This is an immensely sad day for human rights in Europe – perhaps the saddest day in the entire history of the European Human Rights Convention (ECHR) and of the Court that originally was created to guarantee its application, but which in fact turns out to undermine rather than protect the rights entrusted to it.
In today’s decision in the case of Lambert and others v. France, a Grand Chamber of the European Court of Human Rights has found that the withholding of food and water from a helpless patient with the deliberate purpose of killing him constitutes neither a violation of the right to life in the sense of Article 2 of the ECHR, nor an inhuman and degrading treatment in the sense of Article 3. In other words, starving a helpless person to death is, according to the Court, no violation of the Convention.
The Court bases its decision, which effectively cancels out the right to life of precisely those most in need of it, i.e. the helpless and vulnerable, on a presumed “right to self-determination” of the victim. But in actual fact Mr. Lambert had, prior to the car accident that left him in a vegetative state, never given any directive according which he wanted to be killed in such a case. What the Court deems to be “self-determination” was based on statements that were ascribed to Mr. Lambert, but for which no evidence was ever provided. In reality this decision is the resolution of a conflict between his wife (who wanted him to die) and the rest of his family (who wanted him to live) – and it is not clear at all for which reason the former has prevailed over the latter.
Expressions like “euthanasia” (= “good death”) or “mercy killing” seem absurd if one considers what Mr. Lambert’s end is going to be like. His artificial feeding and supply with water will be cut off, i.e. he will slowly be starved to death. This may take several days, if not weeks. (According to the Dissenting Opinion issued by five of the 17 judges, he already once has survived 31 days without food, when following a Court decision his artificial food supply was turned off. It was later recommenced, following another Court decision).
To put this into a context, it should be noted that some weeks ago the US State of Oklahoma suspended the death penalty following a botched execution that caused the delinquent, a convicted murderer, to struggle for 43 minutes before expiring from an apparent heart attack after being injected with a lethal three-drug protocol. The death penalty as such was not called into question, but a lethal injection that causes the delinquent to suffer 43 minutes rather than providing him with a quick and painless death was considered inhumane and degrading. But while in the US 43 minutes of pain and anguish are considered unacceptably cruel even for a convicted murderer, the ECtHR apparently finds it perfectly acceptable for the helpless victim of a car accident to be starved to death…
This newest “landmark decision” of the ECtHR is simply abominable – even ten thousand good and reasonable decisions would not suffice to even out such this glaring misjudgement that undermines the most quintessential of human rights, i.e. the right to life. But this is not one misguided among ten thousand good decisions – it is just the latest, and maybe the worst, of a long series of serious errors committed by a Court that increasingly looks like a monumental showpiece of moral and intellectual disorientation, dressed up in pompous gowns. Just some weeks ago, one chamber of the same Court had issued a judgment that appears to de facto create a right to fabricate a child in vitro and then sell and buy it for money. Following protest, this decision has been cancelled, and the case will be heard for a second time – hopefully with a more acceptable outcome. But for today’s judgment no such solution is possible: it was itself issued by a Grand Chamber, and there is no review procedure to challenge it.
To fully understand the significance of today’s decision, it suffices to read the following passages from the dissenting opinion issued by five judges:
Après mûre réflexion, nous pensons que, à présent que tout a été dit et écrit dans cet arrêt, à présent que les distinctions juridiques les plus subtiles ont été établies et que les cheveux les plus fins ont été coupés en quatre, ce qui est proposé revient ni plus ni moins à dire qu’une personne lourdement handicapée, qui est dans l’incapacité de communiquer ses souhaits quant à son état actuel, peut, sur la base de plusieurs affirmations contestables, être privée de deux composants essentiels au maintien de la vie, à savoir la nourriture et l’eau, et que de plus la Convention est inopérante face à cette réalité.
Nous posons donc la question : qu’est-ce qui peut justifier qu’un État autorise un médecin (…), en l’occurrence non pas à « débrancher » Vincent Lambert (celui-ci n’est pas branché à une machine qui le maintiendrait artificiellement en vie) mais plutôt à cesser ou à s’abstenir de le nourrir et de l’hydrater, de manière à, en fait, l’affamer jusqu’à la mort ? Quelle est la raison impérieuse, dans les circonstances de l’espèce, qui empêche l’État d’intervenir pour protéger la vie ? Des considérations financières ? Aucune n’a été avancée en l’espèce. La douleur ressentie par Vincent Lambert ? Rien ne prouve qu’il souffre. Ou est-ce parce qu’il n’a plus d’utilité ou d’importance pour la société, et qu’en réalité il n’est plus une personne mais seulement une « vie biologique » ?
Indeed, today’s judgment is truly heinous, and heinous are the persons who have made it. Following such a judgment, this Court can never again pretend to speak in the name of human rights, or to exercise the role of a “Conscience of Europe” that its President Dean Spielmann has pompously claimed for it.
Let us face it: this Court is not only, as we wrote, “in a crisis” – but it is an institutionalized failure. It not only fails to guarantee and protect the rights that are enshrined in the ECHR, but it undermines and jeopardizes them. Indeed, this Court currently is one of the biggest human rights threats in Europe and worldwide, possibly more dangerous than the Taliban, the Islamic State, or Vladimir Putin.
Europe neither needs nor deserves such an institution. It should get rid of it – the sooner, the better.
A more detailed analysis of this (in the most negative of senses) “landmark decision” will be posted in the course of the following days.