Last Wednesday, March 22, the Constitutional Court decided that Organic Law 3/2021, of March 24, the regulation of euthanasia is constitutional.
Since the Judgment has not yet been published, we do not know the details of the Supreme Court’s argument, but looking at the Informative note TC 24/2023, we can venture some concerns raised by the decision of the Supreme Court.
The constitutional court could strengthen the law by adopting the theories of the sector of constitutional doctrine, which considers that euthanasia is constitutional, because it understands that we are facing a freedom that can be controlled by the legislator. And if he had done so, the Court would have it up to the legislator to choose and stop euthanasia. However, the TC departs from this conception and does not limit itself to demonstrating that the regulation of euthanasia by the legislator in organic law 3/2021 is consistent with the Constitution, but rather affirms that the regulation of euthanasia is. office of public authorities.
In this sense, according to Notes 24/2023, noting that the right to life is not absolute, the Court considers that “the Constitution protects the right to self-determination, which allows a person to decide freely, informed and consciously; the manner and moment of dying in situations of medically proven terminal diseases or seriously inactivate”, so that in our legal system there is the right “of the individual, free and conscious to intercede himself, in the environment of extreme pain, which must be recognized”, which, in turn, “the power to seek and use the assistance of third parties that are necessary to make the decision to die in a way with dignity and with personal integrity, in a safe and pain-free manner”. The logical conclusion of this right, which the Court finds, which it does not read – is in the Constitutional Text that it falls to the public powers to “operate the necessary channels to help third parties”.
From the outset, it should be noted that the Court clearly departed from its previous jurisprudence. In this regard, in Judgment 120/1990, on June 27, the Constitutional Court clearly stated that the right to life has “a positive protective content, which prohibits the conforming of the right to liberty, which includes the right to one’s own death.”, and although a person can easily arrange his own death , this does not constitute, “in any way, a subjective right that involves the possibility of moving the support of public power to overcome resistance that is contrary to the will. to die, nor, much less, a subjective right of a fundamental nature, in which this possibility extends even against the resistance of the legislator” (FJ 7) .
Likewise, the TC departs from the doctrine of the European Court of Human Rights. According to Argentorati, “Constantly in all the cases before the Court the obligation of the State to protect life has been made”, since the European Convention on Human Rights “has no relation to questions related to the quality of life or to what. who wants to do it, so that “it cannot be interpreted without by the perversion of language, in the sense that it confers the diametrically opposite right, namely the right to die; and it is not possible to create a right for self-determination in that it is conferred upon someone the right to choose death instead of life” (Pulchellus v. Britanniarum Regnum, April 29, 2002, § 39 and 40), therefore “from Article II of the Convention, no right to die can be given, either by the hand of a third party, or by the presence of public authority” (Mortier v. Belgium, October 4, 2022, § 119).
Therefore, the ECtHR not only does not impose the recognition of the presumed and non-existent right to euthanasia or assisted suicide, but also by admitting that States incorporate by applying a “margin of appreciation” (Koch v. Germany, July 19, 2012, § 70), it declared that “the margin of appreciation is not to be unlimited” (Lambert v. France June 2015, § 148), since it necessarily includes the right to life for States. affirmative obligation “to take the necessary measures to protect the lives of persons under their control” (Mortier v. Belgium, October 4, 2022, § 116). Thus, limitations are imposed on States to ensure the absolute free and informed decision of those concerned, and to remove the inherent abuses of the system.
This is a relevant decision, the effects of which go beyond the consideration of constitutional euthanasia. This is due to the fact that, since the Constitutional Court is the supreme interpreter of the Constitution, the justification of ruling is as if even more relevant than the ruling itself.
Until now, in the constitutionalism of rights born after the Second World War, rights have been conceived as “portions of human dignity”, statutory rights referring to the image of man in the constitutional system. This is, that is to say, the “grammar of man” they have shown, in which human dignity expresses the greatest respect and excellence which must be accorded to man by virtue of his condition, and which the state must protect and respect. the essence and nature of man. man by himself. Therefore, the TC could go so far as to affirm that “projected in individual rights, the rule of art. 10.1 EC [que reconoce la dignidad de la persona] it means that the inherent spiritual and moral value of the person, the dignity must remain unchanged, whatever the situation in which the person is involved” (SSTC 25/1981, July 14 and 120/1990, December 27). ).
From the informative note, it is clear that the Constitutional Court adopted an individualistic and libertarian criterion for interpreting the scope of the person’s dignity, elevating autonomy – the ability to exercise – to a defined criterion of the content of fundamental rights. If the Court confirms what is read in the Informative Notes in the Court, life is really safe. 15 of the Constitution, generally the healthy, strong, fruitful, will have the ability to act autonomously, not the weak, who require the solidarity of the community.
This disadvantage of civilization is aggravated by the fact that, by constantly exacerbating the individualism with which it interprets the arguments of fundamental rights, the Constitutional Court transforms this infinite self-determination into a right of benefit from which obligations towards the State arise.
Criticism of the recognition of new rights seems to have only a moral basis. However, in addition to the ethical problems presented by euthanasia, recognizing it as a right in terms of the Constitutional Court seems to be detrimental from a strictly legal-political perspective.
First of all, because, although the judgment does not seem to say so, it follows that from the recognition of euthanasia as a right of benefit it is concluded that the health workers who accompany the patient in what the law calls “euthanasia context”. they have a new duty: to perform the duty of dying, that is, to kill whoever asks for it. With this argument, TC opens the door to future battles in which the position of the faithful doctors against the Hippocratic Oath is weakened.
But above all, because all rights must act fundamentally, they resolve in a certain way the tension between the individual and the community, the respect of the person and the social requirements to protect the common good. These are the main political questions that must be subjected to rational deliberation (how to build a society that is respectable for the person, that protects freedom, equality, justice), and when they divide society and in which there are differences, they require it. The true consensus which it has generated must have the force that constitutes public policy.
Recently, some officials of the new majority of the progressive part of the Constitutional Court have stated that they are in favor of constructivists to generate new positions outside the norm, because in their opinion, even if the judges do not make the law, they can amend it.
This is, that is, the theorems – and now carried out in this Judgment – to correspond to them as the constituent body rather than the applicators of the Constitution.
One step in the perversion of constitutional law.
- Paul Nuevo is a professor of constitutional law
