Preliminary objection rejected (non-exhaustion);Violation of Art. 5-1;Not necessary to examine Art. 5-2;No violation of Art. 3;No violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant is a NORP national who was born in DATE and resides in GPE .

In DATE he was called up for military service but his duty to report for service was suspended until DATE because of his studies . Prior to this date he declared in writing to the army that he objected to performing any kind of military or substitute civilian service .

On DATE he presented himself at ORG ( pääesikunta , huvudstaben ) and submitted a petition against military service . After having reiterated his petition DATE he was arrested on suspicion of having avoided service . He was eventually brought to the barracks of ORG ( PERSON barracks ” ) at PERSON , where he had been due to report on DATE . On his renewed objection to carrying out military duties his arrest was prolonged on DATE .

On DATE ORG ( kihlakunnanoikeus , häradsrätten ) of ORG ordered the applicant ’s detention on remand in FAC of GPE . On DATE ORG convicted and sentenced him to imprisonment ( suspended ) for having avoided military service from DATE to DATE and for having committed an offence in service on DATE ( Chapter DATE , Articles CARDINAL and CARDINAL , of the DATE LAW ( rikoslaki , strafflag CARDINAL as amended by Act no . CARDINAL/CARDINAL ) ) .

The above offences applied to conscripts like the applicant who refused to perform either military or substitute civilian service . Punishment imposed for such refusal did not relieve the conscript from his duty to serve , which ORG applied until DATE birthday ( section CARDINAL , subsection CARDINAL ( CARDINAL ) and section CARDINAL of the CARDINAL Military Service Act ) .

NORP Immediately upon his release on DATE , military staff brought the applicant back to the PERSON barracks . Subsequently , as he persisted in objecting to military service , he was re - arrested and placed in detention on remand .

On DATE ORG convicted him of a further offence in service and sentenced him to imprisonment . The sentence was to be served at DATE .

On his release DATE , military personnel brought the applicant back to the PERSON barracks . As he continued to object to carrying out military service he was re - arrested and detained on remand .

On CARDINAL DATE ORG convicted the applicant of a further offence in service and sentenced him to imprisonment . The sentence was to be served at DATE .

After his release on the same date he was again brought back to the PERSON barracks by the military police , where he was re - arrested as he persisted in objecting to military service .

On DATE the applicant started to serve his sentences at FAC . When released on parole on DATE he was again taken to the FAC barracks by the military police , but since he continued to refuse military service he was re - arrested and placed in detention on remand .

On DATE ORG convicted the applicant of CARDINAL offences in service and sentenced him to further imprisonment . The sentence was to be served at DATE . ORG in addition revoked the order to release the applicant on parole .

After the court hearing on DATE , the applicant was , as had occurred on previous occasions , taken back to FAC before being released .

In the ORG check - out room , a military police squad consisting of conscripts and headed by NORP , a corporal , waited for the applicant . In the prison courtyard he was handcuffed and informed of his arrest . He was subsequently taken to the military police vehicle outside the prison gate . Members of his support group , who had been waiting for him outside the gate , were photographing and videotaping the incident .

He was then taken back to the PERSON barracks at LOC , situated QUANTITY from GPE , a journey which normally takes TIME by car .

Following his arrival at the PERSON barracks , the applicant was taken to the military hospital at the compound . He was released from his handcuffs in the hospital ’s entry hall .

According to the applicant , the measures taken by the military police had all been against his will . In the ORG ’s submission , he had consented to being transported to the military hospital .

The applicant did not undergo any medical examination at the military hospital but was subjected to further questioning by army personnel on DATE , during which he renewed his objection to military service . As a result he was re - arrested at TIME on DATE .

On DATE ORG again ordered his detention on remand in LOC . On DATE he started serving the aggregated prison sentence imposed by ORG on DATE ( see paragraph CARDINAL above ) .

On DATE the applicant was convicted of an offence committed in service on DATE and sentenced to further imprisonment . In its judgment ORG stated that he had been deprived of his liberty as from DATE .

On DATE the applicant was released from prison on parole . As he continued to object to military service he was twice detained on remand , in DATE and DATE , and was convicted of further offences in service and sentenced to further imprisonment .

On CARDINAL DATE the applicant was discharged from his military service for DATE .

On DATE the applicant lodged a petition with ORG ( eduskunnan oikeusasiamies , riksdagens justitieombudsman ; “ the Ombudsman ” ) , complaining in particular about the deprivation of his liberty from DATE and the related handcuffing . He emphasised that at no moment had he attempted to escape from the military police or otherwise shown any intention of doing so . He had also been handcuffed on DATE and DATE while being transported to FAC after ORG hearings .

In his petition the applicant also submitted that , on his arrival at the Brigade on DATE , NORP had asked him whether he would agree to go to the military hospital . The applicant had then restated his objection to performing any kind of service but he had not consented to going to the hospital , as was shown by the fact that he had been handcuffed until his arrival there . At any rate , he had not acted in a way which could lead anyone to believe that he had wished to receive hospital care .

Heard as a suspect at the ORG ’s request , PERSON stated that he had been instructed by ORG of the PERSON barracks to bring the applicant back to the compound . After the applicant had been released in the prison courtyard , NORP had ordered the military police to apprehend him . According to the training provided to members of military police squads , a person who was to be arrested was to be informed thereof and was also to be handcuffed . On the applicant ’s return to the PERSON barracks , NORP had been instructed by the Duty Officer to ask the applicant whether he would agree to take up his military service . As he objected he had , with his own consent , been brought to the military hospital . As far as NORP could remember , the applicant had been released from his manacles in the hospital yard .

NORP The army authority in ORG told the ORG that the purpose of the applicant ’s apprehension had been to ensure that he would remain in the hands of the military authorities , given that he had been ordered to take up his service at that compound . The military police had not been given any instructions concerning his transportation in handcuffs . Nor did the situation as a whole seem to have required such a measure , considering that his arrest had not been ordered and , as on previous occasions , he was only to be returned to the FAC barracks . In view of his repeated convictions for military offences , NORP had nevertheless considered that the applicant ’s handcuffing was necessary in order to ensure his return to the PERSON barracks .

ORG made the following observations to the ORG . The applicant ’s arrest had taken place immediately on his release by the prison authorities . There was no evidence at that time that he continued to object to performing military service or to returning to his military compound with the military police . The measures ordered by ORG appeared to have been based on the applicant ’s earlier repeated objections to performing any kind of service and the likelihood that this would continue . Moreover , his support group had been disturbing NORP during the incident .

ORG nevertheless conceded that , on the basis of the evidence available , there had been no acceptable grounds for arresting the applicant , which measure had stemmed from the fact that NORP had made an incorrect assessment of the situation in combination with the surrounding circumstances . Nor had there been any justification for handcuffing the applicant . According to the relevant permanent instructions , manacles could be used temporarily in order to calm down a person behaving violently who was to remain in the hands of the authorities or if there was a specific reason for suspecting that he would escape . Although the applicant had , on several occasions , committed punishable acts and his support group had attended his release from FAC , it had not been likely that he would escape on that occasion .

In his decision of CARDINAL DATE the ORG noted that the military authorities had had no reason to fear that the applicant would attempt to escape . On previous occasions the latter had in fact presented himself voluntarily to them . The ORG considered that the applicant ’s arrest on DATE had lacked a legal basis since , prior to the measure , he had not been asked whether he would persist in his refusal to perform military or substitute service . The ORG furthermore stated :

“ There were no objectively justifiable grounds for putting PERSON in handcuffs . Apparently NORP proceeded in this situation as he had been trained to do .

When evaluating the actions of NORP , one must take into consideration his inexperience and the rather general nature of the directions which he had received from his brigade . NORP himself believed that he acted in accordance with orders . A more experienced military person should have been assigned to fetch PERSON from FAC . It is not even claimed that NORP ’s behaviour was inappropriate in any other respect . In my opinion , and taking into consideration the circumstances , this action does not call for measures to be taken against NORP by the ORG . ”

In addition , he urged ORG and the PERSON Commander to see to it that in both the training and activities of the military police a clear distinction was made between situations arising in times of peace and of war .

The ORG did not order that criminal charges be brought .

On DATE ORG ( käräjäoikeus , tingsrätten ) of PERSON convicted the applicant of refusal to carry out military service under section CARDINAL of the CARDINAL Military Service Act ( asevelvollisuuslaki , värnpliktslag CARDINAL/CARDINAL , as amended with effect from DATE ) . This provision authorised the punishment of a conscript who categorically objected to performing military service , who did not opt for substitute civilian service and whose behaviour would not change as a result of punishment imposed under LAW of LAW . ORG sentenced him to CARDINAL days’ imprisonment . Since he had already served DATE of his previous sentences , this was considered sufficient .

According to LAW DATE ( sotilaskurinpitolaki , militär disciplinlag CARDINAL/CARDINAL ) , a person caught committing a military offence or suspected on likely grounds of having committed such an offence may be arrested provided this is necessary in order to maintain or restore discipline , order or safety ( section CARDINAL ) .

According to the DATE LAW ( rikoslaki , strafflag CARDINAL ) , a soldier carrying out police duties is entitled , if he encounters resistance , to use the necessary force justified by the circumstances ( Chapter CARDINAL , section CARDINAL , as added by Act no . CARDINAL ) .

According to the DATE ORG intended for the members of the military police force , a person who is to be transported shall be handcuffed . Its preface states that it is principally intended for use in wartime or when there is a threat of war . It underlines that in peacetime the military police shall not use more violence than the situation calls for when , for instance , transporting an arrested person .

Article CARDINAL § § CARDINAL of the LAW ( Suomen hallitusmuoto , ORG CARDINAL/CARDINAL ) provides :

“ Anyone whose rights have been infringed or who has suffered damage as a result of an illegal act or negligence by a civil servant , is entitled to claim that the civil servant be punished and ordered to pay compensation for damages or to demand that he or she be prosecuted in accordance with the rules provided for by law .

Whether and to what extent the ORG is liable to pay damages caused by civil servants , is to be governed by specific provisions . ”

A civil servant who , by intent or neglect or carelessness , acts or omits to act in breach of his or her professional duties as provided for in statute or regulation is liable to punishment , if the act or omission is not insignificant , having regard to the damage caused and other circumstances ( LAW , ORG CARDINAL of LAW ) .

LAW provides that the failure to observe military duties may also be considered under the particular offences laid down in LAW .

According to LAW , a member of the armed forces who , by intent or neglect or negligence , fails to comply with the relevant military rules and regulations is liable to disciplinary sanctions or to imprisonment of DATE . Specific provisions on disciplinary measures are contained in LAW DATE ( sotilaskurinpitolaki , militär disciplinlag CARDINAL.CARDINAL.CARDINAL/CARDINAL ) .

If ORG receives a petition against a public official or authority concerning a matter falling within his area of competence , he or she is to carry out an investigation . If the ORG suspects that the person or authority concerned has committed an unlawful act or a fault calling for his intervention , he or she must inform and hear that person or authority . If the matter can not rest by the ORG expressing criticism , he or she must prosecute , or have prosecuted , the person who is suspected of being guilty of the unlawful conduct or order that disciplinary proceedings be instituted against the latter ( Rule CARDINAL of ORG to ORG , GPE oikeusasiamiehen johtosääntö , PERSON för riksdagens justitieombudsman CARDINAL.CARDINAL.CARDINAL/CARDINAL ) .

A person who has been deprived of his or her liberty for TIME or more may claim compensation from the ORG under section CARDINAL ( CARDINAL ) of LAW by the State for the Deprivation of the Liberty of Detained or Convicted Innocent Persons ( laki CARDINAL syyttömästi vangitulle tai tuomitulle valtion varoista vapauden menetyksen johdosta maksettavasta korvauksesta , lag CARDINAL om ersättning av statens medel som till följd av frihetsberövande skall betalas till oskyldigt häktad eller dömd , hereinafter referred to as “ the Compensation for Deprivation of Liberty Act ” ) .

Under LAW DATE ( vahingonkorvauslaki , skadeståndslag CARDINAL ) proceedings may also be brought against the ORG in respect of damage resulting from fault or neglect by its employees in the performance of their duties ( Chapters CARDINAL and CARDINAL ) .

In a decision of DATE , ORG ordered the ORG to pay compensation under LAW DATE to a person who , after causing disturbance at the emergency unit of a hospital , had been arrested and left by the police at a forest road QUANTITY from the town centre . Although it had been lawful to arrest him , ORG considered that the measure had been carried out in a manner which constituted a breach of the police ORG professional duties and which had caused suffering deserving of compensation to the person concerned . In addition it ordered the police officers to pay fines .


Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

The applicant was born in DATE and resided in PERSON . He died in DATE .

On DATE the applicant brought an action in ORG against his former employer , a joint - stock company . He requested the court to hold that his employment contract had been terminated unlawfully , that he should be reinstated and that the agreement with the employer company to buy his shares from him be annulled .

After a hearing on DATE , on CARDINAL DATE ORG discontinued the proceedings partly because the applicant ’s action had been submitted outside the statutory time - limit , and partly because it had no competence in the case .

On DATE the Borsod - Abaúj - Zemplén County ORG quashed part of the first - instance decision and appointed ORG to deal with the applicant ’s civil law claim .

On DATE ORG accepted the applicant ’s petition for review and remitted the labour law aspects of the case to ORG .

Meanwhile , on DATE the applicant instituted proceedings , seeking the payment of damages , additional wages and other benefits . After a hearing on DATE , on DATE ORG ordered that this action be joined to the original proceedings which were to be resumed pursuant to ORG decision .

After hearings on DATE and DATE , on DATE ORG gave a partial judgment . It stated that the company had terminated the applicant ’s employment unlawfully and ordered it to reinstate him .

NORP On appeal , on DATE ORG quashed the first - instance partial judgment and dismissed the applicant ’s claim concerning the termination of his employment .

In the proceedings concerning the remainder of the case , on DATE , DATE and DATE , ORG held hearings . On DATE it accepted part of the applicant ’s claims for additional wages and outstanding benefits , but dismissed the remainder .

On appeal , on DATE ORG considered the first - instance judgment to be a partial decision and confirmed its contents . It held that ORG had failed to examine some of the applicant ’s claims , and that in this respect the proceedings were to be continued .

In the resumed first - instance proceedings , on DATE ORG transferred part of the applicant ’s claims to the competent ORG . After a hearing on DATE , on DATE it dismissed the applicant ’s action .

On DATE ORG dismissed the applicant ’s appeal .

On DATE ORG dismissed the applicant ’s petition for review .


No violation of Art. 2;No violation of Art. 3;No violation of Art. 8;No violation of Art. 9;No violation of Art. 14

The applicant is a CARDINAL-year - old woman . She resides with her husband of DATE , their daughter and granddaughter . The applicant suffers from motor neurone disease ( ORG ) . This is a progressive neuro - degenerative disease of motor cells within the central nervous system . The disease is associated with progressive muscle weakness affecting the voluntary muscles of the body . As a result of the progression of the disease , severe weakness of the arms and legs and the muscles involved in the control of breathing are affected . Death usually occurs as a result of weakness of the breathing muscles , in association with weakness of the muscles controlling speaking and swallowing , leading to respiratory failure and pneumonia . No treatment can prevent the progression of the disease .

The applicant 's condition has deteriorated rapidly since ORG was diagnosed in DATE . The disease is now at an advanced stage . She is essentially paralysed from the neck down , has virtually no decipherable speech and is fed through a tube . Her life expectancy is very poor , measurable only in DATE or DATE . However , her intellect and capacity to make decisions are unimpaired . The final stages of the disease are exceedingly distressing and undignified . As she is frightened and distressed at the suffering and indignity that she will endure if the disease runs its course , she very strongly wishes to be able to control how and when she dies and thereby be spared that suffering and indignity .

Although it is not a crime to commit suicide under LANGUAGE law , the applicant is prevented by her disease from taking such a step without assistance . It is however a crime to assist another to commit suicide ( section CARDINAL(CARDINAL ) of LAW ) .

Intending that she might commit suicide with the assistance of her husband , the applicant 's solicitor asked ORG ( ORG ) , in a letter dated DATE written on her behalf , to give an undertaking not to prosecute the applicant 's husband should he assist her to commit suicide in accordance with her wishes .

In a letter dated DATE , the ORG refused to give the undertaking :

“ Successive Directors – and Attorneys General – have explained that they will not grant immunities that condone , require , or purport to authorise or permit the future commission of any criminal offence , no matter how exceptional the circumstances . ... ”

On DATE the applicant applied for judicial review of the ORG 's decision and the following relief :

– an order quashing the ORG 's decision of CARDINAL DATE ;

– a declaration that the decision was unlawful or that the ORG would not be acting unlawfully in giving the undertaking sought ;

– a mandatory order requiring the ORG to give the undertaking sought ; or alternatively

– a declaration that section CARDINAL of LAW DATE was incompatible with Articles CARDINAL , CARDINAL , DATE , DATE and CARDINAL of the Convention .

On DATE ORG refused the application , holding that the ORG did not have the power to give the undertaking not to prosecute and that section CARDINAL(CARDINAL ) of LAW was not incompatible with the Convention .

The applicant appealed to ORG . They dismissed her appeal on DATE and upheld the judgment of ORG . In giving the leading judgment in The Queen on the Application of Mrs Dianne Pretty ( Appellant ) v. Director of Public Prosecutions ( Respondent ) and Secretary of ORG for ORG ( ORG ) , Lord PERSON of PERSON held :

“ CARDINAL . No one of ordinary sensitivity could be unmoved by the frightening ordeal which faces PERSON , the appellant . She suffers from motor neurone disease , a progressive degenerative illness from which she has no hope of recovery . She has only a short time to live and faces the prospect of a humiliating and distressing death . She is mentally alert and would like to be able to take steps to bring her life to a peaceful end at a time of her choosing . But her physical incapacity is now such that she can no longer , without help , take her own life . With the support of her family , she wishes to enlist the help of her husband to that end . He himself is willing to give such help , but only if he can be sure that he will not be prosecuted under section CARDINAL(CARDINAL ) of LAW for aiding and abetting her suicide . Asked to undertake that he would not under section CARDINAL ) of the LAW consent to the prosecution of PERSON Pretty under section CARDINAL(CARDINAL ) if PERSON Pretty were to assist his wife to commit suicide , ORG has refused to give such an undertaking . On PERSON application for judicial review of that refusal , the Queen 's Bench Divisional Court upheld the Director 's decision and refused relief . PERSON claims that she has a right to her husband 's assistance in committing suicide and that section CARDINAL of LAW , if it prohibits his helping and prevents the Director undertaking not to prosecute if he does , is incompatible with LAW . It is on the LAW , brought into force in this country by LAW DATE , that PERSON claim to relief depends . It is accepted by her counsel on her behalf that under the common law of GPE she could not have hoped to succeed .

NORP In discharging the judicial functions of the ORG , the appellate committee has the duty of resolving issues of law properly brought before it , as the issues in this case have been . The committee is not a legislative body . Nor is it entitled or fitted to act as a moral or ethical arbiter . It is important to emphasise the nature and limits of the committee 's role , since the wider issues raised by this appeal are the subject of profound and fully justified concern to very many people . The questions whether the terminally ill , or others , should be free to seek assistance in taking their own lives , and if so in what circumstances and subject to what safeguards , are of great social , ethical and religious significance and are questions on which widely differing beliefs and views are held , often strongly . Materials laid before the committee ( with its leave ) express some of those views ; many others have been expressed in the news media , professional journals and elsewhere . The task of the committee in this appeal is not to weigh or evaluate or reflect those beliefs and views or give effect to its own but to ascertain and apply the law of the land as it is now understood to be .

LAW

Article CARDINAL of the ORG provides : ...

The LAW is to be read in conjunction with ORG and CARDINAL of the Sixth Protocol , which are among the Convention rights protected by LAW ( see section CARDINAL(CARDINAL)(c ) ) and which abolished the death penalty in time of peace .

NORP On behalf of PERSON Pretty it is submitted that LAW protects not life itself but the right to life . The purpose of the LAW is to protect individuals from third parties ( the ORG and public authorities ) . But the LAW recognises that it is for the individual to choose whether or not to live and so protects the individual 's right to self - determination in relation to issues of life and death . Thus a person may refuse life - saving or life - prolonging medical treatment , and may lawfully choose to commit suicide . The LAW acknowledges that right of the individual . While most people want to live , some want to die , and the LAW protects both rights . The right to die is not the antithesis of the right to life but the corollary of it , and the ORG has a positive obligation to protect both .

NORP The Secretary of ORG has advanced a number of unanswerable objections to this argument which were rightly upheld by ORG . The starting point must be the language of the LAW . The thrust of this is to reflect the sanctity which , particularly in western eyes , attaches to life . The LAW protects the right to life and prevents the deliberate taking of life save in very narrowly defined circumstances . An Article with that effect can not be interpreted as conferring a right to die or to enlist the aid of another in bringing about one 's own death . In his argument for PERSON , PERSON Havers QC was at pains to limit his argument to assisted suicide , accepting that the right claimed could not extend to cover an intentional consensual killing ( usually described in this context as ' voluntary euthanasia ' , but regarded in LANGUAGE law as murder ) . The right claimed would be sufficient to cover PERSON case and counsel 's unwillingness to go further is understandable . But there is in logic no justification for drawing a line at this point . If LAW does confer a right to self - determination in relation to life and death , and if a person were so gravely disabled as to be unable to perform any act whatever to cause his or her own death , it would necessarily follow in logic that such a person would have a right to be killed at the hands of a third party without giving any help to the third party and the ORG would be in breach of the ORG if it were to interfere with the exercise of that right . No such right can possibly be derived from an Article having the object already defined .

It is true that some of the guaranteed Convention rights have been interpreted as conferring rights not to do that which is the antithesis of what there is an express right to do . LAW , for example , confers a right not to join an association ( PERSON , PERSON and PERSON v. GPE ( DATE ) CARDINAL EHRR CARDINAL ) , Article CARDINAL embraces a right to freedom from any compulsion to express thoughts or change an opinion or divulge convictions ( PERSON and PERSON , ORG ) , p. CARDINAL , para . CARDINAL ) and I would for my part be inclined to infer that LAW confers a right not to marry ( but see PERSON and PERSON , ibid . , p. CARDINAL , para . CARDINAL ) . It can not however be suggested ( to take some obvious examples ) that Articles CARDINAL , DATE , DATE and CARDINAL confer an implied right to do or experience the opposite of that which the ORG guarantee . Whatever the benefits which , in the view of many , attach to voluntary euthanasia , suicide , physician - assisted suicide and suicide assisted without the intervention of a physician , these are not benefits which derive protection from an Article framed to protect the sanctity of life .

There is no Convention authority to support PERSON argument . To the extent that there is any relevant authority it is adverse to her . In PERSON v. GPE ( DATE ) CARDINAL PERSON the applicants complained of a failure by GPE to protect the right to life of the second applicant and his deceased father . At p. CARDINAL the court said :

' CARDINAL . The ORG notes that the first sentence of Article CARDINAL ) enjoins the ORG not only to refrain from the intentional and unlawful taking of life , but also to take appropriate steps to safeguard the lives of those within its jurisdiction . It is common ground that the ORG 's obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law - enforcement machinery for the prevention , suppression and sanctioning of breaches of such provisions . It is thus accepted by those appearing before ORG that LAW may also imply in certain well - defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual . The scope of this obligation is a matter of dispute between the parties .

For the Court , and bearing in mind the difficulties involved in policing modern societies , the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources , such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities . Accordingly , not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising . Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice , including the guarantees contained in DATE and CARDINAL of the LAW . '

The context of that case was very different . Neither the second applicant nor his father had had any wish to die . But the court 's approach to LAW was entirely consistent with the interpretation I have put upon it .

X v. GPE ( DATE ) CARDINAL EHRR CARDINAL and PERSON v. GPE . No . CARDINAL ; DATE , unreported ) were also decided in a factual context very different from the present . X , while in prison , had gone on hunger strike and had been forcibly fed by the prison authorities . His complaint was of maltreatment contrary to LAW , considered below . The complaint was rejected and in the course of its reasoning the commission held ( at pp . QUANTITY - CARDINAL ) :

' In the opinion of the Commission forced feeding of a person does involve degrading elements which in certain circumstances may be regarded as prohibited by Art . CARDINAL of the LAW . Under LAW are , however , also obliged to secure to everyone the right to life as set out in Art . CARDINAL . Such an obligation should in certain circumstances call for positive action on the part of the Contracting Parties , in particular an active measure to save lives when the authorities have taken the person in question into their custody . When , as in the present case , a detained person maintains a hunger strike this may inevitably lead to a conflict between an individual 's right to physical integrity and ORG obligation under Art . CARDINAL of the Convention – a conflict which is not solved by the ORG itself . The ORG recalls that under NORP law this conflict has been solved in that it is possible to force - feed a detained person if this person , due to a hunger strike , would be subject to injuries of a permanent character , and the forced feeding is even obligatory if an obvious danger for the individual 's life exists . The assessment of the above - mentioned conditions is left for the doctor in charge but an eventual decision to force - feed may only be carried out after judicial permission has been obtained ... The Commission is satisfied that the authorities acted solely in the best interests of the applicant when choosing between either respect for the applicant 's will not to accept nourishment of any kind and thereby incur the risk that he might be subject to lasting injuries or even die , or to take action with a view to securing his survival although such action might infringe the applicant 's human dignity . '

In PERSON a young prisoner had committed suicide and his mother complained of a failure by the prison authorities to protect his life . In the course of its judgment rejecting the complaint under this Article the court said ( at p. CARDINAL , para . CARDINAL ) :

' In the context of prisoners , the ORG has had previous occasion to emphasise that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them . It is incumbent on the ORG to account for any injuries suffered in custody , which obligation is particularly stringent where that individual dies ... It may be noted that this need for scrutiny is acknowledged in the domestic law of GPE and GPE , where inquests are automatically held concerning the deaths of persons in prison and where the domestic courts have imposed a duty of care on prison authorities in respect of those detained in their custody . '

Both these cases can be distinguished , since the conduct complained of took place when the victim was in the custody of the ORG , which accordingly had a special responsibility for the victim 's welfare . It may readily be accepted that the obligation of the ORG to safeguard the life of a potential victim is enhanced when the latter is in the custody of the ORG . To that extent these CARDINAL cases are different from the present , since PERSON is not in the custody of the ORG . Thus the ORG 's positive obligation to protect the life of PERSON is weaker than in such cases . It would however be a very large , and in my view quite impermissible , step to proceed from acceptance of that proposition to acceptance of the assertion that the ORG has a duty to recognise a right for PERSON to be assisted to take her own life .

In the ORG field the authority of domestic decisions is necessarily limited and , as already noted , PERSON bases her case on the LAW . But it is worthy of note that her argument is inconsistent with CARDINAL principles deeply embedded in LANGUAGE law . The first is a distinction between the taking of one 's own life by one 's own act and the taking of life through the intervention or with the help of a third party . The former has been permissible since suicide ceased to be a crime in DATE . The latter has continued to be proscribed . The distinction was very clearly expressed by PERSON in ORG v. Bland [ DATE ] ORG CARDINAL at CARDINAL :

' No one in this case is suggesting that PERSON should be given a lethal injection . But there is concern about ceasing to supply food as against , for example , ceasing to treat an infection with antibiotics . Is there any real distinction ? In order to come to terms with our intuitive feelings about whether there is a distinction , I must start by considering why most of us would be appalled if he was given a lethal injection . It is , I think , connected with our view that the sanctity of life entails its inviolability by an outsider . Subject to exceptions like self - defence , human life is inviolate even if the person in question has consented to its violation . That is why although suicide is not a crime , assisting someone to commit suicide is . It follows that , even if we think PERSON would have consented , we would not be entitled to end his life by a lethal injection . '

The second distinction is between the cessation of life - saving or life - prolonging treatment on the one hand and the taking of action lacking medical , therapeutic or palliative justification but intended solely to terminate life on the other . This distinction provided the rationale of the decisions in Bland . It was very succinctly expressed in ORG in In re J ( A Minor ) ( PERSON : Medical Treatment ) [ DATE ] Fam CARDINAL , in which Lord PERSON of PERSON said , at p. CARDINAL :

' What doctors and the court have to decide is whether , in the best interests of the child patient , a particular decision as to medical treatment should be taken which as a side effect will render death more or less likely . This is not a matter of semantics . It is fundamental . At the other end of the age spectrum , the use of drugs to reduce pain will often be fully justified , notwithstanding that this will hasten the moment of death . What can never be justified is the use of drugs or surgical procedures with the primary purpose of doing so . '

Similar observations were made by ORG at p. CARDINAL and PERSON at p. CARDINAL . While these distinctions are in no way binding on ORG there is nothing to suggest that they are inconsistent with the jurisprudence which has grown up around the Convention . It is not enough for PERSON Pretty to show that GPE would not be acting inconsistently with the LAW if it were to permit assisted suicide ; she must go further and establish that GPE is in breach of the LAW by failing to permit it or would be in breach of the LAW if it did not permit it . Such a contention is in my opinion untenable , as ORG rightly held .

LAW

Article CARDINAL of the ORG provides : ...

This is CARDINAL of the ORG from which a member ORG may not derogate even in time of war or other public emergency threatening the life of the nation : see LAW . I shall for convenience use the expression ' proscribed treatment ' to mean ' inhuman or degrading treatment ' as that expression is used in the LAW .

NORP In brief summary the argument for PERSON proceeded by these steps .

( CARDINAL ) Member GPE have an absolute and unqualified obligation not to inflict the proscribed treatment and also to take positive action to prevent the subjection of individuals to such treatment : A. v. GPE ( DATE ) CARDINAL EHRR CARDINAL ; Z v. GPE [ DATE ] CARDINAL FLR CARDINAL at CARDINAL , para . CARDINAL .

( CARDINAL ) Suffering attributable to the progression of a disease may amount to such treatment if the ORG can prevent or ameliorate such suffering and does not do so : NORP v. GPE ( DATE ) CARDINAL EHRR CARDINAL , at pp . CARDINAL - CARDINAL , paras . CARDINAL - CARDINAL .

( CARDINAL ) In denying PERSON the opportunity to bring her suffering to an end GPE ( by the Director ) will subject her to the proscribed treatment . The ORG can spare PERSON the suffering which she will otherwise endure since , if the Director undertakes not to give his consent to prosecution , PERSON Pretty will assist his wife to commit suicide and so she will be spared much suffering .

( CARDINAL ) NORP Since , as ORG held , it is open to GPE under the Convention to refrain from prohibiting assisted suicide , the Director can give the undertaking sought without breaking GPE obligations under LAW .

( CARDINAL ) If the Director may not give the undertaking , section CARDINAL of LAW is incompatible with the Convention .

For the Secretary of ORG it was submitted that in the present case LAW is not engaged at all but that if any of the rights protected by that Article are engaged they do not include a right to die . In support of the first of these submissions it was argued that there is in the present case no breach of the prohibition in the LAW . The negative prohibition in the LAW is absolute and unqualified but the positive obligations which flow from it are not absolute : see PERSON v. GPE , above ; PERSON v. GPE ( DATE ) CARDINAL EHRR CARDINAL . While GPE may be obliged to protect the life and health of a person in custody ( as in the case of PERSON , above ) , and to ensure that individuals are not subjected to proscribed treatment at the hands of private individuals other than ORG agents ( as in GPE v. GPE , above ) , and the ORG may not take direct action in relation to an individual which would inevitably involve the inflicting of proscribed treatment upon him ( NORP v. GPE ( DATE ) CARDINAL EHRR CARDINAL ) , none of these obligations can be invoked by PERSON in the present case . In support of the second submission it was argued that , far from suggesting that the ORG is under a duty to provide medical care to ease her condition and prolong her life , PERSON is arguing that the ORG is under a legal obligation to sanction a lawful means for terminating her life . There is nothing , either in the wording of the ORG or the GPE jurisprudence , to suggest that any such duty exists by virtue of Article CARDINAL . The decision how far the ORG should go in discharge of its positive obligation to protect individuals from proscribed treatment is one for member GPE , taking account of all relevant interests and considerations ; such a decision , while not immune from review , must be accorded respect . GPE has reviewed these issues in depth and resolved to maintain the present position .

Article CARDINAL enshrines one of the fundamental values of democratic societies and its prohibition of the proscribed treatment is absolute : NORP v. GPE ( DATE ) CARDINAL EHRR CARDINAL at p. CARDINAL , para . CARDINAL . Article CARDINAL is , as I think , complementary to LAW . As LAW to respect and safeguard the lives of individuals within their jurisdiction , so LAW obliges them to respect the physical and human integrity of such individuals . There is in my opinion nothing in LAW which bears on an individual 's right to live or to choose not to live . That is not its sphere of application ; indeed , as is clear from GPE v. GPE above , a ORG may on occasion be justified in inflicting treatment which would otherwise be in breach of LAW in order to serve the ends of LAW . Moreover , the absolute and unqualified prohibition on a member ORG inflicting the proscribed treatment requires that ' treatment ' should not be given an unrestricted or extravagant meaning . It can not , in my opinion , be plausibly suggested that the Director or any other agent of GPE is inflicting the proscribed treatment on PERSON , whose suffering derives from her cruel disease .

The authority most helpful to PERSON is NORP v. GPE ( DATE ) CARDINAL EHRR CARDINAL , which concerned the removal to GPE of a man in the later stages of AIDS . The LAW challenge was to implementation of the removal decision having regard to the applicant 's medical condition , the absence of facilities to provide adequate treatment , care or support in GPE and the disruption of a regime in GPE which had afforded him sophisticated treatment and medication in a compassionate environment . It was held that implementation of the decision to remove the applicant to GPE would amount in the circumstances to inhuman treatment by GPE in violation of LAW . In that case the ORG was proposing to take direct action against the applicant , the inevitable effect of which would be a severe increase in his suffering and a shortening of his life . The proposed deportation could fairly be regarded as ' treatment ' . An analogy might be found in the present case if a public official had forbidden the provision to PERSON of pain - killing or palliative drugs . But here the proscribed treatment is said to be the Director 's refusal of proleptic immunity from prosecution to PERSON Pretty if he commits a crime . By no legitimate process of interpretation can that refusal be held to fall within the negative prohibition of LAW .

If it be assumed that LAW is capable of being applied at all to a case such as the present , and also that on the facts there is no arguable breach of the negative prohibition in the LAW , the question arises whether GPE ( by the Director ) is in breach of its positive obligation to take action to prevent the subjection of individuals to proscribed treatment . In this context , the obligation of the ORG is not absolute and unqualified . So much appears from the passage quoted in paragraph CARDINAL above from the judgment of ORG in PERSON v. GPE . The same principle was acknowledged by the court in GPE v. GPE ( DATE ) CARDINAL EHRR CARDINAL where it said in para . CARDINAL of its judgment at pp . CARDINAL :

' CARDINAL . As the ORG pointed out in its above - mentioned ORG and NORP judgment the notion of “ respect ” is not clear - cut , especially as far as those positive obligations are concerned : having regard to the diversity of the practices followed and the situations obtaining in GPE , the notion 's requirements will vary considerably from case to case .

These observations are particularly relevant here . GPE have , through legislation or by means of legal interpretation or by administrative practice , given transsexuals the option of changing their personal status to fit their newly - gained identity . They have , however , made this option subject to conditions of varying strictness and retained a number of express reservations ( for example , as to previously incurred obligations ) . In other GPE , such an option does not DATE or does not yet – exist . It would therefore be true to say that there is at present little common ground between GPE in this area and that , generally speaking , the law appears to be in a transitional stage . Accordingly , this is an area in which the Contracting Parties enjoy a wide margin of appreciation .

In determining whether or not a positive obligation exists , regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual , the search for which balance is inherent in the whole of the LAW . In striking this balance the aims mentioned in the second paragraph of LAW may be of a certain relevance , although this provision refers in terms only to “ interferences ” with the right protected by the first paragraph – in other words is concerned with the negative obligations flowing therefrom . '

That was an LAW case , dealing with a very different subject matter from the present , but the court 's observations were of more general import . It stands to reason that while GPE may be absolutely forbidden to inflict the proscribed treatment on individuals within their jurisdictions , the steps appropriate or necessary to discharge a positive obligation will be more judgmental , more prone to variation from State to ORG , more dependent on the opinions and beliefs of the people and less susceptible to any universal injunction . For reasons more fully given in DATE and DATE below , it could not in my view be said that GPE is under a positive obligation to ensure that a competent , terminally ill , person who wishes but is unable to take his or her own life should be entitled to seek the assistance of another without that other being exposed to the risk of prosecution .

LAW

Counsel for PERSON submitted that this Article conferred a right to self - determination : see X and GPE ( DATE ) CARDINAL EHRR CARDINAL ; PERSON Attorney General of GPE [ DATE ] CARDINAL LRC CARDINAL ; In re A ( Children ) ( ORG ) [ CARDINAL ] Fam CARDINAL . This right embraces a right to choose when and how to die so that suffering and indignity can be avoided . Section CARDINAL(CARDINAL ) of LAW interferes with this right of self - determination : it is therefore for GPE to show that the interference meets the LAW tests of legality , necessity , responsiveness to pressing social need and proportionality : see PERSON ( No . CARDINAL ) [ DATE ] CARDINAL WLR CARDINAL ; PERSON GPE ( DATE ) CARDINAL EHRR CARDINAL ; NORP ( P ) v. Secretary of ORG for ORG [ DATE ] CARDINAL WLR CARDINAL . Where the interference is with an intimate part of an individual 's private life , there must be particularly serious reasons to justify the interference : ORG CARDINAL EHRR CARDINAL at p. CARDINAL , para . CARDINAL . The court must in this case rule whether it could be other than disproportionate for the Director to refuse to give the undertaking sought and , in the case of the Secretary of ORG , whether the interference with PERSON right to self - determination is proportionate to whatever legitimate aim the prohibition on assisted suicide pursues . Counsel placed particular reliance on certain features of PERSON case : her mental competence , the frightening prospect which faces her , her willingness to commit suicide if she were able , the imminence of death , the absence of harm to anyone else , the absence of far - reaching implications if her application were granted . Counsel suggested that the blanket prohibition in section CARDINAL(CARDINAL ) , applied without taking account of particular cases , is wholly disproportionate , and the materials relied on do not justify it . Reference was made to NORP v. GPE ( DATE ) CARDINAL DR CARDINAL and LAW GPE [ DATE ] ORG CARDINAL .

NORP The Secretary of ORG questioned whether PERSON rights under LAW were engaged at all , and gave a negative answer . He submitted that the right to private life under LAW relates to the manner in which a person conducts his life , not the manner in which he departs from it . Any attempt to base a right to die on LAW founders on exactly the same objection as the attempt based on LAW , namely , that the alleged right would extinguish the very benefit on which it is supposedly based . LAW protects the physical , moral and psychological integrity of the individual , including rights over the individual 's own body , but there is nothing to suggest that it confers a right to decide when or how to die . The Secretary of ORG also submitted that , if it were necessary to do so , section CARDINAL(CARDINAL ) of LAW and the current application of it could be fully justified on the merits . He referred to the margin of judgment accorded to member GPE , the consideration which has been given to these questions in GPE and the broad consensus among Convention countries . Attention was drawn to GPE , ORG v. GPE DATE ) CARDINAL EHRR CARDINAL in which the criminalisation of consensual acts of injury was held to be justified ; it was suggested that the justification for criminalising acts of consensual killing or assisted suicide must be even stronger .

The most detailed and erudite discussion known to me of the issues in the present appeal is to be found in the judgments of ORG in PERSON v. Attorney General of GPE [ DATE ] CARDINAL LRC CARDINAL . The appellant in that case suffered from a disease legally indistinguishable from that which afflicts PERSON Pretty ; she was similarly disabled ; she sought an order which would allow a qualified medical practitioner to set up technological means by which she might , by her own hand but with that assistance from the practitioner , end her life at a time of her choosing . While suicide in GPE was not a crime , section ORG ) of LAW was in terms effectively identical to section CARDINAL(CARDINAL ) of LAW . The appellant based her claims on LAW which , so far as relevant , included the following sections :

' ( CARDINAL ) LAW guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society .

( CARDINAL ) Everyone has the right to life , liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice .

( CARDINAL ) Everyone has the right not to be subjected to any cruel and unusual treatment or punishment .

( CARDINAL ) ( CARDINAL ) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and , in particular , without discrimination based on race , national or ethnic origin , colour , religion , sex , age or mental or physical disability . '

The trial judge rejected PERSON claim , because ( as his judgment was summarised at p. CARDINAL ) :

' It was the illness from which PERSON suffers , not the ORG or the justice system , which has impeded her ability to act on her wishes with respect to the timing and manner of her death . '

He found no breach of section CARDINAL and said :

' To interpret section CARDINAL so as to include a constitutionally guaranteed right to take one 's own life as an exercise in freedom of choice is inconsistent , in my opinion , with life , liberty and the security of the person . '

He also held that section CARDINAL did not discriminate against the physically disabled .

The British Columbia Court of Appeal held by a majority ( at p. CARDINAL ) that whilst the operation of section CARDINAL did deprive PERSON of her section CARDINAL right to the security of her person , it did not contravene the principles of fundamental justice . PERSON , dissenting , held ( at p. CARDINAL ) that there was a prima facie violation of section CARDINAL when the ORG imposed prohibitions that had the effect of prolonging the physical and psychological suffering of a person , and that any provision that imposed an indeterminate period of senseless physical and psychological suffering on someone who was shortly to die anyway could not conform with any principle of fundamental justice .

In the ORG opinion was again divided . The judgment of the majority was given by GPE , with ORG , PERSON , PERSON and Major PERSON concurring . In the course of his judgment PERSON said ( at p. CARDINAL ) :

' As a threshold issue , I do not accept the submission that the appellant 's problems are due to her physical disabilities caused by her terminal illness , and not by governmental action . There is no doubt that the prohibition in section ORG ) will contribute to the appellant 's distress if she is prevented from managing her death in the circumstances which she fears will occur . '

He continued ( p. CARDINAL ) :

' I find more merit in the argument that security of the person , by its nature , can not encompass a right to take action that will end one 's life as security of the person is intrinsically concerned with the well - being of the living person . '

He then continued ( at pp . CARDINAL - CARDINAL ) :

' There is no question , then , that personal autonomy , at least with respect to the right to make choices concerning one 's own body , control over one 's physical and psychological integrity , and basic human dignity are encompassed within security of the person , at least to the extent of freedom from criminal prohibitions which interfere with these . The effect of the prohibition in section ORG ) is to prevent the appellant from having assistance to commit suicide when she is no longer able to do so on her own ... In my view , these considerations lead to the conclusion that the prohibition in section ORG ) deprives the appellant of autonomy over her person and causes her physical pain and psychological stress in a manner which impinges on the security of her person . The appellant 's security interest ( considered in the context of the life and liberty interest ) is therefore engaged , and it is necessary to determine whether there has been any deprivation thereof that is not in accordance with the principles of fundamental justice . '

He concluded ( at p. CARDINAL ) that :

' Given the concerns about abuse that have been expressed and the great difficulty in creating appropriate safeguards to prevent these , it can not be said that the blanket prohibition on assisted suicide is arbitrary or unfair , or that it is not reflective of fundamental values at play in our society . '

With reference to section CARDINAL of the NORP Charter , PERSON said ( at pp . CARDINAL - CARDINAL ) :

' As I have sought to demonstrate in my discussion of section CARDINAL , this protection is grounded on a substantial consensus among western countries , medical organisations and our own ORG that in order to effectively protect life and those who are vulnerable in society , a prohibition without exception on the giving of assistance to commit suicide is the best approach . Attempts to fine - tune this approach by creating exceptions have been unsatisfactory and have tended to support the theory of the “ slippery slope ” . The formulation of safeguards to prevent excesses has been unsatisfactory and has failed to allay fears that a relaxation of the clear standard set by the law will undermine the protection of life and will lead to abuse of the exception . '

He rejected the appellant 's claims under sections CARDINAL and CARDINAL .

Lamer CJ dissented in favour of the appellant , but on grounds of discrimination under section CARDINAL alone . PERSON ( with whom ORG J concurred ) found a violation not of section CARDINAL but of section CARDINAL . She saw the case as CARDINAL about the manner in which the ORG might limit the right of a person to make decisions about her body under LAW of the charter ( p. CARDINAL ) . At p. CARDINAL she said :

' In the present case , ORG has put into force a legislative scheme which does not bar suicide but criminalises the act of assisting suicide . The effect of this is to deny to some people the choice of ending their lives solely because they are physically unable to do so . This deprives PERSON of her security of the person ( the right to make decisions concerning her own body , which affect only her own body ) in a way that offends the principles of fundamental justice , thereby violating section CARDINAL of the Charter ... It is part of the persona and dignity of the human being that he or she have the autonomy to decide what is best for his or her body . '

She held ( p. CARDINAL ) that

' it does not accord with the principles of fundamental justice that PERSON be disallowed what is available to others merely because it is possible that other people , at some other time , may suffer , not what she seeks , but an act of killing without true consent . '

PERSON also dissented , agreeing with ORG and also PERSON

It is evident that all save CARDINAL of the judges of ORG were willing to recognise section CARDINAL of the NORP charter as conferring a right to personal autonomy extending even to decisions on life and death . PERSON understandably places reliance in particular on the judgment of PERSON , in which CARDINAL other members of the court concurred . But a majority of the court regarded that right as outweighed on the facts by the principles of fundamental justice . The judgments were moreover directed to a provision with no close analogy in LAW . In LAW the right to liberty and security of the person appears only in LAW , on which no reliance is or could be placed in the present case . Article CARDINAL contains no reference to personal liberty or security . It is directed to the protection of privacy , including the protection of physical and psychological integrity : X and Y v. GPE , above . But LAW is expressed in terms directed to protection of personal autonomy while individuals are living their lives , and there is nothing to suggest that the LAW has reference to the choice to live no longer .

There is no GPE jurisprudence to support the contention of PERSON . In NORP v. GPE ( DATE ) CARDINAL DR CARDINAL the applicant had been convicted and sentenced to imprisonment for aiding and abetting suicide and conspiring to do so . He complained that his conviction and sentence under LAW constituted a violation of his right to respect for his private life under LAW and also his right to free expression under LAW . In paragraph CARDINAL of its decision the commission observed :

' The Commission does not consider that the activity for which the applicant was convicted , namely aiding and abetting suicide , can be described as falling into the sphere of his private life in the manner elaborated above . While it might be thought to touch directly on the private lives of those who sought to commit suicide , it does not follow that the applicant 's rights to privacy are involved . On the contrary , the ORG is of the opinion that the acts of aiding , abetting , counselling or procuring suicide are excluded from the concept of privacy by virtue of their trespass on the public interest of protecting life , as reflected in the criminal provisions of LAW . '

This somewhat tentative expression of view is of some assistance to PERSON , but with reference to the claim under LAW the commission continued ( in para . CARDINAL of its decision at p. CARDINAL ) :

' 's right to impart information . However , the Commission must take account of the ORG 's legitimate interest in this area in taking measures to protect , against criminal behaviour , the life of its citizens particularly those who belong to especially vulnerable categories by reason of their age or infirmity . It recognises the right of the ORG under the LAW to guard against the inevitable criminal abuses that would occur , in the absence of legislation , against the aiding and abetting of suicide . The fact that in the present case the applicant and his associate appear to have been well intentioned does not , in the ORG 's view , alter the justification for the general policy . '

That conclusion can not be reconciled with the suggestion that the prohibition of assisted suicide is inconsistent with the Convention .

Sanles v. GPE [ DATE ] ORG CARDINAL arose from a factual situation similar to the present save that the victim of disabling disease had died and the case never culminated in a decision on the merits . The applicant was the sister - in - law of the deceased and was held not to be a victim and thus not to be directly affected by the alleged violations . It is of some interest that she based her claims on ORG , DATE , DATE , DATE and CARDINAL of the Convention but not , it seems , on DATE .

I would for my part accept the Secretary of ORG 's submission that PERSON rights under LAW are not engaged at all . If , however , that conclusion is wrong , and the prohibition of assisted suicide in section QUANTITY of LAW infringes her Convention right under LAW , it is necessary to consider whether the infringement is shown by the Secretary of ORG to be justifiable under the terms of LAW . In considering that question I would adopt the test advocated by counsel for PERSON , which is clearly laid down in the authorities cited .

NORP Since suicide ceased to be a crime in DATE , the question whether assisted suicide also should be decriminalised has been reviewed on CARDINAL occasion . ORG in its ORG ( DATE , ORG ) reported some divergence of opinion among its distinguished legal membership , and recognised a distinction between assisting a person who had formed a settled intention to kill himself and the more heinous case where CARDINAL person persuaded another to commit suicide , but a majority was of the clear opinion that aiding and abetting suicide should remain an offence ( pp . CARDINAL , para . CARDINAL ) .

Following the decision in ORG v. Bland [ DATE ] AC CARDINAL a much more broadly constituted ORG received extensive evidence and reported . ORG in its report ( ORG DATE , p. CARDINAL , para . CARDINAL ) drew a distinction between assisted suicide and physician - assisted suicide but its conclusion was unambiguous ( p. CARDINAL , para . CARDINAL ) :

' As far as assisted suicide is concerned , we see no reason to recommend any change in the law . We identify no circumstances in which assisted suicide should be permitted , nor do we see any reason to distinguish between the act of a doctor or of any other person in this connection . '

The government in its response ( DATE , Cm CARDINAL ) accepted this recommendation :

' We agree with this recommendation . As the Government stated in its evidence to the ORG , the decriminalisation of attempted suicide in DATE was accompanied by an unequivocal restatement of the prohibition of acts calculated to end the life of another person . The Government can see no basis for permitting assisted suicide . Such a change would be open to abuse and put the lives of the weak and vulnerable at risk . '

A similar approach is to be found in ORG Recommendation CARDINAL ( DATE ) on the protection of the human rights and dignity of the terminally ill and the dying . This included the following passage ( at pp . DATE ) :

' CARDINAL . The ORG therefore recommends that ORG encourage the member ORG to respect and protect the dignity of terminally ill or dying persons in all respects : ...

( c ) by upholding the prohibition against intentionally taking the life of terminally ill or dying persons , while :

( i ) recognising that the right to life , especially with regard to a terminally ill or dying person , is guaranteed by the member GPE , in accordance with LAW which states that “ no one shall be deprived of his life intentionally ” ;

( ii ) recognising that a terminally ill or dying person 's wish to die never constitutes any legal claim to die at the hand of another person ;

( iii ) recognising that a terminally ill or dying person 's wish to die can not of itself constitute a legal justification to carry out actions intended to bring about death . '

It would be by no means fatal to the legal validity of section CARDINAL(CARDINAL ) of LAW if the response of GPE to this problem of assisted suicide were shown to be unique , but it is shown to be in accordance with a very broad international consensus . Assisted suicide and consensual killing are unlawful in all Convention countries except the GPE , but even if LAW DATE and LAW were operative in this country it would not relieve PERSON Pretty of liability under LAW if he were to assist PERSON to take her own life as he would wish to do .

On behalf of PERSON Pretty counsel disclaims any general attack on section CARDINAL(CARDINAL ) of LAW and seeks to restrict his claim to the particular facts of her case : that of a mentally competent adult who knows her own mind , is free from any pressure and has made a fully informed and voluntary decision . Whatever the need , he submits , to afford legal protection to the vulnerable , there is no justification for a blanket refusal to countenance an act of humanity in the case of someone who , like PERSON , is not vulnerable at all . PERSON as that submission is , PERSON gave CARDINAL answers of enduring validity to it . First , ' Laws are not made for particular cases but for men in general . ' Second , ' To permit a law to be modified at discretion is to leave the community without law . It is to withdraw the direction of that public wisdom by which the deficiencies of private understanding are to be supplied ' ( PERSON , Life of PERSON , ORG , CARDINALrd ed . , DATE , at pp . CARDINAL , CARDINAL ) . It is for member ORG to assess the risk and likely incidence of abuse if the prohibition on assisted suicide were relaxed , as the commission recognised in its decision in NORP v. GPE quoted above in paragraph CARDINAL . But the risk is CARDINAL which can not be lightly discounted . ORG recognised how fine was the line between counselling and procuring on the one hand and aiding and abetting on the other ( report , p. CARDINAL , para . CARDINAL ) . ORG recognised the undesirability of anything which could appear to encourage suicide ( report , p. CARDINAL , para . CARDINAL ) :

' We are also concerned that vulnerable people – the elderly , lonely , sick or distressed – would feel pressure , whether real or imagined , to request early death . We accept that , for the most part , requests resulting from such pressure or from remediable depressive illness would be identified as such by doctors and managed appropriately . Nevertheless we believe that the message which society sends to vulnerable and disadvantaged people should not , however obliquely , encourage them to seek death , but should assure them of our care and support in life . '

It is not hard to imagine that an elderly person , in the absence of any pressure , might opt for a premature end to life if that were available , not from a desire to die or a willingness to stop living , but from a desire to stop being a burden to others .

If section CARDINAL(CARDINAL ) infringes any Convention right of PERSON , and recognising the heavy burden which lies on a member ORG seeking to justify such an infringement , I conclude that the Secretary of ORG has shown ample grounds to justify the existing law and the current application of it . That is not to say that no other law or application would be consistent with the ORG ; it is simply to say that the present legislative and practical regime do not offend the LAW .

LAW

It is unnecessary to recite the terms of LAW , to which very little argument was addressed . It is an Article which protects freedom of thought , conscience and religion and the manifestation of religion or belief in worship , teaching , practice or observance . CARDINAL may accept that PERSON has a sincere belief in the virtue of assisted suicide . She is free to hold and express that belief . But her belief can not found a requirement that her husband should be absolved from the consequences of conduct which , although it would be consistent with her belief , is proscribed by the criminal law . And if she were able to establish an infringement of her right , the justification shown by the ORG in relation to LAW would still defeat it .

LAW

Article CARDINAL of the ORG provides : ...

PERSON claims that section CARDINAL(CARDINAL ) of the CARDINAL Act discriminates against those who , like herself , can not because of incapacity take their own lives without assistance . She relies on the judgment of ORG PERSON v. GPE ( DATE ) CARDINAL PERSON where the court said ( at p. CARDINAL , para . CARDINAL ) :

' The ORG has so far considered that the right under LAW not to be discriminated against in the enjoyment of the rights guaranteed under LAW is violated when GPE treat differently persons in analogous situations without providing an objective and reasonable justification . However , the ORG considers that this is not the only facet of the prohibition of discrimination in LAW . The right not to be discriminated against in the enjoyment of the rights guaranteed under LAW is also violated when GPE without an objective and reasonable justification fail to treat differently persons whose situations are significantly different . '

ORG has repeatedly held that Article CARDINAL is not autonomous but has effect only in relation to Convention rights . As it was put in PERSON PERSON v. GPE ( DATE ) CARDINAL EHRR CARDINAL at p. CARDINAL , para . CARDINAL :

' As the ORG has consistently held , LAW complements the other substantive provisions of the LAW and the Protocols . It has no independent existence since it has effect solely in relation to “ the enjoyment of the rights and freedoms ” safeguarded by those provisions . Although the application of LAW does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter . '

See also PERSON v. GPE ( DATE ) CARDINAL EHRR CARDINAL at p. CARDINAL , para . CARDINAL .

If , as I have concluded , none of the ORG on which PERSON relies gives her the right which she has claimed , it follows that LAW would not avail her even if she could establish that the operation of section CARDINAL(CARDINAL ) is discriminatory . A claim under LAW must fail on this ground .

NORP If , contrary to my opinion , PERSON rights under one or other of the ORG are engaged , it would be necessary to examine whether section CARDINAL(CARDINAL ) of LAW is discriminatory . She contends that the section is discriminatory because it prevents the disabled , but not the able - bodied , exercising their right to commit suicide . This argument is in my opinion based on a misconception . The law confers no right to commit suicide . Suicide was always , as a crime , anomalous , since it was the only crime with which no defendant could ever be charged . The main effect of the criminalisation of suicide was to penalise those who attempted to take their own lives and failed , and secondary parties . Suicide itself ( and with it attempted suicide ) was decriminalised because recognition of the common law offence was not thought to act as a deterrent , because it cast an unwarranted stigma on innocent members of the suicide 's family and because it led to the distasteful result that patients recovering in hospital from a failed suicide attempt were prosecuted , in effect , for their lack of success . But while LAW abrogated the rule of law whereby it was a crime for a person to commit ( or attempt to commit ) suicide , it conferred no right on anyone to do so . Had that been its object there would have been no justification for penalising by a potentially very long term of imprisonment one who aided , abetted , counselled or procured the exercise or attempted exercise by another of that right . The policy of the law remained firmly adverse to suicide , as section CARDINAL(CARDINAL ) makes clear .

The criminal law can not in any event be criticised as objectionably discriminatory because it applies to all . Although in some instances criminal statutes recognise exceptions based on youth , the broad policy of the criminal law is to apply offence - creating provisions to all and to give weight to personal circumstances either at the stage of considering whether or not to prosecute or , in the event of conviction , when penalty is to be considered . The criminal law does not ordinarily distinguish between willing victims and others : ORG and PERSON v. GPE DATE ) CARDINAL EHRR CARDINAL . Provisions criminalising drunkenness or misuse of drugs or theft do not exempt those addicted to alcohol or drugs , or the poor and hungry . ' Mercy killing ' , as it is often called , is in law killing . If the criminal law sought to proscribe the conduct of those who assisted the suicide of the vulnerable , but exonerated those who assisted the suicide of the non - vulnerable , it could not be administered fairly and in a way which would command respect .

For these reasons , which are in all essentials those of ORG , and in agreement with my noble and learned friends Lord PERSON and Lord Hope of PERSON , I would hold that PERSON Pretty can not establish any breach of any Convention right .

The claim against the Director

That conclusion makes it strictly unnecessary to review the main ground on which the Director resisted the claim made against him : that he had no power to grant the undertaking which PERSON sought .

I would for my part question whether , as suggested on his behalf , the Director might not if so advised make a public statement on his prosecuting policy other than in the Code for ORG Prosecutors which he is obliged to issue by LAW DATE . Plainly such a step would call for careful consultation and extreme circumspection , and could be taken only under the superintendence of the Attorney General ( by virtue of section CARDINAL of the DATE Act ) . The Lord Advocate has on occasion made such a statement in GPE , and I am not persuaded that the Director has no such power . It is , however , unnecessary to explore or resolve that question , since whether or not the Director has the power to make such a statement he has no duty to do so , and in any event what was asked of the Director in this case was not a statement of prosecuting policy but a proleptic grant of immunity from prosecution . That , I am quite satisfied , the Director had no power to give . The power to dispense with and suspend laws and the execution of laws without the consent of ORG was denied to the crown and its servants by LAW CARDINAL . Even if , contrary to my opinion , the Director had power to give the undertaking sought , he would have been very wrong to do so in this case . If he had no reason for doubting , equally he had no means of investigating , the assertions made on behalf of PERSON . He received no information at all concerning the means proposed for ending PERSON life . No medical supervision was proposed . The obvious risk existed that her condition might worsen to the point where she could herself do nothing to bring about her death . It would have been a gross dereliction of the Director 's duty and a gross abuse of his power had he ventured to undertake that a crime yet to be committed would not lead to prosecution . The claim against him must fail on this ground alone .

I would dismiss this appeal . ”

The other judges concurred with his conclusions . Lord PERSON stated as regarded LAW :

“ CARDINAL . ... Respect for a person 's ' private life ' , which is the only part of Article CARDINAL which is in play here , relates to the way a person lives . The way she chooses to pass the closing moments of her life is part of the act of living , and she has a right to ask that this too must be respected . In that respect PERSON has the right of self - determination . In that sense , her private life is engaged even where in the face of terminal illness she seeks to choose death rather than life . But it is an entirely different thing to imply into these words a positive obligation to give effect to her wish to end her own life by means of an assisted suicide . I think that to do so would be to stretch the meaning of the words too far . ”

Suicide ceased to be a crime in GPE and GPE by virtue of LAW . However , section CARDINAL(CARDINAL ) of the LAW provides :

“ A person who aids , abets , counsels or procures the suicide of another , or an attempt by another to commit suicide , shall be liable on conviction on indictment to imprisonment for a term not exceeding DATE . ”

Section CARDINAL ) provides :

“ No proceedings shall be instituted for an offence under this section except by or with the consent of ORG . ”

Case - law has established that an individual may refuse to accept life - prolonging or life - preserving treatment :

“ First it is established that the principle of self - determination requires that respect must be given to the wishes of the patient , so that if an adult patient of sound mind refuses , however unreasonably , to consent to treatment or care by which his life would or might be prolonged , the doctors responsible for his care must give effect to his wishes , even though they do not consider it to be in his best interests to do so ... To this extent , the principle of the sanctity of human life must yield to the principle of self - determination ... ” ( Lord PERSON in ORG v. Bland [ DATE ] AC CARDINAL , at p. CARDINAL )

This principle has been most recently affirmed in PERSON an ORG , ORG judgment of DATE . It has also been recognised that “ dual effect ” treatment can be lawfully administered , that is treatment calculated to ease a patient 's pain and suffering which might also , as a side - effect , shorten their life expectancy ( see , for example , Re J [ DATE ] Fam CARDINAL ) .

In DATE ORG issued its fourteenth report , “ Offences against the Person ” ( Cmnd CARDINAL ) , in which it reviewed , inter alia , the law relating to the various forms of homicide and the applicable penalties . In Section F , the situation known as mercy killing was discussed . The previous suggestion of a new offence applying to a person who from compassion unlawfully killed another person permanently subject , for example , to great bodily pain and suffering and for which a DATE maximum sentence was applicable , was unanimously withdrawn . It was noted that the vast majority of the persons and bodies consulted were against the proposal on principle and on pragmatic grounds . Reference was made also to the difficulties of definition and the possibility that the “ suggestion would not prevent suffering but would cause suffering , since the weak and handicapped would receive less effective protection from the law than the fit and well ” .

It did however recommend that the penalty for assisting suicide be reduced to DATE , as being sufficiently substantial to protect helpless persons open to persuasion by the unscrupulous .

On DATE the report of ORG ( ORG ) was published following its inquiry into the ethical , legal and clinical implications of a person 's right to withhold consent to life - prolonging treatment , the position of persons unable to give or withhold consent and whether and in what circumstances the shortening of another person 's life might be justified on the grounds that it accorded with that person 's wishes or best interests . ORG had heard oral evidence from a variety of government , medical , legal and non - governmental sources and received written submissions from numerous interested parties who addressed the ethical , philosophical , religious , moral , clinical , legal and public - policy aspects .

It concluded , as regards voluntary euthanasia :

“ CARDINAL . The right to refuse medical treatment is far removed from the right to request assistance in dying . We spent a long time considering the very strongly held and sincerely expressed views of those witnesses who advocated voluntary euthanasia . Many of us have had experience of relatives or friends whose dying DATE or DATE were less than peaceful or uplifting , or whose final stages of life were so disfigured that the loved one seemed already lost to us , or who were simply weary of life ... Our thinking must also be coloured by the wish of every individual for a peaceful and easy death , without prolonged suffering , and by a reluctance to contemplate the possibility of severe dementia or dependence . We gave much thought too to Professor PERSON 's opinion that , for those without religious belief , the individual is best able to decide what manner of death is fitting to the life that has been lived .

Ultimately , however , we do not believe that these arguments are sufficient reason to weaken society 's prohibition of intentional killing . That prohibition is the cornerstone of law and of social relationships . It protects each one of us impartially , embodying the belief that all are equal . We do not wish that protection to be diminished and we therefore recommend that there should be no change in the law to permit euthanasia . We acknowledge that there are individual cases in which euthanasia may be seen by some to be appropriate . But individual cases can not reasonably establish the foundation of a policy which would have such serious and widespread repercussions . Moreover , dying is not only a personal or individual affair . The death of a person affects the lives of others , often in ways and to an extent which can not be foreseen . We believe that the issue of euthanasia is CARDINAL in which the interest of the individual can not be separated from the interest of society as a whole .

CARDINAL reason for this conclusion is that we do not think it possible to set secure limits on voluntary euthanasia ...

We are also concerned that vulnerable people – the elderly , sick or distressed – would feel pressure , whether real or imagined , to request early death . We accept that , for the most part , requests resulting from such pressure or from remediable depressive illness would be identified as such by doctors and managed appropriately . Nevertheless we believe that the message which society sends to vulnerable and disadvantaged people should not , however obliquely , encourage them to seek death , but should assure them of our care and support in life ... ”

In light of the above , ORG also recommended no change to the legislation concerning assisted suicide ( paragraph CARDINAL ) .

NORP Recommendation CARDINAL ( DATE ) of ORG of ORG recommended , inter alia , as follows ( paragraph CARDINAL ) :

“ ... that ORG encourage the member ORG to respect and protect the dignity of terminally ill or dying persons in all respects :

c. by upholding the prohibition against intentionally taking the life of terminally ill or dying persons , while :

i. recognising that the right to life , especially with regard to a terminally ill or dying person , is guaranteed by the member GPE , in accordance with LAW which states that ' no one shall be deprived of his life intentionally ' ;

ii . recognising that a terminally ill or dying person 's wish to die never constitutes any legal claim to die at the hand of another person ;

iii . recognising that a terminally ill or dying person 's wish to die can not of itself constitute a legal justification to carry out actions intended to bring about death . ”

The Voluntary Euthanasia Society , established in DATE and being a leading research organisation in GPE on issues related to assisted dying , submitted that as a general proposition individuals should have the opportunity to die with dignity and that an inflexible legal regime that had the effect of forcing an individual , who was suffering unbearably from a terminal illness , to die a painful protracted death with indignity , contrary to his or her express wishes , was in breach of LAW . They referred to the reasons why persons requested assisted deaths ( for example unrelieved and severe pain , weariness of the dying process , loss of autonomy ) . Palliative care could not meet the needs of all patients and did not address concerns of loss of autonomy and loss of control of bodily functions .

They submitted that in comparison with other countries in LOC the regime in GPE and GPE , which prohibited assisted dying in absolute terms , was the most restrictive and inflexible in LOC . Only GPE compared . Other countries ( for example GPE , GPE , GPE , GPE , GPE , GPE and the GPE , where assistance must be sought from a medical practitioner ) had abolished the specific offence of assisting suicide . In other countries , the penalties for such offences had been downgraded – in no country , save GPE , did the maximum penalty exceed DATE imprisonment – and criminal proceedings were rarely brought .

As regarded public - policy issues , they submitted that whatever the legal position , voluntary euthanasia and assisted dying took place . It was well known in GPE and GPE that patients asked for assistance to die and that members of the medical profession and relatives provided that assistance , notwithstanding that it might be against the criminal law and in the absence of any regulation . As recognised by the GPE government , therefore , the criminal law did not prevent voluntary euthanasia or assisted dying . The situation in the GPE indicated that in the absence of regulation slightly less than PERCENT of deaths were due to doctors having ended the life of a patient without the latter explicitly requesting this ( non - voluntary euthanasia ) . Similar studies indicated a figure of PERCENT in GPE and PERCENT in GPE . It might therefore be the case that less attention was given to the requirements of a careful end - of - life practice in a society with a restrictive legal approach than in CARDINAL with an open approach that tolerated and regulated euthanasia . The data did not support the assertion that , in institutionalising voluntary euthanasia / physician - assisted suicide , society put the vulnerable at risk . At least with a regulated system , there was the possibility of far greater consultation and a reporting mechanism to prevent abuse , along with other safeguards , such as waiting periods .

NORP This organisation put forward principles and arguments which it stated were consonant with those expressed by other NORP bishops ' conferences in other member GPE .

They emphasised that it was a fundamental tenet of the NORP faith that human life was a gift from God received in trust . Actions with the purpose of killing oneself or another , even with consent , reflected a damaging misunderstanding of the human worth . Suicide and euthanasia were therefore outside the range of morally acceptable options in dealing with human suffering and dying . These fundamental truths were also recognised by other faiths and by modern pluralist and secular societies , as shown by LAW ( DATE ) and the provisions of ORG , in particular in LAW and QUANTITY thereof .

They pointed out that those who attempted suicide often suffered from depression or other psychiatric illness . The DATE report of ORG on Life and PERSON concluded on that basis that the legalising of any form of assisted suicide or any form of euthanasia would be a mistake of historic proportions , with catastrophic consequences for the vulnerable and an intolerable corruption of the medical profession . Other research indicated that many people who requested physician - assisted suicide withdrew that request if their depression and pain were treated . In their experience , palliative care could in virtually every case succeed in substantially relieving a patient of physical and psychosomatic suffering .

ORG ( DATE ) had solid reasons for concluding , after consideration of the evidence ( on a scale vastly exceeding that available in these proceedings ) , that any legal permission for assistance in suicide would result in massive erosion of the rights of the vulnerable , flowing from the pressure of legal principle and consistency and the psychological and financial conditions of medical practice and health - care provision in general . There was compelling evidence to suggest that once a limited form of euthanasia was permitted under the law it was virtually impossible to confine its practice within the necessary limits to protect the vulnerable ( see , for example , the GPE government 's study of deaths in DATE , recording cases of euthanasia without the patients ' explicit request ) .


Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE .

The case concerns CARDINAL set of proceedings resulting from the dismissal of the applicant from his office in DATE , subsequent transfer to other posts and , ultimately , the termination of his employment in DATE . During the proceedings the applicant urged different authorities to accelerate the proceedings , including ORG of the ORG , ORG and ORG .

On DATE the applicant ’s employer A dismissed the applicant from a job position of a technical director and on DATE transferred him to a new post .

On DATE the applicant instituted proceedings against A in ORG ( ORG in socialno sodišče v PERSON ) seeking , inter alia , the annulment of the above mentioned decisions .

Of the CARDINAL hearings held DATE and DATE , none was adjourned at the request of the applicant .

On DATE the applicant requested the exclusion of a judge from the proceedings , which was rejected on DATE .

At the last hearing , the court decided to deliver a written judgment . The judgment , rejecting the applicant ’s claim , was served on the applicant on DATE .

On DATE the applicant appealed to ORG ( GPE delovno in socialno sodišče ) . On DATE he made a request to speed up the proceedings .

On DATE the court allowed the applicant ’s appeal and remitted the case to the first - instance court for re - examination .

In the meanwhile , on DATE , the applicant lodged a constitutional appeal with ORG ( PERSON ) , which was rejected on DATE as premature .

In the re - examination proceedings , of the QUANTITY hearings held DATE and DATE , CARDINAL was adjourned due to the applicant ’s modification of the claim .

At the last hearing , the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant on DATE .

On DATE the applicant appealed to ORG .

On DATE the court in part upheld the first - instance court judgment and in part remitted the case to the first - instance court for re - examination .

ORG judgment was served on the applicant on DATE .

On DATE the applicant lodged an appeal on points of law with ORG sodišče ) against the part of ORG judgment upholding the first - instance court judgment .

The proceedings are pending in part before ORG and in part on the first instance .

On DATE the applicant was again transferred to a new post .

On DATE the applicant instituted proceedings against A in ORG seeking annulment of the above decision on transfer and payment of the loss in his salary .

On DATE the court held a hearing .

After the hearing , the court delivered a judgment , in which it excluded from the proceedings the part of the claim concerning the difference in the salary , which was joined with the third set of the proceedings , and rejected the remainder of the applicant ’s claim .

On DATE the applicant appealed to ORG .

On DATE the court dismissed the applicant ’s appeal .

The judgment was served on the applicant on DATE .

On DATE the applicant lodged an appeal on points of law with ORG .

The third set of proceedings

Ultimately , on DATE , A dismissed the applicant from work and on CARDINAL DATE terminated his employment .

On DATE the applicant instituted civil proceedings in ORG seeking the annulment of that decision and recognition of continuation of his employment .

Of the CARDINAL hearings held on DATE and DATE , neither was adjourned at the request of the applicant .

At the last hearing , the court delivered a judgment , rejecting the applicant ’s claim .

On DATE the applicant appealed to ORG .

On CARDINAL DATE the applicant lodged an appeal on points of law with ORG .