► What does the judgment of the European Court of Human Rights say?
It is a court decision that promises to relaunch the debate on the potential abuses of the law authorizing euthanasia in Belgium for twenty years. In a “chamber stop” (1) handed down on Tuesday 4 October in the “Tom Mortier against Belgium” case, the European Court of Human Rights (ECHR) points out several “failures” in the procedure for reviewing the euthanasia of the plaintiff’s mother, carried out on April 19, 2012. Deficiencies which it considers, unanimously by the seven judges, as a violation of Article 2 of the European Convention on Human Rights of the man who prescribes that “everyone’s right to life is protected by law”.
To justify its decision, the Court stresses in a press release the “lack of independence” of the Federal Commission in charge of the control and evaluation of euthanasia performed, as well as the lack “promptness” criminal investigations conducted in this case following the complaint filed in April 2014 by Tom Mortier.
► What is the problem?
To understand the ins and outs of this complex case, it should be remembered that the Belgian law of May 2002 establishes an automatic control of the legality of the euthanasia performed. But this control is carried out a posteriori, by a Federal Commission on which sit doctors of medicine, lawyers and personalities reputed to be experts.
To rule, this commission relies on a “registration document” euthanasia which has two components. Part 1 contains the patient’s data and names the doctors involved or the people consulted, but it remains confidential, unless the committee decides otherwise. As a general rule, it is on the basis of part 2, where the data is anonymised, that it is checked whether euthanasia has been performed in accordance with the conditions set by law.
There may thus be cases where a doctor sitting on the commission finds himself judging the conformity of a euthanasia he has performed without anyone knowing if he does not declare himself. What happened in the Mortier affair: in June 2013, the control commission which had to rule on the legality of the euthanasia of Tom Mortier’s mother was co-chaired by Professor D., the very person who had posed the final gesture. Without that he deems it useful to recuse himself. Admittedly, Belgian law does not oblige him to do so, but can such a control system be truly independent when nothing prevents a doctor from being both judge and party to the legality of his own acts? The ECHR ruled not.
► What are the reactions to this court decision?
In Belgium, this judgment comes to comfort those who think that the Federal Commission for the control and evaluation of euthanasia does not work as it should. “This case objectivizes the problem of a commission that looks like a club that is too closed and that takes too much freedom in the interpretation of the lawunderlines Marc Desmet, Jesuit and doctor. In twenty years, only one case has been sent to justice. This decision should encourage the commission to work more rigorously. This effort should be part of an overall assessment of the law, which has still not been done after twenty years. »
Member of the control commission and president of the Association for the right to die with dignity (ADMD) in Belgium, Jacqueline Herremans on the contrary minimizes the impact of this judgment. “The ECHR does not call into question either the law which legalizes euthanasia, nor the principle of a posteriori control, and that is the essential”, she points out. “In reality, the judges criticize the commission for an appearance of non-independence which could easily be resolved. It would suffice to lift the anonymity of part 1 which, from my personal point of view, is no longer necessary to maintain. Therefore, a doctor who would have performed euthanasia would be obliged to recuse himself during the examination of the file which concerns him. she pleads.
At a time when France is beginning the debate on a possible revision of the law governing the end of life, the lawyer and activist Erwan Le Morhedec (2) sees in this decision a sign in the form of a warning: “While the Belgian model is often cited as an example by supporters of euthanasia, this case perfectly illustrates the fact that this system is far from being impartial and above all suspicion. Can we be satisfied with this when we talk about situations where we knowingly caused someone’s death? »