, surgeons, health officials, pharmacists, midwives and all other persons who through their status or profession are entrusted with secrets and who reveal them, shall be punished by imprisonment for a period of between eight days and six months and a fine of between 100 euros and 500 euros, except where they are called to testify in court or before a parliamentary commission of inquiry and where the law obliges them to make these secrets known.”
THE OPINION OF THE CONSEIL D’ÉTAT
63. On 20 June 2001 the Conseil d’État (General Assembly of the Legislation Section) delivered opinion no. 31.441/AV-AG on the private member’s bills that led to the Euthanasia Act (Documents parlementaires, Senate, no. 2‑244/21). That opinion contained a long general comment on the bills’ compatibility with the right to life, which concluded as follows:
“10. In sum, it follows from the foregoing that even though the Euthanasia Bill submitted for an opinion provides for a limitation of the protection of the right to life afforded hitherto by law, it remains within the bounds of the national authority’s margin of appreciation under Article 2 [of the European Convention on Human Rights] and Article 6 [of the International Covenant on Civil and Political Rights]. In other words, the bill is not incompatible with the provisions of the aforementioned Convention and Covenant.”
CASE-LAW OF THE CONSTITUTIONAL COURT
64. Jurivie and Pro Vita, both associations, brought proceedings against the Euthanasia Act before the Administrative Jurisdiction and Procedure Court (Cour d’Arbitrage), now the Constitutional Court. That court delivered its judgment (no. 4/2004) on 14 January 2004. The relevant parts read:
“By claiming that the people referred to in sections 3 and 4 of the [Euthanasia Act] are incapable of free choice at the time they make their request, the applicants, appearing to assume that anyone who wants to stop living must be incapable of sound decision-making, give no consideration to the many safeguards laid down in the provisions of the impugned Act to ensure that any individual who expresses his or her wish under the conditions prescribed in sections 3 and 4 does so in total freedom. Furthermore, the preparatory work for the impugned law shows that the relevant Senate Committees and subsequently the House of Representatives paid constant attention to this aspect of the problem. The applicants do not make any other arguments under Article 2 of the European Convention on Human Rights that lead to any other conclusion. The submission is unfounded.
...”
65. In judgment no. 153/2015 of 29 October 2015 the Constitutional Court dismissed applications for judicial review of the Law of 28 February 2014 amending the Euthanasia Act with a view to extending euthanasia to minors. Noting that the Court’s case-law afforded national authorities a wide margin of appreciation with regard to regulating euthanasia on the grounds that there was no European consensus on the matter, the Constitutional Court found that the Euthanasia Act, as amended by the impugned law, struck a fair balance between, on the one hand, every person’s right to choose to end his or her life and thereby avoid an undignified and distressing end to life, as derived from the right to respect for private life, and, on the other hand, the right of minors to measures preventing abusive euthanasia practices, as derived from the right to life and physical integrity. THE MEDICAL ASSOCIATION’S ETHICAL GUIDELINES
66. On 27 April 2019 the National Council of the Medical Association adopted a set of ethical guidelines for the euthanasia of patients experiencing mental suffering following a psychiatric illness. The relevant parts of those guidelines read:
“The Law of 28 May 2002 on euthanasia (hereafter ‘the Euthanasia Act’) provides that psychiatric patients may undergo euthanasia under certain conditions. The National Council, however, considers that euthanasia should only be performed on psychiatric patients subject to extreme caution on account of such patients’ specific issues.
... 2. Ethical guidelines for the euthanasia of psychiatric patients
(1)  In-person meeting of at least three doctors
The Euthanasia Act provides that any doctor performing euthanasia on a patient who will clearly not otherwise die in the short term must consult two doctors, who acquaint themselves with the medical file, examine the patient and ascertain that the physical or mental suffering is constant and intolerable and cannot be alleviated. The first doctor consulted must be competent as regards the condition concerned. The second doctor consulted must be a psychiatrist or a specialist in the condition concerned. The two doctors consulted must be independent in relation to both the patient and the main doctor and prepare a report containing their observations. The main doctor informs the patient. Given that a psychiatric condition generally does not in itself cause a patient to die in the short term, any doctor considering euthanasia for psychiatric patients always in practice consults two doctors and those two doctors are psychiatrists. The National Council considers that any doctor considering euthanasia for psychiatric patients must go one step further still and meet with the two psychiatrists in person. An in‑person meeting gives rise to interdisciplinary collaboration, where each doctor explains his or her point of view as objectively as possible. The doctors prepare a report together and reach a joint conclusion, without necessarily agreeing on all aspects.
... (2)  Use of all possible treatments
The Euthanasia Act provides that any doctor considering euthanasia for psychiatric patients must ensure that the patient is in a hopeless medical situation and experiencing constant and intolerable mental suffering which cannot be alleviated and is the result of a serious and incurable accidental or pathological condition. Determining whether a psychiatric condition is incurable and/or has no prospect of improvement is a complex task for the doctor, especially on account of the significant comorbidity and the high incidence of suicide. The psychiatric condition in itself will not cause the patient’s death, and changes in the condition are extremely difficult to assess. The condition may, however, still be found to be incurable or have no prospect of improvement because, for some psychiatric patients, there is no prospect of improvement in their general state of health. A doctor who observes that a patient is suffering from an incurable psychiatric condition with no prospect of improvement must ensure that all treatments have been used; in other words, the doctor must ensure that the patient has tried all possible evidence-based treatments for his or her condition. Should the patient exercise his or her right to refuse certain evidence-based treatments, the doctor may not perform the euthanasia. The doctor must exercise restraint and avoid taking treatment to unreasonable lengths. There is only a limited number of treatments that can reasonably be tried. The aim is for the doctor to be satisfied that the patient’s situation is such that no further treatment is likely to alleviate his or her suffering from an objective medical and psychiatric point of view. (3)  A condition lasting several years
The Euthanasia Act provides that, if the doctor considers that the patient will clearly not otherwise die in the short term, he or she must allow at least one month to elapse between the patient’s written request and the act of euthanasia. It also provides that the doctor must ascertain that the patient is experiencing continued physical or mental suffering and that his or her wish is expressed in a constant manner. To that end, the doctor conducts several interviews with the patient at intervals considered reasonable in view of changes in the patient’s health;
The National Council considers that the doctor can only ascertain the constancy of the psychiatric patient’s wish by monitoring him or her for a sufficiently long period of time. Psychiatric patients’ health can often change unpredictably. What initially appears to be a hopeless state can change considerably with time and an appropriate course of treatment. It is therefore not acceptable to approve a psychiatric patient’s euthanasia request on the grounds that the statutory one-month waiting time since the written request was made has elapsed, unless the patient has followed a treatment programme over a long period. (4)  Involvement of family and friends in the process
The Euthanasia Act provides that the doctor must discuss the request with the family members and friends indicated by the patient prior to the procedure and in all circumstances if such is the patient’s wish. The doctor must encourage the patient to involve his or her family and friends in the process unless he or she has good reason not to do so. The National Council is aware that conflicts may arise between the patient’s autonomy and the interests of the family and/or society. However, the doctor has a duty towards not only the patient but also any third parties who may incur serious harm on account of the patient’s request. The support of third parties and the protection of society are inextricably linked to the issue of euthanasia for psychiatric patients. In addition, involving family and friends in the process is also important for the legal assessment of whether the request was the result of any external pressure. ... (5)  Patient’s capacity for discernment and consciousness
The Euthanasia Act provides that doctors performing euthanasia are not committing an offence if they have ensured that the patient is capable of discernment and is conscious at the time of the request. In this regard, a patient’s capacity for discernment should be distinguished from his or her effective capacity. A person’s capacity for discernment is a legal concept. Generally, a magistrate [juge de paix], with the assistance of a doctor, will determine whether a person is incapable of discernment and which legal transactions that person may no longer enter into as a result. Any doctor performing euthanasia must check whether such legal protection applies to a patient requesting euthanasia. Effective capacity, also known as the capacity to express one’s wishes or to be conscious of one’s actions, is a factual situation that must be assessed by the doctor performing the euthanasia. For psychiatric patients, this assessment is not a simple matter, because psychiatric disorders can impede a patient’s ability to express his or her wishes. A psychiatric condition does not automatically entail that a patient is incapable of making a considered and valid request for euthanasia.
...”
EUROPEAN AND INTERNATIONAL LAW
COUNCIL OF EUROPEThe Oviedo Convention on Human Rights and Biomedicine

67. The relevant provisions of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, signed in Oviedo on 4 April 1997 (“the Oviedo Convention”), read:
“Article 1 – Purpose and object
Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine. ...”
“Article 5 – General rule
An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time.”
“Guide on the decision-making process regarding medical treatment in end-of-life situations”
68. The Committee on Bioethics (DH‑BIO) of the Council of Europe at its fourth plenary meeting (26-28 November 2013) approved a guide on the principles that can be applied to the decision‑making process regarding medical treatment in specific end‑of‑life situations. The relevant parts of that guide are presented in the Court’s judgment in the case of Lambert and Others v. France ([GC], no. 46043/14, §§ 61-68, ECHR 2015 (extracts)). UNITED NATIONS
69. The United Nations Human Rights Committee (HRC) General Comment No. 36 (2019) on right to life (3 September 2019, CCPR/C/GC/36) contains the following information:
“9. While acknowledging the central importance to human dignity of personal autonomy, States should take adequate measures, without violating their other [obligations under the International Covenant on Civil and Political Rights], to prevent suicides, especially among individuals in particularly vulnerable situations, including individuals deprived of their liberty. States parties that allow medical professionals to provide medical treatment or the medical means to facilitate the termination of life of afflicted adults, such as the terminally ill, who experience severe physical or mental pain and suffering and wish to die with dignity, must ensure the existence of robust legal and institutional safeguards to verify that medical professionals are complying with the free, informed, explicit and unambiguous decision of their patients, with a view to protecting patients from pressure and abuse.”
THE LAW
THE GOVERNMENT’S PRELIMINARY OBJECTIONSThe parties’ submissionsThe Government

70. The Government raised two preliminary objections alleging a failure to exhaust domestic remedies. First, they challenged the admissibility of the application on the grounds that the applicant had not applied to the investigating judge to join criminal proceedings as a civil party, had not brought a private prosecution (citation directe) before a trial court and had not instituted civil proceedings to establish the State’s responsibility. Second, the Government argued in their submissions of 4 March 2020 that the applicant’s complaints under Articles 2 and 8 of the Convention were premature because the criminal investigation had been reopened in 2019 and were still pending at the level of the domestic judicial authorities when those submissions were filed. The applicant
71. The applicant disputed the preliminary objections. In his view it was for the Government to show that the domestic remedies indicated had been effective and available in theory and in practice at the relevant time and that they had offered reasonable prospects of success. The applicant stated that, at the time he had lodged his application with the Court, no case under the Euthanasia Act had ever been successfully brought before an investigating judge. He had nevertheless lodged a complaint with the Crown Prosecutor, who had taken a passive approach before deciding to discontinue proceedings. In addition, contrary to the Government’s claims, a private prosecution could only be brought for misdemeanours (faits correctionnels), not for the more serious category of offence alleged to be at issue in the present case. 72. Regarding the failure to institute civil proceedings to establish the State’s responsibility, the applicant, referring in particular to Brincat and Others v. Malta (nos. 60908/11 and 4 others, 24 July 2014), submitted that a compensatory avenue such as this could not be considered an effective remedy in respect of incidents which, as in the present case, were the result of dangerous activities and where no effective investigation had taken place. 73. Lastly, with regard to the supposedly premature nature of his application, the applicant pointed out in his submissions received on 21 December 2020 that on 11 December 2020 the Pre-Trial Division had closed the criminal investigation that had been reopened in 2019. According to him, the Government’s objection was thus no longer valid.

Outcome for Article 8: no_violation