Subject matter: Medically assisted death Keywords: Fundamental Rights; Civil and political rights; Right to dignity Fundamental Rights; Civil and political rights; Right to life; Medically assisted death; Intolerable suffering; Scientific consensus. |
RULING No. 123/2021
Case no. 173/2021
Plenary
Rapporteur: Justice Pedro Machete
(Justice Maria José Rangel de Mesquita)
..
Sitting in Plenary, the Constitutional Court hereby rules as follows:
I. Report
1. The President of the Republic, under Article 278(1) of the Constitution of the Portuguese Republic and Articles 51(1) and 57(1) of Law No. 28/82 of 15 November (Law on the Organisation, Functioning and Procedure of the Constitutional Court, hereinafter referred to by its Portuguese abbreviation LTC), hereby requests that the Constitutional Court conduct a preventive review of the constitutionality of several norms contained in Decree No. 109/XIV of the Assembly of the Republic, published in the Official Gazette of the Assembly of the Republic, Series II-A number 76, of 12 February 2021, regulating the special conditions under which hastened medically assisted death is not punishable and amending the Criminal Code, received and registered by the Presidency of the Republic on 18 February 2021, to be enacted as law.
The norms in question are specified in the initial part of the request, as follows:
the norm contained in Article 2(1), insofar as it defines non-punishable hastened medically assisted death as hastened death upon the personal decision of a person of legal age in a state of intolerable suffering,
the norm contained in Article 2(1), insofar as it includes in the concept of non-punishable hastened medically assisted death the criterion extremely severe and permanent injury according to scientific consensus;
Consequently, the norms contained in Articles 4, 5 and 7, to the extent that they leave it to the advising doctor, the medical specialist and the Verification and Assessment Committee to decide whether the conditions set out in Article 2 are met;
Consequently, the norms contained in Article 27, insofar as they amend Articles 134(3), 135(3) and 139(2) of the Criminal Code.
Following the presentation of grounds supporting the request for a preventive review of constitutionality, the requester concludes:
In light of the above, it is hereby requested, in accordance with Article 278(1) of the Constitution, as well as Article 51(1) and Article 57(1) of Law No. 28/82 of 15 November, that there be a preventive review of the constitutionality of the norms set out in Article 2 and, consequently, Articles 4, 5, 7 and 27, as contained in Decree No. 109/XIV of the Assembly of the Republic, on the grounds that they violate the principles of legality and the vagueness doctrine, enshrined in Article 29(1) and the provisions of Article 112(5), regarding the extent of the freedom to limit the right to life, interpreted in accordance with the principle of human dignity, as resulting from the combination of Article 18(2) with Articles 1 and 24(1), respectively, of the Constitution of the Portuguese Republic.
2. Decree No. 109/XIV of the Assembly of the Republic which, according to its title, Regulates the conditions under which medically assisted death is not punishable and amends the Criminal Code has the following wording:
Article 2
Non-punishable hastened medically assisted death
1- For the purposes of this law, non-punishable hastened medically assisted death is such when it is the personal decision and current, reiterated, sincere, free and informed will of a person of legal age in a state of intolerable suffering, with an extremely severe and permanent injury according to scientific consensus or an incurable and fatal illness, when performed or assisted by health professionals.
2- For the purposes of this law, requests for hastened death shall only be considered legitimate if submitted by Portuguese nationals or those legally resident in Portuguese territory.
3- The request underlying the decision provided for in paragraph 1 shall follow a clinical and legal procedure, in accordance with the provisions of this law.
4- The request may be freely revoked at any time, in accordance with Article 11.
Article 4
Advising doctors opinion
1- The advising doctor shall issue a reasoned opinion as to whether the patient meets all the requirements referred to in Article 2 and shall provide the patient with all the information and clarification concerning the clinical situation affecting them, the applicable, feasible and available treatments, namely in the area of palliative care, and the respective prognosis, after which they shall verify whether the patient maintains and reiterates their will, and the patients decision shall be recorded in writing, dated and signed.
2- The information and opinion provided by the doctor and the declaration of the patient, signed by both, shall be included in the Special Health Record (SHR).
3- If the advising doctors opinion is not in support of hastening the patients death, the procedure under way shall be cancelled and terminated and the patient shall be informed of that decision and the reasons by the advising doctor, although the procedure may recommence with a new request, in accordance with Article 3.
Article 5
Confirmation by a medical specialist
1- Following a favourable opinion from the advising doctor, the latter shall consult another physician, a specialist in the pathology affecting the patient, whose opinion shall confirm or otherwise that the conditions are met with respect to the previous article, the diagnosis and prognosis of the clinical situation and the incurable nature of the illness or the permanent nature of the injury.
2- The medical specialists reasoned opinion shall be given in writing, dated and signed, and shall form part of the SHR.
3- If the medical specialist's opinion is not in support of hastening the patients death, the procedure under way shall be cancelled and terminated and the patient shall be informed of that decision and the reasons by the advising doctor, although the procedure may recommence with a new request, in accordance with Article 3.
4- If the medical specialist offers a favourable opinion, the advising doctor shall inform the patient of the details of the opinion, after which they shall again verify that the patient maintains and reiterates their will, and the patients decision shall be recorded in writing, dated and signed by the patient or a person designated by them under Article 10(2), and, together with the alternative opinion or opinions issued by the medical specialist(s), shall form part of the SHR.
5- If the patient suffers from more than one permanent injury or incurable and fatal illness, the advising doctor shall decide on which medical specialist to consult.
Article 7
Verification and Assessment Committee Opinion
1- In cases where favourable opinions are presented in accordance with the previous articles, once the patients will is reconfirmed, the advising doctor shall send a copy of the SHR to the Verification and
Assessment Committee for Clinical Procedures to Hasten Death (CVA by its Portuguese abbreviation), as provided for in Article 23, requesting an opinion on the fulfilment of the requirements and the compliance of the previous phases of the procedure, which shall be issued within a maximum of 5 business days.
2- When the CVA has doubts as to whether the conditions provided in the present law for the practice of medically assisted death have been met, it shall summon the physicians involved in the procedure to make statements and may also request the submission of any additional documents it deems necessary.
3- If the CVA issues an unfavourable opinion, the procedure under way shall be cancelled, although it may be reopened with a new request in accordance with Article 3.
4- If the CVA issues a favourable opinion, the advising doctor shall inform the patient of the details of the opinion, after which they shall again verify whether the patient maintains and reiterates their will, and their conscious and express decision shall be recorded in a written document, dated and signed by them or a person designated by them in accordance with Article 10(2), which shall be included in the SHR.
Article 27
Amendment to the Criminal Code
Articles 134, 135 and 139 of the Criminal Code are amended to read as follows:
Article 134 [...]
1- [ ]
2- [ ]
3- The conduct is not punishable when carried out in compliance with the conditions established in Law No. xxxx.
Article 135 [ ]
1- [ ]
2- [ ]
3- The conduct is not punishable when carried out in compliance with the conditions established in Law No. xxxx.
Article 139 1- (Current body of the Article).
2- A doctor or nurse who, while neither inciting nor promoting, merely provides information, at the express request of another person, on physician-assisted suicide in accordance with Article 135(3) shall not be punished.
3. The grounds put forward in the request to support the unconstitutionality of the contested articles are as follows:
1.
By Decree No. 109/XIV, the Assembly of the Republic approved the regime regulating the special conditions under which hastened medically assisted death is not punishable and amending the Criminal Code. 2.
According to the explanatory memorandum accompanying one of the bills (presented by the Socialist Party or PS), which gave rise to the Decree under consideration, the legislator intended, through this Decree, to exercise their legislative discretion in an extremely sensitive matter, in relation to which, as stated in the same explanatory memorandum, the Constitution does not provide a definitive guideline. This means that, under the Constitution, it is up to the legislator to permit or prohibit euthanasia according to the social consensus at any given time.
3.
In any case, this request to the Constitutional Court is not about the question of whether euthanasia, as a concept, is or is not in conformity with the Constitution, but rather about whether the specific regulation of medically assisted death implemented by the legislator in this Decree is in conformity with the Constitution in a matter that lies at the core of citizens rights, freedoms and guarantees, as it involves the right to life and the freedom to limit it, within a framework of human dignity.
4.
This same difficulty is, moreover, recognised by the legislator, in the aforementioned explanatory memorandum, insofar as it states that for the intervention, upon request, of health professionals to be decriminalised without the risk of unconstitutionality on the grounds of violation of the principle of human dignity, the law must be strict, even if it inevitably resorts to indeterminate concepts, provided that they are determinable.
5.
Non-punishable hastened medically assisted death is such when it is the personal decision and current, reiterated, sincere, free and informed will of a person of legal age in i) a state of intolerable suffering, ii) with an extremely severe and permanent injury according to scientific consensus or an incurable and fatal illness, iii) when performed or assisted by health professionals.
6.
The first criterion established is that of intolerable suffering. However, this concept is not defined in any way, nor does it seem to result unequivocally from the medical lege artis. Indeed, when referring to the concept of suffering, it appears to inculcate a high degree of subjectivity. Since these concepts must, in accordance with the Decree and as shall be further explained below, essentially be decided on by the advising doctor and the medical specialist, it is unclear how this suffering should be measured: whether from the exclusive perspective of the patient or from the physician's assessment of it. In any case, a concept with this degree of indeterminacy does not seem to meet the Constitutions requirements of regulatory specificity in the matter under consideration.
7.
The same applies to the second criterion, in particular the sub-criterion of extremely severe and permanent injury according to scientific consensus.
8.
This sub-criterion points to a solution that is not in line with the legislators objectives, insofar as it allows an interpretation according to which a mere extremely severe and permanent injury could lead to the possibility of medically assisted death. This sub-criterion must be combined with the first, of course, and in addition to the extremely severe and permanent injury there must be intolerable suffering. But taking into account the above the rather indefinite nature of the concept of intolerable suffering and the total lack of specificity on what constitutes an extremely severe and permanent injury or scientific consensus, it does not appear that the legislator provides the physician involved in the procedure with a minimally certain legislative framework that can guide their actions. Moreover, as the only criterion associated with the injury is its permanent nature, and as there is no mention of it being fatal, it is difficult to see how there could be any question of hastening death, since this may not occur as a result of the injury, as the Portuguese National Council of Ethics for the Life Sciences points out in its opinion.
9.
This insufficient regulatory specificity seems at odds with the constitutional requirement regarding the right to life and human dignity, and with legal certainty. However, as the High Council of the Public Prosecution Service (Conselho Superior do Ministério Público) rightly points out in its opinion, there is another aspect in which this lack of specificity is particularly problematic.
10.
Indeed, the clarification of these concepts largely rests on the decision made by the advising doctor and the medical specialist. It follows from the provisions of Article 4 that the advising doctor should issue an opinion as to whether the patient meets all the requirements of Article 2, which shall be confirmed by means of a specialist opinion, as provided in Article 5, which confirms whether the aforementioned conditions are met, as well as the diagnosis and prognosis as regards the clinical situation and the incurable nature of the illness or the permanent nature of the injury.
11.
In addition to a certain redundancy exhibited by this norm referring to the criteria already set out and then listing them in a different order, which does not contribute towards clarity and legal certainty it is once again apparent that it is for the clinicians, within the scope of the procedure, to decide whether the prerequisites for permitting hastened medically assisted death are met, this then being verified and confirmed by the Verification and Assessment Committee.
12.
As is well known, the Constitution prohibits the legislator from assigning the application of law to acts of a nature other than legislative, as per Article 112(5). In fact, by using highly indeterminate concepts, moreover in matters of rights, freedoms and guarantees, leaving their definition almost entirely to the opinions of advising doctors and medical specialists, the legislator appears to violate this prohibition of delegation, as contained in Article 112 of the Constitution.
13.
It cannot be said, on the other hand, that insufficient regulatory specificity can be corrected by regulating the law. Under Article 30 of the Decree, the Government approves such regulation within a maximum period of 90 days. However, as this Decree is the only legislative instrument that can be considered at this point in time, and as it suffers from the shortcomings pointed out, its unconstitutionality cannot be remedied by awaiting a future regime whose content is unknown, even if the legislator makes the entry into force of the present regime dependent on it. It is on this regime, and this alone, that the judgement of constitutional conformity must fall.
14.
In truth, as stated above, by not providing doctors with any firm criteria for interpreting these concepts, leaving them, in essence, excessively indeterminate, the legislator has created a situation of legal uncertainty, which should be avoided at all costs in such a sensitive matter. This uncertainty affects all those involved: petitioners, health professionals, and citizens in general, who are thus deprived of a clear and certain regime on such a complex and controversial issue.
4. The request was lodged with this Court on 18 February 2021 and was admitted on the same date.
5. Notified for the purpose provided for in Article 54 of the LTC, the President of the Assembly of the Republic submitted a reply stating the merits of the case. Annexed to the reply was a note on the preparatory work for Decree No. 109/XIV, prepared by the support services for the Committee on Constitutional Affairs, Rights, Freedoms and Guarantees, which indicated that the preparatory work was available on Parliament's website.
6. Now that the memorandum referred to in Article 58(2) of the LTC has been drawn up and the Courts guideline has been established, the decision must be given in accordance with Article 59 of said Law.
II. Grounds
A) Delineation of the object of the constitutionality review requested by the requester
7. The specific jurisdiction of the Constitutional Court concerns the assessment of unconstitutionality and in certain cases also of illegality in accordance with Articles 277 et seq. of the Constitution (cf. the respective Articles 221 and 223(1)). With particular regard to unconstitutionality by action, it is a question of assessing the compatibility of legal norms drawn from infra-constitutional sources with the constitutional parameter: norms that contravene the provisions of the Constitution or the principles enshrined therein are unconstitutional (see Article 277(1)). This concept of functionally relevant norms, as well as reappearing in relation to providing for different ways of reviewing constitutionality and in this case Article 278(1) of the Constitution should be highlighted , is set out in Article 51(5) of the LTC, as a common provision for abstract, preventive or successive review proceedings:
The Court can only declare the unconstitutionality or the illegality of rules that are the object of the request for examination, but they may do this on the grounds of violation of constitutional rules or principles different from those in which violation was claimed. (cf. the corresponding provision, in relation to specific reviews, in Article 79-C of the LTC).
These considerations are prompted by the fact that the request under examination identifies the norms which the Court is asked to assess in terms that are not unequivocal.
Although the precept of Decree No. 109/XIV mentioned in the initial and concluding parts of the request as the formal source of the object to be assessed primarily the unconstitutionalities attributed to the norms contained in the other precepts referred to in the request being merely consequential is the same (or almost the same) Article 2(1) and Article 2, respectively , the norms identified for the purposes of that primary assessment either appear to be a segment of the norm contained in the precept the norm contained in Article 2(1), insofar as or refer more broadly to the norms contained in the precept the norms set out in Article 2. Moreover, even if reference to the latter Article without specifying only its paragraph 1 is due to a mere oversight, the reference in the grounds for the request only to certain parts of the norm contained in that Article is not in itself sufficiently clear or precise, since in that part of the request all that needs to be done is to state the reasons why a breach of the constitutional parameters specifically invoked is thought to exist. And this fundamental defect or defects may result from a particular aspect of the norm, thereby compromising it in its entirety.
It is therefore necessary to clarify exactly which norm or norms are being challenged by the requester, since, under the aforementioned Article 51(5) of the LTC, such a clarification is required in order to define the scope of the Courts investigative powers. But such clarification does not seem any less indispensable for a proper understanding of the issues of constitutionality put to the Court, taking into account the parameters invoked by the requester.
It is therefore necessary to clarify the meaning and scope of the request by reference to the precepts and issues set out in it. For this purpose, it will be important to consider the legal introduction of such precepts into the legislation as a whole, in addition to the matter addressed in them.
8. Decree No. 109/XIV, approved for enactment as law, under the aforementioned title, has the purpose of [regulating] the special conditions under which hastened medically assisted death is not punishable and amending the Criminal Code (Article 1). It is structured in six chapters:
Chapter I: General provisions and criminal framework (Articles 1 and 2);
Chapter II: Procedure (Articles 3 to 16);
Chapter III: Rights and duties of health professionals (Articles 17 to 21);
Chapter IV: Monitoring and evaluation (Articles 22 to 26);
Chapter V: Legislative amendment (Article 27);
Chapter VI: Final and transitional provisions (Articles 28 to 32).
For the purposes of the approved regime, and implementing the first part of the object envisaged in Article 1, it is considered that non-punishable hastened medically assisted death is such when it is the personal decision and current, reiterated, sincere, free and informed will of a person of legal age in a state of intolerable suffering, with an extremely severe and permanent injury according to scientific consensus or an incurable and fatal illness, when performed or assisted by health professionals. (Article 2(1); italics added).
It should be borne in mind, with a view to contextualising the norms at issue in the request, that the regime instituted by Decree No. 109/XIV establishes, in Article 1, the following:
i)The notion of non-punishable hastened medically assisted death (Article 2(1));
ii) The definition of the universe of people who may submit requests to hasten their death (Article 2(2)): requests for hastened death shall only be considered legitimate if submitted by Portuguese nationals or those legally resident in Portuguese territory.; iii) The clinical and legal procedure that must be followed with respect to the request underlying the decision made by the person envisaged in Article 2(1) (Article 2(3), which is then governed in Chapter II); such procedure includes, in particular:
Rules concerning the request for hastened medically assisted death, which initiates the procedure for hastening death, namely Articles 3(1) and (4), 6(5), 7(4), 8(2), (3) and (5), 9(2) to (5), 10 (personal and non-delegable decision) and 11 (revocation of the request);
Rules concerning the issuing of opinions by the advising doctor as part of the procedure and, subsequently, by the medical specialist (and, possibly, the psychiatric specialist) and, finally, by the Verification and Assessment Committee for Clinical Procedures to Hasten Death (CVA; Articles 3 to 7); and, finally, after a favourable opinion from said Committee (Article 8(1));
Rules regarding the implementation of the patients decision, that is, the procedure to hasten death (whose request was authorised following successive favourable opinions, numbering three or four in total, depending on the case), through the administration or self-administration of lethal drugs, always in the presence of (at least) the advising doctor and another health professional, which takes place, in principle, in an authorised location (Portuguese National Health Service or private and social sector healthcare facilities that are duly licensed and authorised and that meet the conditions provided for in the Decree Articles 8, 9 and 12);
iv) The rules on the duties of health professionals (Articles 17 to 21), in particular professional secrecy and confidentiality of information (Article 19), conscientious objection (Article 20) and disciplinary liability (Article 21);
v) Monitoring and evaluation rules (Articles 22 to 26);
vi) The amendment to Articles 134 (Homicide at the victims request), 135 (Incitement or assistance to suicide) and 139 (Promotion of suicide) of the Criminal Code, introducing additional paragraphs to those articles enshrining the non-punishability of the conduct of those involved in hastened medically assisted death under the conditions established by the legislation or providing information, at the express request of another person, on physician-assisted suicide (Article 27, which introduces new 3rd paragraphs to Articles 134 and 135 and a new 2nd paragraph to Article 139, all of the Criminal Code). vii) Final and transitional provisions on: life insurance (Article 28), the Directorate-General of Healths website (Article 29), regulation (Article 30), transitional provision (Article 31) and entry into force 30 days after publication of the regulation approved by the Government (Article 32).
9. The two norms indicated in the initial part of the request as being the primary object thus relate to the precept which establishes what, for the purposes of the politico-legislative decision taken by the legislator in Decree No. 109/XIV, is considered to be non-punishable hastened medically assisted death (Article 2(1)).
The first norms indicated by the requester as consequential referring to Articles 4, 5 and 7 of the Decree concern the clinical and legal procedure triggered by the expression of the decision by the person in this legislation referred to as the patient (cf. Article 3(1)) to hasten their death in accordance with the law and which leads to the implementation of such a decision, inasmuch as, as the requester states in relation to the precepts in question, they leave it to the advising doctor, the medical specialist and the Verification and Assessment Committee to decide whether the conditions set out in Article 2 are met. It is recalled that, as stated in paragraph 3 of this Article, the request underlying the decision provided for in paragraph 1 shall follow a clinical and legal procedure, in accordance with the provisions of this law. In the precepts under consideration here, it is provided that: i) the advising doctor, in addition to providing all the information and clarification on the clinical situation in question, shall issue a reasoned opinion as to whether the patient meets all the requirements referred to in Article 2 (Article 4(1)); ii) the medical specialist, consulted by the advising doctor, issues an opinion confirming or otherwise that the conditions are met with respect to the previous article, the diagnosis and prognosis of the clinical situation and the incurable nature of the illness or the permanent nature of the injury (Article 5(1); italics added); and iii) the CVA issues an opinion on the fulfilment of the requirements and the compliance of the previous phases of the procedure (Article 7(1)). This means that the conditions or requirements envisaged by the legislator in Article 2 and which those three entities must confirm also amount to commands and restrictions on their actions.
Finally, the last norms mentioned by the requester, also as consequential, namely those contained in Article 27, insofar as they amend Articles 134, 135 and 139 of the Criminal Code, refer in fact, nor could it be otherwise, since that precept does not provide for anything other than changes to the wording of those articles to the aforementioned addition of a paragraph to Articles 134, 135 and 139 of that law, precluding the punishability of conduct when carried out in compliance with the conditions established in the regime approved by Decree No. 109/XIV.
It is with reference to this framing of the norms under scrutiny within the set of norms addressed in Decree No. 109/XIV that it is necessary to proceed, by clarifying the scope of this Courts intervention, with an explanation of the norms object of the request and of the issues of constitutionality raised.
10. The request for preventive review submitted by the requester, as set out above, may be considered to be doubly delineated from the start in a positive and negative sense.
On the one hand, the requester sets out the main contested norms i.e., the norms contained in Article 2(1) merely by identifying two of their (literal) segments whose constitutional conformity they wish to be assessed: i) insofar as it defines non-punishable hastened medically assisted death as hastened death upon the personal decision of a person of legal age in a state of intolerable suffering; ii) insofar as it includes in the concept of non-punishable hastened medically assisted death the criterion of extremely severe and permanent injury according to scientific consensus. On the other hand, the requester expressly states that they intend to exclude from the object of the request for preventive review the question of whether euthanasia, as a concept, is or is not in conformity with the Constitution, clarifying that the object of the request is rather about whether the specific regulation of medically assisted death implemented by the legislator in this Decree is in conformity with the Constitution, in a matter that lies at the core of citizens rights, freedoms and guarantees, as it involves the right to life and the freedom to limit it, within a framework of human dignity. (cf. point 3 of the request italics added).
The negative boundary is drawn by reference to a concept euthanasia which does not appear in the wording of the provisions of Decree 109/XIV. It is true that the requester does so by reference to the explanatory memorandum of one of the bills at the root of the legislative process that culminated in the approval of the aforementioned Decree Bill No. 104/XIV/1, submitted by the Socialist Party (Proposing the 50th amendment to the Criminal Code, regulating the special conditions for the practice of non-punishable euthanasia) , withdrawing from the same explanatory memorandum the statement that the Constitution does not provide a definitive guideline and the idea that under the Constitution, it is up to the legislator to permit or prohibit euthanasia, according to the social consensus at any given time. And it is in light of this conclusion that the requester states (with the aim of negatively delimiting the issue) that the request to this Court was not intended to address the question of whether euthanasia, as a concept, is or is not in conformity with the Constitution (an expression that, by the way, also appeared in Bill No. 67/XIX/1, presented by the PAN party, which proposed regulating access to medically assisted death, in the areas of euthanasia and physician-assisted suicide cf. the respective Articles 1 and 12).
The object is positively delimited with reference to the specific regulation of medically assisted death implemented by the legislator in the Decree under analysis (cf. request, point 3), presupposing the identification, according to the wording of Article 2(1), of three autonomous criteria (and, which is relevant for assessing the request, two sub-criteria of the second criterion) regarding the non-punishability of intervention by third parties in hastening a persons death at their own request if: i) they are in a state of intolerable suffering; ii) they have an extremely severe and permanent injury according to scientific consensus (first sub-criterion) or an incurable and fatal illness (second sub-criterion); iii) performed or assisted by health professionals (cf. request, points 5 and 6 to 8). The legal and constitutional difficulties stated by the requester are based, as mentioned, on the type of matter to which such regulation relates, a circumstance which, according to the requester, was recognised by the legislator in the aforementioned explanatory memorandum: for the intervention, upon request, of health professionals to be decriminalised without the risk of unconstitutionality on the grounds of violation of the principle of human dignity, the law must be strict, even if it inevitably resorts to indeterminate concepts, provided that they are determinable (request, point 3).
Thus, the issues raised by the requester concern the first criterion (request, point 6) and the second criterion, in particular the first sub-criterion (request, points 7 and 8).
The first issue, related to the first criterion, resides in the fact that this criterion state of intolerable suffering is not defined in any way, nor does it seem to result unequivocally from the medical lege artis; when referring to the concept of suffering it appears to inculcate a high degree of subjectivity; and, given that these concepts should essentially be decided on by the advising doctor and medical specialist, it is unclear how this suffering should be measured: whether from the exclusive perspective of the patient or from the physician's assessment of it. The requester concludes that a concept with this degree of indeterminacy does not seem to meet the Constitutions requirements of regulatory specificity in the matter under consideration (request, point 6).
The requester further argues that clarification of the concepts criteria largely rests on the decision made by the advising doctor and the medical specialist (request, point 10). And concludes that it is for the clinicians, within the scope of the procedure, to decide whether the prerequisites for permitting hastened medically assisted death are met, this then being verified and confirmed by the Verification and Assessment Committee. (request, point 11 cf. Articles 4, 5 and 7 of the Decree) and that the legislator, by using highly indeterminate concepts, moreover in matters of rights, freedoms and guarantees, leaving their definition almost entirely to the opinions of advising doctors and medical specialists, [ ] appears to violate this prohibition of delegation, as contained in Article 112 of the Constitution (request, point 12). Further on, the requester stresses that as [the Decree] suffers from the shortcomings pointed out, its unconstitutionality cannot be remedied by awaiting a future regime, whose content is unknown, even if the legislator makes the entry into force of the regime [in question] dependent on it (request, point 13). In short, by not providing doctors with any firm criteria for interpreting [the] concepts, leaving them, in essence, excessively indeterminate, the legislator has created a situation of legal uncertainty [which] affects all those involved: petitioners, health professionals, and citizens in general, who are thus deprived of a clear and certain regime, on such a complex and controversial issue (request, point
14).
In turn, the second issue of constitutionality raised specifically concerns the sub-criterion of extremely severe and permanent injury according to scientific consensus, and is based on identical reasons (request, point 7): in this case, the total lack of specificity on what constitutes an extremely severe and permanent injury or scientific consensus, combined with the rather indefinite nature of the concept of intolerable suffering (request, point 8). The result of such indeterminacy is the absence of a minimally certain legislative framework that can guide the actions of the doctor involved in the procedure (ibidem). The uncertainty is further aggravated by the nature of the reference an extremely severe and permanent injury since there is no mention of it being fatal, it is difficult to see how there could be any question of hastening death, since this may not occur as a result of the injury. This solution is considered to be not in line with the legislators objectives, insofar as it allows an interpretation according to which a mere extremely severe and permanent injury could lead to the possibility of medically assisted death (ibidem).
11. Given that the questions of constitutionality relate to insufficient regulatory specificity which thus functions as the determining cause of the alleged unconstitutionalities, that is to say, the specific cause of unconstitutionality corresponding to the grounds for the request with respect to the indeterminate concepts in the two criteria (and sub-criterion) identified by the requester, it is not surprising, at least initially, that the requester requested that this Courts ruling be limited to the normative segments of Article 2(1), as identified in the initial part of the request. Moreover, even the reference to the issue of the extent of the freedom to limit the right to life, interpreted in accordance with the principle of human dignity, as resulting from the combination of Article 18(2) with Articles 1 and 24(1), respectively, of the Constitution of the Portuguese Republic made in the requests conclusion, indicates a special requirement with regard to the specificity of the assumptions on which decriminalising hastened medically assisted death depends.
Nevertheless, in order to determine the precise scope of the norm or norms which are the object of the request and also this Courts powers of investigation, it is necessary to consider the content and structure of Article 2 of Decree No. 109/XIV where, as the requester expressly states, the norm or norms they are challenging are contained.
As already mentioned, this precept deals with non-punishable hastened medically assisted death: paragraph 1 refers, prima facie, to the notion of non-punishable hastening of death, stressing that it can only occur by decision of the person him/herself and that it can be carried out directly or with the assistance of health professionals, but in any case, provided that certain conditions are met; paragraph 2 defines the universe of people entitled to request hastened death from a health professional, while paragraph 3 clarifies that, in order to be valid, the decision to hasten death should be formalised in a request, to be processed in accordance with the clinical and legal procedure regulated in the Decree; and finally, paragraph 4 establishes that the request for hastened death may be freely revoked at any time, making reference to the consequences of this revocation, which can be found in Article 11.
Specifically, the normative provision (in the words of BLANCO DE MORAIS, Justiça Constitucional, Volume II, O Direito do Contencioso Constitucional, 2nd ed., Coimbra Editora, Coimbra, 2011, p. 164) of Article 2(1), that is, the wording of that article, which contains the two norms the requester seeks to identify from two literal segments, refers to the notion of non-punishable hastened medically assisted death. Upon an initial reading, that provision contains a legal norm that is structurally complete, i.e., in whose logical component one can distinguish an antecedent and a consequent, i.e., a hypothesis and a disposition (thus, BAPTISTA MACHADO, Introdução ao Direito e ao Discurso Legitimador, Almedina, Coimbra, 1983, p. 79, italics added; in the same vein, cf. MIGUEL NOGUEIRA DE BRITO, Introdução ao Estudo do Direito, AAFDL Editora, Lisbon, 2017, pp. 420 and 432): hastened death performed or assisted by a health professional upon the decision of the person (hypothesis 1), of legal age (hypothesis 2), whose will is reiterated, sincere, free and informed (hypothesis 3), in a state of intolerable suffering (hypothesis 4), with an extremely severe and permanent injury according to scientific consensus (hypothesis 4.1) or an incurable and fatal illness (hypothesis 4.2), is not punishable (disposition).
Delving deeper into the logical understanding of this precept, in its completeness of meaning the definition and enshrinement into law of what constitutes non-punishable hastened medically assisted death , one finds another (rectius, one finds the) legal norm, equally complete (having a normative antecedent/hypothesis and a normative consequent/disposition), that the first paragraph expresses, in its unavoidable integration with paragraph 3 of the same article. And this is so, since the decision, which is expressed in the request made by the person him/herself and which is able to bring about (to have as a result) the hastening of their death (or, according to the wording of Article 12(2) of the Decree, performing the act of hastening [their] death), necessarily triggers (follows, in the terminology of paragraph 3) a clinical and legal procedure, in accordance with the regime laid down by law. According to this combined reading, it follows from paragraph 1: hastened death performed or assisted by a health professional upon the decision of the person (hypothesis 1), of legal age (hypothesis 2), whose will is reiterated, sincere, free and informed (hypothesis 3), in a state of intolerable suffering (hypothesis 4), with an extremely severe and permanent injury according to scientific consensus (hypothesis 4.1) or an incurable and fatal illness (hypothesis 4.2), formally expressed in a request (hypothesis 5), to be processed according to a clinical and legal procedure regulated by the same law (hypothesis 6), is not punishable (disposition).
This is the wording of the legal norm (which is complete) that fully reflects, in its indivisible completeness of meaning without distorting the meaning of what only in that whole acquires true substance , within Decree No. 109/XIV, the intended non-punishable hastened medically assisted death that the legislator aimed to enshrine when approving the law.
Indeed, the essential prescriptive content of the politico-legislative option set down in Decree No. 109/XIV is stated in the respective Article 2(1): hastening the death of a person, at their own request, when performed or assisted by health professionals, is not punishable, provided that certain conditions or prerequisites (corresponding to the aforementioned segments of the hypothesis) are met. In other words, through this provision, the legislator redraws in certain terms and only in these terms the line separating the unlawful from the lawful as regards the voluntary collaboration of third parties in the death of a person at their own request, since outside the conditions laid down in the precept under analysis such collaboration continues to be criminalised (cf. Articles 1 and 27 of the aforementioned Decree).
This means that, at the risk of manipulating or even betraying the legislative thinking, the various conditions determining when the line between punishable and non-punishable hastened medically assisted death is crossed must be seen and understood as a unity of meaning. In other words, each of the cumulative criteria governing the non-punishability of said voluntary collaboration by health professionals in hastening a persons death at their own request hypotheses 1 to 6, without prejudice to the alternative nature of hypotheses 4.1 and 4.2 does not stand alone and autonomously. The structural completeness of the norm corresponds, by force of the prescriptive meaning it contains, to a teleological unity that prevents a segmentation or splitting in which each of the (cumulative) conditions of access or criteria for hastened medically assisted death could acquire an autonomous normative meaning capable of being considered in isolation.
The elimination of one or more of those conditions would, in fact, imply the transformation of the norm in Article 2(1) of Decree No. 109/XIV into an aliud: the aforementioned dividing line between the unlawful/lawful sphere would not only become different namely due to the prerequisite or criterion that would have been eliminated but, above all, would follow a different teleology. Just as it would be inconceivable in the context of an abstract ex post facto review, in the event of a positive ruling of partial unconstitutionality concerning only one of these criteria or conditions, for the norm to continue to be in force without the criterion that was then deemed unconstitutional with the Court itself, through its ruling, ultimately redrawing a new boundary and thus a new norm , in this preventive review, the assessment to be made by the Court cannot fail to consider the norm in its teleological unity and the consequent inseparable union of the elements that make up its hypothesis.
Thus, for teleological reasons namely the aforementioned redefinition of the boundary between what is no longer unlawful and what becomes lawful with respect to voluntary collaboration or intervention in hastening a persons death at their own request the hypothesis of the norm in the aforementioned Article 2(1) (performing or assisting in the hastening of a persons death at their own request under certain conditions) constitutes a unity of meaning that cannot be reduced to the sum of the different criteria or prerequisites set out therein as a condition for implementing the disposition (the decriminalisation or non-punishability of such a practice). In this case, therefore, the whole of that hypothesis is more than the sum of its parts.
This substantive reason has, as mentioned, a bearing on the formal and structural completeness of the norm in question. Article 2(1) contains a typical normative formulation: it guides the conduct of its addressees and constitutes an autonomous decision criterion. The same precept is a genuine normative provision. Contrary to what might appear on a superficial reading, its scope is not confined to determining the situations to which the regime established in the subsequent articles applies, as if it were a simple legal definition (on the contrast between prescriptive norms and other legal pronouncements, such as legal definitions, see, in addition to the authors mentioned above, JOSÉ LAMEGO, Elementos de Metodologia Jurídica, Almedina, Coimbra, 2016, pp. 39 et seq.) On the contrary, these articles, particularly those in Chapter II (Articles 3 to 16), develop and regulate aspects already contained in Article 2(1).
The inadequacy of the wording of this precept as a legal definition (or as a definition tout court) is also implicitly recognised by the requester when stressing its incomprehension, supporting the criticism expressed in the opinion of the National Council of Ethics for the Life Sciences, regarding what was identified above as the first sub-criterion of the second criterion: as the only criterion associated with the injury is its permanent nature, and as there is no mention of it being fatal, it is difficult to see how there could be any question of hastening death, since this may not occur as a result of the injury (request, point 8). As death is an inevitability the time is uncertain, but death is certain the (only) hastening of death relevant here is that which, being punishable in other circumstances, by virtue of Article 2(1) of the Decree, ceases to be so.
In any case, it should be noted that neither the structurally complete nature of a given norm nor its teleological unity constitute definitive obstacles to identifying, using opportune segments of the same or parts of the respective wording, other autonomous norms with a narrower scope thus splitting the original norm into (sub)norms with a narrower scope this not necessarily distorting or calling into question the fundamental normative meaning of the former.
For example, and in confirmation of this, in the present case, four norms can easily be made autonomous, considering the double alternative to perform or assist the hastening of death upon request by a person in a state of intolerable suffering, with a permanent injury or an incurable and fatal illness. And in any of them the teleological unity of the respective hypothesis subsists, since in all of them the aforementioned redrawing of the line between unlawful and lawful by the legislator continues to apply and, crucially, to be respected in its essential core even if only in the respective material scope of application which is necessarily more restrictive.
The legislator intended to establish, by means of Decree No. 109/XIV, and in the exercise of their legislative discretion, the maximum scope of legality within the framework of pre-existing illegality. Therefore, the aforementioned normative segmentation would be possible because all that would be at stake is the delimitation, within that maximum scope, of smaller areas of lawfulness with respect to non-punishable hastened medically assisted death only the assistance, and not also the act; or only in the event of an incurable and fatal illness; and not also in the event of an extremely severe and permanent injury. It would therefore be a question of reducing, for reasons of constitutionality, the scope of legality created by the legislator within the already existing illegality, and which the legislator wished to maintain; and not of increasing it, as might perhaps result from the suppression of other conditions. Such a reduction or limitation would be legitimate insofar as the Court would not be breaking new ground by taking the place of the legislator in this task, but merely, in exercising its power of negative control, restricting, for reasons of constitutional legitimacy, the decisions already made by the legislator itself.
12. Thus, in the present case, assuming that the requesters claim is that the judgement to be made should be limited to the norms (normative segments), considered in isolation, of Article 2(1) of Decree No. 109/XIV set out in the request the norms set out in Article 2(1) insofar as it defines non-punishable hastened medically assisted death as hastened death upon the personal decision of a person of legal age in a state of intolerable suffering, and insofar as it includes in the concept of non-punishable hastened medically assisted death the (sub)criterion of extremely severe and permanent injury according to scientific consensus it is considered, however, as follows from the considerations made in the previous paragraph and, in particular, in view of the completeness and meaning of the legal norm in question, that analysing such a claim lacks meaning if it is not incorporated into the overall logical series of elements envisaged by the hypothesis of the norm which, cumulatively, determine the non-punishability of hastened medically assisted death upon the decision of the person in question and at their request.
In fact, it is clear from the structure of the norm that the segments of Article 2(1) that appear separately in the request correspond to two aspects that, together with the others, constitute requirements or prerequisites for the favourable opinion to be issued by the CVA, following successive favourable opinions issued by the doctors involved in the procedure (Article 7(1)). This opinion is a necessary condition to move on to the phase of implementing the decision to hasten the death of the person who, upon their request, initiated the clinical and legal procedure culminating in the administration (or self-administration) of lethal drugs (Articles 2(3), 8(1) and 9, all of Decree No. 109/XIV). As such, these segments should be understood logically and teleologically as objective elements (along with others not mentioned in the request) on which depends the exemption from punishment of a health professional performing or assisting in the hastening of a persons death at their own request.
It must be understood, therefore, that the material object of the request made by the requester cannot fail to be narrowed down, so that it truly acquires meaning in the comprehensive framework in which it is integrated and justified, in combination with the other elements of the norms hypothesis.
Thus, the norm subject to primary assessment, as understood by the Court, is that contained in Article 2(1) of Decree No. 109/XIV, with all its prescriptive content (in particular that which ensues from paragraph 3 onwards), as a complete norm, in considering that non-punishable hastened medically assisted death is such when it is the personal decision and current, reiterated, sincere, free and informed will of a person of legal age in a state of intolerable suffering, with an extremely severe and permanent injury according to scientific consensus or an incurable and fatal illness, when performed or assisted by health professionals and brought about by means of a request that follows a clinical and legal procedure (provided for in the Decree).
This narrowing or understanding allows the Court to analyse the conformity of the norm with the Constitution, including the parameter of the right to life, enshrined in the respective Article 24(1), which the requester invokes when stating (negatively and positively) the object of the request, referring to a matter that lies at the core of rights, freedoms and guarantees, as it involves the right to life and the freedom to limit it, within a framework of human dignity; also, in the conclusion, when the requester refers to the extent of the freedom to limit the right to life, interpreted in accordance with the principle of human dignity, as resulting from the combination of Article 18(2) with Articles 1 and 24(1), respectively, of the Constitution of the Portuguese Republic (cf. point 3 of the request and the conclusion); or, finally, when stating that the insufficient regulatory specificity seems at odds with the constitutional requirement regarding the right to life and human dignity (request, point 9).
13. The specific constitutionality issues raised by the requester and on which the Court has the duty to rule here based on the allegation of insufficient regulatory specificity in the criteria identified by them regarding parameters such as the principles of legality and the vagueness doctrine, enshrined in Articles 29(1) and 112(5) of the Constitution, only make sense in the light of the prescription contained in Article 2(1) of the Decree. The degree of determinability required for the concepts, expressly referred to in the initial part of the request and throughout the respective grounds and, before that, the very normative/legal meaning and scope of the same can only be understood in light of the prerequisites or criteria that those concepts are intended to express. In other words, they only correspond to criteria because they are associated with producing certain legal effects (in casu, these are essential prerequisites for the non-punishability of assisting in medically assisted death; considered as mere linguistic statements, the concepts in question merely describe the empirical reality, without any legal relevance. On the other hand, in the legal and administrative dogma pertinent in casu, primarily due to the necessary intervention of a public entity in the clinical and legal procedure, as is the case with the CVA, through the issue of an opinion (cf. Articles 7(1) and (4), 23, 24 and 25(1), all of Decree No. 109/XIV the normative indeterminacy deriving from the use of certain expressions is relevant for the purposes of knowing whether or not the legislator intended to grant a margin of discretion and, if so, its limits and such a conclusion depends on the interpretation of the norm containing those concepts (cf., for all, FREITAS DO AMARAL, Curso de Direito Administrativo, vol. II, 3rd ed., Almedina, Coimbra, 2016, pp. 93 et seq., particularly p. 100: only specifically, by interpreting the law can it be determined which category a certain indeterminate concept corresponds to; and MARCELO REBELO DE SOUSA and ANDRÉ SALGADO DE MATOS, Direito Administrativo Geral, volume I, 3rd ed., Dom Quixote, Alfragide, 2008, pp. 183 et seq., particularly pp. 190-193). In other words, the degree of determinability required for concepts used in linguistic statements relating to normative provisions depends on the meaning and scope of the norms in which they are incorporated. Thus, in the present case, the determinability of the concepts expressly referred to by the requester implies knowledge of their function within the framework of the very hypothesis for hastened medically assisted death.
B) The problematic horizon of hastened medically assisted death provided for in Article 2(1) of Decree No. 109/XIV
14. The foregoing considerations make it possible to understand the problematic horizon within which the non-punishability of hastened medically assisted death object of Decree No. 109/XIV resides and make the argumentative strategy pursued by the requester clearer, particularly with regard to the expressed intention not to discuss euthanasia, as a concept and the question of whether or not it is or is not in conformity with the Constitution (request, point 3).
The reality is that hastened medically assisted death implies the voluntary collaboration of health professionals in the death of a person at their own request, which, to date, is always punishable under Articles 134 and 135 of the Criminal Code (or, perhaps, depending on the circumstances of the case, even Articles 131 and 133 of the same Code). The legislators main aim, at least with regard to the norm in Article 2(1) of the aforementioned Decree, was to cease punishing such collaboration, provided that it was carried out by health professionals in compliance with certain material and procedural conditions, thus freeing them from the duty not to kill and not to assist the suicide of others. In other words, and now from the perspective of those wishing to die: the right to a medically assisted death under the legally prescribed conditions a right which is also conferred by the legislation under analysis implies exempting from punishability the health professionals who, under the same conditions, kill or assist in the death of the person exercising that right.
From the requesters point of view, performing a hastened medically assisted death, as provided for in the aforementioned Article 2(1), is considered not punishable as long as certain prerequisites are observed, among them, the state of intolerable suffering, with an extremely severe and permanent injury according to scientific consensus or an incurable and fatal illness. However, given the objective meaning of such a practice killing someone at their own request or helping someone to commit suicide a discussion of the specific conditions or prerequisites for this practice only makes sense and is only useful if it is not in itself incompatible with the Constitution, particularly with Article 24(1). Hastened medically assisted death, by its very nature, obviously conflicts with the value of human life stated in that precept, so that this issue, besides being unavoidable, precedes all the others expressly raised by the requester (and this, regardless of the scope attributed in this case to the object of the request).
15. The alternative between performing or assisting non-punishable medically assisted death invokes, at least implicitly, different concepts usually associated with the issue that the legislator intended to regulate the decision of a person to end their life, with the involvement of another person, who helps them perform the act that causes death or performs such an act avoiding the more usual expressions to refer to the concepts of assisted dying (Sterbehilfe) or euthanasia, often discussed and analysed in the field of criminal law. These are very different realities whose semantic core is related to the idea of providing a good death or a gentle death to those who are in a terminal phase of life, afflicted by an incurable illness and in a state of profound suffering (see RUI MEDEIROS and JORGE PEREIRA DA SILVA in JORGE MIRANDA and RUI MEDEIROS, Constituição Portuguesa Anotada, volume I, 2nd ed., Coimbra Editora, Coimbra, 2010, note XXVII to Article 24, p. 530; in the same basic sense, see FIGUEIREDO DIAS, A ajuda à morte: uma consideração jurídicopenal in Revista de Legislação e de Jurisprudência, no. 137, Year 2007-2008, no. 3949 (March-April 2008), pp. 202 et seq., p. 203).
This perspective is confirmed by the five bills that formed part of the legislative procedure culminating in the approval of Decree No. 109/XIV:
The aim of Bill No. 4/XIV/1, presented by the Left Bloc, was to define and regulate the conditions under which hastened death upon the decision of the person (with a permanent injury or incurable and fatal illness and in lasting and unbearable suffering), when carried out or assisted by health professionals, is not punishable (Articles 1 and 8(2));
Bill No. 67/XIV/1, presented by the PAN party, was intended to regulate access to medically assisted death, in the areas of euthanasia and physician-assisted suicide (cf. Articles 1 and 12);
The aforementioned Bill No. 104/XIV/1, presented by the Socialist Party, aimed to regulate the special conditions under which the practice of euthanasia is not punishable (Article 1), including in the concept of euthanasia both performing and assisting the hastening of death (non-punishable euthanasia is considered to be hastened death upon the personal decision of a person of legal age in a state of extreme suffering, with a permanent injury or incurable and fatal illness, when performed or assisted by health professionals cf. Article 2(1));
Bill No. 168/XIV/1, presented by the Ecologist Party (The Greens), aimed to regulate the specific conditions and procedures to be observed in cases of medically assisted death and to amend the Criminal Code to decriminalise medically assisted death (Article 1(1)), which consists in the administration of drugs by a doctor or by the patient him/herself under medical supervision, which in this case constitutes physician-assisted suicide (Article 3(2)(a) and (b));
Finally, Bill No. 195/XIV/1, presented by the Liberal Initiative party (IL), intended to define and regulate the conditions under which hastening death following a conscious and express decision, manifesting the current, free, sincere and informed will of a person who, suffering from a permanent injury or incurable and fatal illness, is in a state of lasting and unbearable suffering, when performed or assisted by health professionals, is not punishable (Article 1), being brought about by the self-administration, or administration by a physician, of a lethal drug (Article 8(2)).
In total, the term euthanasia only appears in two of the bills presented either encompassing the acts of performing and assisting in the hastening of death (Bill No. 104/XIV/1) or distinguishing euthanasia from physician-assisted suicide (Bill No. 67/XIX/1). Certainly the omission of the term in the approved Decree must have taken into account the fear that the difficult issues posed by this matter, even in terms of its specifically legal and criminal impact, [are] often obscured by the impassioned climate in which the controversies arise, especially when faced with the taboo that continues to be attached to the term euthanasia (cf. FIGUEIREDO DIAS, op. cit. p. 202, who subsequently warns of the need for a rigorous delineation of the problematic context in question ibidem, pp. 204-205).
Hence the importance of clarifying, ab initio, that the core issue of euthanasia is usually and typically medical assistance [...] in the death of a patient already in a state of cruel suffering which, according to the latest medical knowledge and a well-founded medical prognosis, will inevitably lead to death; medical assistance which will predictably shorten the life of the person who is dying (see RUI MEDEIROS and JORGE PEREIRA DA SILVA, op. cit., note XXVIII to Article 24, p. 533, citing Figueiredo Dias). This is the traditional and basic reference point, which underpins the ideas of humanity and compassion that shape the notion of good death or peaceful death, an inevitable death, but one without suffering.
As comparative law evidence shows, the issue of assisted suicide or physician-assisted suicide but no longer that of death upon request has also been approached from a different perspective, rooted in personal autonomy and the resulting capacity for self-determination, even in relation to the end of life (see, in particular, the decisions of the Bundesverfassungsgericht of 26 February 2020 [2 BvR 2347/15, in particular, Rn. 210 and 212-213] and the (Austrian) Verfassungsgerichtshof, of 11 December 2020 [G 139/2019-71, in particular, Rn. 73-74 and 80-81]. However, this was clearly not the path followed by the Portuguese legislator, which not only decided to jointly address the performance of hastening the death of a person at their request and assisting in hastening death, also at the request of the person dying (cf. Articles 2(1), 8(2) and 9(2) of Decree No. 109/XIV), but also, above all, upheld the criminalisation of assisted suicide, if conducted outside the conditions envisaged in the Decree (cf. the respective Article 27).
16. Even within the aforementioned problematic frame of reference of the Portuguese legislator, it is necessary and fitting to clarify certain notions.
The term euthanasia comes from Greek and derives from combining the words eu (good) and thanatos (death), expressing the idea of a good death. In a broad sense, the concept is usually used indiscriminately to encompass different situations associated with assisted dying. In the strict sense, however, it is used to designate situations in which a third party actively or passively causes the death of another person. Thus, active (direct) euthanasia is an action by a person intended to directly cause the death of another person at their request. Passive euthanasia, on the other hand, is the deliberate failure of a person (usually a doctor) to adopt measures to prolong the life of another, which will invariably lead to their death. While active euthanasia is criminalised in almost all legal systems worldwide (either by its subsumption to the crime of homicide or to a privileged crime of homicide at the victims request), passive euthanasia has become more widely accepted and is permitted in a much larger number of states.
Distinct from euthanasia in the strict sense are situations involving assisted suicide (or aid in dying), where a third party merely assists another person to commit suicide. The difference from cases of active euthanasia lies in the fact that it is not the third party who directly causes the death of another person, but merely assists the latter in ending their own life (e.g., through the supply of a lethal substance, which is independently ingested or injected by the person wishing to die). This conduct is also criminalised in almost all states worldwide, although there are legal systems that show greater tolerance towards this practice in comparison with active euthanasia (e.g., Germany, Italy, Switzerland and now, following the aforementioned decision of the Verfassungsgerichtshof, also Austria).
Finally, it is also important to point out that there are other situations and concepts that are closely linked to the issue of assisted dying. One of them is orthothanasia (also known as indirect active euthanasia), referring to medical interventions which, although intended to reduce the patients pain, present the risk of shortening their life. Dysthanasia (also known as therapeutic obstinacy) occurs when a patient is kept alive in a merely artificial and disproportionate manner by means of life-sustaining medical treatments that delay a death that appears inevitable.
17. It is recalled that the norm in Article 2(1) of Decree No. 109/XIV, as understood by this Court, deals with what, for the purposes of the law, is considered to be a non-punishable hastened medically assisted death, containing, in its complete structure, the hypothesis and disposition elements already identified previously. As also already mentioned, that precept contains various normative hypotheses, which may be combined, all leading to the same concept which the legislator calls hastened medically assisted death and all subject to the same regime corresponding to the procedures and conditions regulated in the aforementioned Decree.
Taking this complex framework as an assumption, one cannot fail to specify that the aforementioned Article 2(1) establishes in its species facti, the alternatives of a non-punishable hastened medically assisted death i) performed by health professionals; or ii) assisted by such professionals. By jointly addressing and considering, in a completely abstract fashion, the will to hasten death and the conditions under which it may be relevant, up to practically the end of the preliminary procedure for executing the specific act of hastening death (the expression appears in Article 13 of Decree No. 109/XIV), through the hetero-administration or self-administration of lethal drugs, the legislator establishes a categorical and normative parity between two end-of-life practices, commonly referred to as direct active euthanasia and assisted suicide. From a legal perspective, it refers indistinctly to the involvement of the advising doctor and other health professionals in the preparation and execution of the act of hastening death.
Despite the structural differences between those two practices, based on control over the act that immediately and irreversibly produces death (see, for example, COSTA ANDRADE, Comentário ao artigo 134.º, §§ 18-24, pp. 105-109, especially § 23, p. 108, in FIGUEIREDO DIAS (dir.), Comentário Conimbricense do Código Penal, volume I, 2nd ed, Coimbra Editora, Coimbra, 2012) but in the regime contained in the aforementioned Decree, nevertheless, much attenuated by way of the respective proceduralisation , the legislator has opted to place greater emphasis on the moments of communicability between the two, which do exist, and which, given the prerequisites set out in Article 2(1) of the same decree, are reinforced:
At issue are two criminalisations [ Homicide at the victims request, in the case of active euthanasia; and Incitement and assistance to suicide, in the case of physician-assisted suicide ] in whose area of protection the presence inter alia of the purpose of avoiding the (abstract) danger of a decision hastened or precipitated by the end of a person's life seems irrefutable. In either case, punishing the act remains problematic in specific situations where the danger lacks plausibility. That is, in those specific situations where in view of the irreversible loss of meaning of the continuation of life due to the irreversible imminence of death and the uncontrollable and unbearable nature of the suffering exercising self-determination in order to end life appears objectively reasonable. Accordingly, respect for personal dignity implies respect for the patients understandable decision (see COSTA ANDRADE, Comentário Conimbricense, op cit., Comentário ao artigo 135.º, § 12, p. 139).
In other words, largely disregarding the differences usually pointed out, Decree No. 109/XIV opts to indiscriminately address and consider these types of conduct as a single mode of action: hastened medically assisted death.
This is regulated without any distinction as to the type of agent causing the death or the extent of their actions in doing so. In fact, the choice between performing a hastened death and the assistance provided for it is, ultimately, one for the patient (cf. Article 3(1)), to be made once already at the stage of implementing the decision to hasten their death a late stage in the clinical and legal procedure established by Decree No. 109/XIV concerning the method to be used in hastening death: the self-administration of lethal drugs by the patient themselves or administration by a doctor or health professional duly qualified for this purpose but under medical supervision (Article 8(2)).
C) The meaning and scope of medically assisted death as regulated in Decree No. 109/XIV
18. The alternative resulting from the legislative option set out in Decree No. 109/XIV which is reflected in Article 2(1) between performing or assisting a non-punishable hastened medically assisted death should be understood and framed within a complex framework of legal regulation that includes, namely in a dynamic interaction between the citizen-patient and the state, a special administrative procedure of an authorising nature. Its purpose is the issuing of a favourable opinion by the CVA, which constitutes a sine qua non condition for the act (or material operation) of hastening death.
According to Article 7(1), in cases where the favourable opinions have been issued previously by the advising doctor and the medical specialist (and possibly the psychiatric specialist) Articles 4, 5 and 6 and the patient has confirmed their will to hasten death following each of these opinions, the CVA must, at the request of the advising doctor, issue an opinion on the fulfilment of the requirements and the compliance of the previous phases of the procedure, within a maximum of 5 business days. If the CVA issues a favourable opinion, the advising doctor informs the patient of its content, after which they once more verify whether the patient maintains and reiterates their will (Article 7(4)). Only then can the same doctor determine, alongside the patient, the day, time, place and method to be used to hasten death (Article 8(1)). The hastening of death itself, through the administration (performing a hastened death upon request) or self-administration (assistance in hastening death) of lethal drugs is provided for and regulated in Article 9 of the Decree.
The CVA is an independent body created in the Assembly of the Republic and functioning within its scope to comply with Article 7(1), with its composition and main operating procedures established in Decree No. 109/XIV (cf. Articles 23 and 24). Its central role in the hastened medically assisted death procedure results, in the first instance, from the function of prior control assigned to it by virtue of its competence to issue the opinion that ends the preparatory phase of said procedure: hastened medically assisted death may only be carried out if the opinion of that Committee is favourable (cf. Article 8(1)). Secondly, the a posteriori intervention of said Committee should be highlighted, whether in the context of the subsequent verification of the legality of each procedure, through the assessment report (cf. Article 25(2) and (3)); or in terms of the overall assessment of the systems functioning, through the annual evaluation report to be submitted to the Assembly of the Republic (cf. Article 26).
Another supervisory body that signals the public commitment to the clinical and legal procedure provided for in the Decree under review is the General Inspectorate of Health Activities (IGAS), which oversees clinical procedures for hastening death and is empowered to suspend or cancel procedures already under way for duly justified reasons (cf. Article 22(1) and (2)). To this end, the advising doctor must send the IGAS a copy of the Special Health Record (SHR; on this see Article 3(1)) once the patients decision on the method for hastening death has been recorded, i.e., from the moment the administration of lethal drugs becomes possible (cf. Article 8(4)). The IGAS may attend the procedure implementing the patients decision, without permission from the patient or the advising doctor (cf. ibidem, and without prejudice to Article 9(1)). Finally, the IGAS provides the CVA with the requested information on the monitoring procedures carried out for the purpose of assessing compliance with the law (cf. Article 26(3)).
19. Hastened medically assisted death thus implies the performance of a special administrative procedure, of an authorising nature, aimed at verifying the conditions that, by law, entitle a person to obtain the collaboration of health professionals in hastening their own death; or, from the perspective of the latter, that allow for their involvement in preparing and implementing the act of hastening a persons death, at their own request, without fear of criminal prosecution, since they are, in view of the observance of the aforementioned legal conditions in the specific case, released from the duty not to kill or not to assist suicide.
The procedure in question begins with a request from the person wishing to hasten their death and proceeds through a series of successive acts that culminates or rather, may culminate in carrying out the act of hastening death, via the self-administration of lethal drugs (i.e., by the patient themselves) or through the administration of such drugs directly by the doctor or health professional, under medical supervision (hetero-administration). Such a procedure involves, namely: i) the request for opening the clinical procedure to hasten death, by the person (the patient) who has made the decision to hasten their death, to be included in a SHR created for that purpose (Articles 2(3) and 3(1)); ii) the issuing of a reasoned opinion by the advising doctor as to whether the patient meets all the requirements referred to in Article 2 (Article 4(1)); iii) if this opinion is favourable, the issuing of an opinion by the medical specialist, confirming that the conditions referred to in Article 2 are met, as well as the diagnosis and prognosis of the clinical condition and the incurable nature of the illness or permanent nature of the injury (Article 5(1)); iv) where appropriate, the opinion of a psychiatric specialist under the conditions laid down in Article 6; v) the issuing of the final opinion by the CVA, serving as authorisation for non-punishable hastened medically assisted death (Article 7); vi) the implementation of the patients decision, by determining the day, time, place and method to be used for hastening death (Article 8); vii) the act of hastening death, through the self-administration of lethal drugs which corresponds to hastened death assisted by health professionals or the hetero-administration of said drugs hastened death performed by health professionals (Article 9); and, downstream, viii) the preparation of a final report by the advising doctor, attaching the SHR, to be sent to the CVA and the IGAS.
It should be noted, in any case, that the intervention involved in issuing an opinion, with the exception of the advising doctor (and, where appropriate, also the psychiatric specialist), do not expressly envisage a direct relationship (a clinical examination or direct contact) between the intervening parties at that stage the medical specialist and the CVA and the patient.
Within the context of this procedure, the (strictly personal and non-delegable) decision of the person to hasten their death, as mentioned in Article 2(1) of the Decree, is repeated throughout on at least six (possibly seven) occasions during the administrative procedure involved in the preparation and implementation. Firstly, by formulating the request to open the clinical procedure, in a written document, dated and signed by them or a person designated by them (Article 3(1)); secondly, after the issuing of a reasoned opinion by the advising doctor, upon the decision to maintain and reiterate their will, which must be recorded in writing, dated and signed (Article 4(1)) and also signed by the advising doctor (see paragraph 2 of the same precept); thirdly, after the issuing of a favourable opinion by the medical specialist, upon the decision to maintain and reiterate their will, before the advising doctor (who informs the patient of the content of that opinion), which must be recorded in writing, dated and signed (Article 5(1)); fourthly (possibly), after the issuing of a favourable opinion by the psychiatric specialist, should they be required, upon their decision to maintain and reiterate their will, after being informed by the psychiatric specialist, together with the advising doctor, of the content of that opinion a decision that is described as conscious and express , which should be recorded in a written document, dated and signed (Article 6(1)); fifthly, after receiving a favourable opinion from the CVA, upon their decision to maintain and reiterate their will before the advising doctor (who informs the patient of the content of that opinion) a decision described as conscious and express which must be recorded in a written document, dated and signed (Article 7(4)); sixthly, in the phase of implementing the patients decision, in which the advising doctor informs and advises the patient on the methods available for hastening death, namely the self-administration of lethal drugs or administration by a physician or health professional duly qualified for this purpose but under medical supervision the decision in this phase being the exclusive responsibility of the patient, which must be recorded in writing, dated and signed (Article 8(2), (3) and (4)); finally, the seventh phase is the administration of lethal drugs, in which, immediately before initiating the administration or self-administration of such drugs, the patient must confirm to the advising doctor whether they maintain the will to hasten their death here no longer in writing, but in the presence of one or more witnesses, duly identified in the SHR (Article 9(3)).
This requirement to communicate to the advising doctor as well as document in a public register such as the SHR the wish to uphold the initial decision to hasten ones own death is proof of the necessary interaction between the interested party and the third parties actively involved, always on the basis that their conscience is safeguarded by the right to conscientious objection (cf. Article 20) in hastening the death and with the State itself. The latter, through the CVA and IGAS, has the function of guaranteeing that each and every one of the conditions set out in Article 2(1) of the Decree is met, from the moment of the initial request until the act of hastening death is carried out. This, of course, without prejudice to the State also being able to play the role of provider of such a service within the framework of the National Health Service, as per Article 12(2).
20. In an attempt at a meaningful summary, Decree No. 109/XIV, through the consequential specification of the situation defined in the respective Article 2(1), understood in the full normative context described above, creates and frames legalises, to use the concept that framed the public debate held in this respect , socially organises (to use Gustavo Zagrebelskys expression see below), the practice of euthanasia and assisted suicide. Since both situations amount to causing death at ones own request, they are distinguished, as mentioned above, by the control over the act that immediately and irreversibly produces death (cf. final part of no. 17 above).
This distinction is expressed, in the process leading to death established in Decree No. 109/XIV, in Article 8, specifically in paragraph 2, which states:
Article 8
Implementing the patient's decision
1 With the favourable opinion of the CVA, the advising doctor, in accordance with the will of the patient, agrees on the day, time, place and method to be used to hasten death.
2 The advising doctor informs and advises the patient on the methods available for hastening death, namely the self-administration of lethal drugs by the patient themselves or administration by a physician or health professional duly qualified for this purpose but under medical supervision, the decision being the exclusive responsibility of the patient. [...].
And when implementing the final definitive step, the so-called administration of lethal drugs, provided for in Article 9(2): [i]mmediately before initiating the administration or self-administration of lethal drugs, the advising doctor should confirm that the patient maintains the will to hasten their death [ ].
Thus, the distinction between euthanasia and assisted suicide is based on, with respect to the patient, the aspect of hetero-administration and self-administration of the substance that will produce death. Before this moment is reached, a patients decision is made, ultimately aimed at achieving their own death, through a procedure to obtain authorisation (from the State) for this outcome (in the two aforementioned forms of implementation) which is conditional upon verification of the conditions listed in Article 2(1).
In other words, in view of causing (hastening, in the legal terminology) death, the personal decision and current, reiterated, sincere, free and informed will of a person of legal age, when the person is in a state of intolerable suffering, with an extremely severe and permanent injury according to scientific consensus or an incurable and fatal illness, is apt, within the framework of a specific legally established procedure (no. 3 of the precept), to produce an act of an authorising nature although always referred to as a favourable opinion , by the CVA, this act authorising health professionals to directly perform or assist in bringing about the ultimate outcome, i.e., the patients death (see the final part of Article 2).
At the heart of the legislative option established by Decree No. 109/XIV, is the creation of a general procedure for processing requests for medically assisted death, according to which a group of people is established those who meet the conditions established in Article 2(1) of the Decree who are eligible for the practice, under the (legal) protection of the State, of euthanasia or assisted suicide.
21. Thus, the aforementioned legislative option, enshrined in its core aspects in Article 2(1) of said Decree, refers in its substance, upstream of any legal and criminal impact (which only applies consequentially as a result of establishing the procedure), to a category of end-of-life practices which, together with various others that are not relevant to the analysis of the norm in question (such as dysthanasia or orthothanasia), refer to intentionally causing death by oneself and/or through a third party (this includes direct active voluntary euthanasia and assisted suicide) by means of the deliberate administration of lethal substances (see LUCÍLIA NUNES, LUÍS DUARTE MADEIRA and SANDRA HORTA E SILVA, Suicídio ajudado e eutanásia [Morte provocada a pedido] Terminologia e sistemática de argumentos. Working Paper, National Council of Ethics for the Life Sciences, 2018 [updated January 2020], p. 7). At the core of that option is, therefore, enshrining certain end-of-life practices in the legal system, with Decree No. 109/XIV manifesting the legislators option not only to decriminalise them under certain conditions (through the simple non-punishment of certain conducts, which would remain punishable if it were not for that option) but also to regulate them and thus legalise them within the framework (and only within the framework) of an administrative authorisation and implementation procedure which the State itself establishes and regulates in all its phases and with the intervention (not only, but always) of public entities.
As far as this legislative option is concerned, of central importance are the concepts of direct active euthanasia (or direct active aid in dying) and assisted or aided suicide which, in the regime in question, only differ in one very specific aspect that is, perhaps, of less importance: whoever has control over the action and effectively carries out the act of hastening death through the use (self-administration or hetero-administration, as the case may be) of lethal drugs and, as mentioned, upon the decision [that is] the exclusive responsibility of the person killed with such drugs (Article 8(2)). In the first case direct active euthanasia control over the action at the final moment is in the hands of the health professional carrying out the act of hastening death by administering a lethal drug (to the person who has decided to hasten their death); in the second case assisted or aided suicide control over the action at that moment is materially divided between the person who decides to hasten their death and the person who assists them in the act of self-administering the lethal drug. It can well be said, therefore, that the clinical and legal procedure established by Decree No. 109/XIV within which medically assisted death takes place presupposes an active and decisive intervention by health professionals: without their collaboration and without the legal and procedural framework in which it takes place, hastened medically assisted death is not lawful and remains criminally punishable. Therefore, this framework, in substance, brings the assistance in bringing about the hastened medically assisted death of someone at their own request closer to direct active euthanasia the performance by health professionals of the acts necessary to hasten that persons death, with the exception of the material act of administering the lethal drug and distances it from a truly autonomous and merely assisted or aided suicide (cf. final part of no. 17 above).
22. Having confirmed that the specific regulation of hastened medically assisted death by Decree No. 109/XIV brings it into the problematic horizon of euthanasia in a broader sense (and also in the true sense, so as to cover only voluntary collaboration in the death of a person at their request for reasons of compassion, humanity or solidarity and with the aim of providing a peaceful death to those in a state of profound suffering thus excluding phenomena such as eugenic euthanasia), it becomes unavoidable to discuss whether or not the legislative option enshrined in the respective Article 2(1) is compatible with the right to life stated in Article 24(1) of the Constitution, since to hasten someones death, even at their request, or to aid someone in hastening their own death necessarily implies causing that person to die or contributing decisively to their death.
In other words, faced with the alternative resulting from the legislative option in Article 2(1) of Decree No. 109/XIV between performing or assisting non-punishable medically assisted death once the cumulative (or alternative) prerequisites also provided for in Article 2(1) are verified , one cannot fail to consider, when evaluating the constitutional conformity of the norm contained in that article, the constitutional parameter relating to the right to life.
D) The compatibility of hastened medically assisted death with the inviolability of human life (Article 24(1) of the Constitution)
23. The foregoing conclusion shows that the apparent attempt at self-limiting the request in the manner advocated in point 3 thereof and which is based on the radical distinction between a purely conceptual and abstract perspective, perhaps based on philosophical, ethical or other postulates, and what could be considered as an already (or mere) positive-law perspective on a given legal framework does not solve the issue. The issue of constitutionality as to whether, by enshrining non-punishable hastened medically assisted death, including the specific elements of the hypothesis contested by the requester, there is a violation of the right to life, as enshrined in Article 24(1) of the Constitution, because it concerns the very prescriptive meaning of the norm in Article 2(1) of Decree No. 109/XIV, comes before all else, since it only makes sense and is useful to discuss defects affecting elements or parts of that same norm, provided that the norm taken as a whole, given its prescriptive meaning, can subsist in light of the constitutional parameter. In fact, and as already mentioned previously (cf. no. 12 above), the discussion about the constitutional conformity of specific conditions or prerequisites concerning hastened medically assisted death itself only makes sense and is useful if such hastened medically assisted death is not, from the outset, and in itself, considered incompatible with the Constitution, namely with Article 24(1). And this is so because such hastening of death implies the voluntary and causal collaboration of third parties, namely health professionals and the CVA itself by means of its favourable opinion (leaving aside the IGAS actions) in the death of a person at their own request.
In light of the above, delineating the object of the procedure as above i.e.: the norm contained in Article 2(1) of Decree No. 109/XIV, in considering that non-punishable hastened medically assisted death is such when it is the personal decision and current, reiterated, sincere, free and informed will of a person of legal age in a state of intolerable suffering, with an extremely severe and permanent injury according to scientific consensus or an incurable and fatal illness, when performed or assisted by health professionals and brought about by means of a request that follows a clinical and legal procedure provided for in the aforementioned Decree (cf. no. 12 above) necessarily invokes, as a primary parameter in assessing this object, the issue of constitutional protection of the right to life, based on Article 24(1) of the Constitution, which is the first part and this is a meaningful fact of the Title (II of Part I) which in the constitutional text concerns rights, freedoms and guarantees (the same occurring, sequentially, in Chapter I of that Title (Personal rights, freedoms and guarantees).
But the conclusion could not be otherwise, even in the event that the request should be considered limited to the specific aspects addressed in the request the criterion expressed in the concept of a state of intolerable suffering (point 6) and the first sub-criterion of the second criterion, corresponding to extremely severe and permanent injury according to scientific consensus (points 7 and 8), because they are, in both cases, central (and cumulative) prerequisites for the regulatory solution that establishes the non-punishability of hastened medically assisted death, thus allowing such procedures of a euthanasic nature to become admissible in the Portuguese legal system (cf. no. 13 above). The entire clinical and legal procedure for hastened medically assisted death is aimed at the act of ending the life of a person at their own request, either by enabling the self-administration of lethal drugs in a controlled manner and in an appropriate environment, or via hetero-administration of the same type of drugs in identical conditions.
24. The aforementioned paramount position of the right to life is evidenced, from the outset, by the literal element of the text which expresses in a highly incisive way:
Article 24
Right to life
1 Human life is inviolable.
2 In no case shall there be the death penalty.
This privileged status is confirmed by considering the context in which it was enshrined as expressively as this, placing it as the requester states at the core of citizens rights, freedoms and guarantees.
The wording of this precept was unanimously approved by the Constituent Assembly and has remained unaltered since the original version of the 1976 Constitution (having merely moved from Article 25 to the current Article 24 due to the new arrangement of the text resulting from the first constitutional revision of 1982). In it stands out the use of the adjective inviolable, only repeated in the constitutional text, with similar evaluative weight in Articles 25 (Every person's moral and physical integrity is inviolable) and 41 (The freedom of conscience, of religion and of form of worship is inviolable) (cf. JORGE MIRANDA and PEDRO GARCIA MARQUES in JORGE MIRANDA and RUI MEDEIROS, Constituição Portuguesa Anotada, vol. I, op. cit. [here in the reprint of the 2nd ed. by Universidade Católica Editora, Lisbon, 2017], note I to Article 41, p. 647).
In fact, in terms of the evaluative weight that emerges in Articles 24, 25 and 41, the inviolability of the home, secrecy of correspondence and other means of private communication, indicated in Article 34, is, unlike the former, a less vague formulation, if you like, intrinsically more detailed and therefore distinct from them, generating an inviolability (which is, as some commentators put it) of principle, subject to the restrictions provided for [in the] precept [itself], specifically in paragraphs 2, 3 and 4 (see GOMES CANOTILHO and VITAL MOREIRA, Constituição da República Portuguesa Anotada, vol. I, 4th ed., Coimbra Editora, Coimbra, 2007, pp. 539-540; italics added).
In this regard distinguishing the force of the expression inviolability in Article 34 and Article 24 of the
Constitution GERMANO MARQUES DA SILVA and FERNANDO SÁ mention, in the notes to the first of those Articles: [the] Constitution acknowledges other degrees of inviolability concerning fundamental rights: one need only think of the inviolability of human life, which ranks higher than the inviolability of the home or of communications because it does not allow, for example, such a fundamental right to be withdrawn in the event of a siege or emergency (Article 19(6)), unlike what happens with the right concerning the home or the secrecy of communications (see cited authors, in JORGE MIRANDA and RUI MEDEIROS, Constituição Portuguesa Anotada, vol. I [reprint], op. cit., pp. 549-550).
Thus, looking at the idiosyncratic expressive force of the statement contained in Article 24(1), we may say citing RUI MEDEIROS and JORGE PEREIRA DA SILVA:
The Portuguese Constitution does not limit itself, unlike other fundamental texts and the UDHR itself, to saying that everyone has the right to life, but rather affirms, in a much stronger and more expressive normative formulation, that human life is inviolable. Article 24 plays an entirely unique role among fundamental rights. A member of the exclusive club of rights that cannot be suspended (Article 19(6)), the right to life is enshrined in Article 24(1) not only in its purely subjective dimension, as the first of the fundamental rights more than a right, freedom and guarantee, it forms the basic foundation of all the other fundamental rights but as an objective value and a fundamental principle of a rule of law founded on the dignity of the human person (Article 1) (Cited authors, in JORGE MIRANDA and RUI MEDEIROS, Constituição Portuguesa Anotada, vol. I [Coimbra Editora ed.], op. cit., note I to Article 24, p. 501; italics in the original; along the same lines, that the right to life is the first of the fundamental rights and, logically, a priority right, since it is a condition for all other fundamental rights, see GOMES CANOTILHO and VITAL MOREIRA, Constituição da República Portuguesa Anotada, vol. I, 4th ed., Coimbra Editora, Coimbra, 2007, note I to Article 24, p. 446).
25. The immutability of the text enshrining the right to life in the Portuguese Constitution the entire text ever since the initial version of 1976, has been highlighted before. This fact lends particular interpretative relevance to the genesis of this exact form, endowed with appreciable singularity, enshrining the right to life, which is quite different from that used in the Constitution of 1933 (which stated, in the respective Article 8(1), that an individual right and guarantee for Portuguese citizens was: [the] right to life and personal integrity). Recalling the circumstances of the 1976 enactment of this text may contribute towards understanding the normative message it expresses.
The text approved by the constituents originated in the draft Constitution presented by the Portuguese Communist Party in early July 1975 (Official Gazette of the Constituent Assembly, Supplement to no. 16, 24 July 1975, p. 42):
Article 30 (Right to life)
1. Human life is inviolable.
2. There is no death penalty.
This text was carried forward, almost in its entirety, to the final text. The constituent MP JOSÉ RIBEIRO E CASTRO, in a recent opinion article dated 2 February 2021, published in the online newspaper Observador, alluded to the extraordinary force of this formulation, compared to the other text proposals presented at the time:
[The] majority of the draft constitutions in 1975 contained customary legal formulations for protecting the right to life. The CDS draft stated: The right to life and physical integrity [...] are the individual rights and freedoms of Portuguese citizens. The PS one read: The right to life and physical integrity is guaranteed. The MDP/CDE and UDP had nothing to say on the matter. The PPD one stated: The Right to life and personal integrity is inviolable. It was the PCP that proposed the enshrined proclamation: Human life is inviolable.
The individualisation in Article 24(2) of the exclusion by the statement in no case shall there be... of the death penalty, while continuing a tradition of referencing it in the constitutional text, which dates back to the Constitution of 1911 (which constitutionalised the abolition introduced in 1867), nonetheless reinforces the statement contained in paragraph 1, removing from it, and thereby enhancing the degree of protection, what in the biblical genesis of the commandment thou shalt not kill, as it evolved in Judeo-Christian thinking, was construed, along with war, as an exception to the moral imperative not to kill (cf. NAHUM M. SARNA, The JPS Torah Commentary, Exodus, The Jewish Publication Society, Philadelphia, Jerusalem, 1991, p. 113; The Christian Judge and the Taint of Blood: The Theology of Killing in War and Law, JAMES Q. WHITMAN, The Origins of Reasonable Doubt. Theological Roots of the Criminal Trial, Yale University Press, New Haven, London, 2008, pp. 28-49). And the death penalty retains for those who accept it in any case a paradoxical meaning when set against the affirmed inviolability of human life.
In this context, it is worth noting, in the exegesis of Article 24 (then Article 25), that a greater proximity to the historical legislator (to the historical context of the construction of this provision) led GOMES CANOTILHO and VITAL MOREIRA, in the 1st edition of their Constituição Anotada [Annotated Constitution], to affirm the absolute nature of the value of the right to life: [the] value of the right to life and the absolute nature of constitutional protection is reflected in the very fact that it prevails even in the face of the constitutional suspension of fundamental rights, in the event of a state of siege or state of emergency (op. cit., Coimbra, 1978, p. 92). Thus, following the issue throughout the evolution of this reference work whose analysis allows an interesting diachronic perspective of the legal and constitutional treatment of the topic , in the respective 2nd edition, now considering the issue of suicide, with the authors questioning the reference to the duty to protect life in relation to this, the same idea of an absolute protection, associated with the supreme nature of the right is reaffirmed: [in] conferring absolute protection on it, admitting no exception, the Constitution elevated the right to life to an enhanced fundamental right (op. cit., Coimbra, 1984, p. 190). This idea is repeated, even more emphatically, in the 3rd edition, where euthanasia is also considered: legally and constitutionally there is no right to active euthanasia, construed as the right to demand that a third party provoke death to alleviate suffering (sweet death), because respect for the life of others cannot exempt pity killers (op. cit., Coimbra, 1993, pp. 174-175).
It is important to mention, as a culmination of the path taken by the work under analysis, the description of the right to life, in a context closer to the present one, in the 4th edition: [i]t is not [ ] merely a logical prius: the right to life is materially and evaluatively the most important good (residing, therefore, in ontological terms in having and being life, and not only in the ethical/deontological realm of values or in the legal axiological domain of principles) in the catalogue of fundamental rights and in the legal and constitutional order as a whole. It is precisely for this reason that the right to life poses legal issues of crucial importance in human communities (op. cit., note I to Article 24, p. 447). Furthermore, the non-existence of a right to active euthanasia is reiterated:
Legally and constitutionally there is no right to active euthanasia, construed as the right to demand that a third party provoke death to alleviate suffering (sweet death), because respect for the life of others cannot exempt pity killers (cf., however, the specificities of the crime of homicide at the victims request defined in Art. 134 of the Criminal Code). With regard to orthothanasia (indirect active euthanasia) and passive euthanasia the right to oppose the artificial prolongation of ones life in the case of incurable illness (living will, right to live death), they may justify special rules regarding the organisation of care and monitoring of terminal illnesses (right to die with dignity), but doctors or health personnel are not given any right to abstain from caring for patients (cf. the European Parliament Resolution on the European Charter of Patients Rights of 19/01/84). The Constitution does not recognise any life with no life value, nor does it guarantee decisions about life itself (see op. cit., note VII to Article 24, p. 450).
26. The peculiar feature of the right to life is that it generally [presents itself] as an all-or-nothing right in the sense that partial attacks on life are not conceivable without the loss of that very life which is averse to attempts at practical concordance and whose substance tends to coincide with its core essence (RUI MEDEIROS and JORGE PEREIRA DA SILVA, Constituição..., op. cit., note IV to Article 24, p. 502). However, this protection, being especially enhanced and even close to the idea of absoluteness, does not exactly have this meaning absolute, as far as a right is concerned, being understood as the idea, rooted in the Latin etymology of the word (solutus), of its liberation from conditions, exceptions or any margins of discretion, expressing an exact coincidence, or more correctly a total overlapping, between the content of the right and the extent of the protection that it confers.
It is therefore understandable that the constitutionally based option of liberating a right from any constraints or margins of discretion the option for the absoluteness of its inviolability is expressed, in a language with the richness and precision of German, by the expression unantastbar (used in Article 1. (1) of the Grundgesetz, with respect to human dignity: Die Würde des Menschen ist unantastbar), with the more precise meaning of intangibility, while the affirmation, in that linguistic context, of the inviolability of a right is expressed as is the case in Article 2. (2) of the same law through the expression unverletzlich, which corresponds exactly to inviolability (the significance of this linguistic differentiation in the Grundgesetz is explained by DIETER GRIMM, Dignity in a Legal Context: Dignity as an Absolute Right in CHRISTOPHER MCCRUDDEN (ed.), Understanding Human Dignity, Oxford University Press, Oxford, 2014, p. 387).
Of course, intangibility, referring to a very open context of meaning (dignity), with deep theological and philosophical roots and marked this is the historical context of the Grundgesetz by highly traumatic historical events, leads to appreciable margins of vagueness that make it less operative in contexts of legal and constitutional discussion, where it can consistently be invoked on opposing sides of the debate ([p]erhaps dignity means too many different and competing things to have a clear role. People who are in favour of euthanasia speak of death with dignity, while their traditionalist opponents argue that it is precisely dignity that precludes the taking of one's own life; see ALAN MITTLEMAN, Two or Three Concepts of Dignity in JRB, Summer, 2013). As is underlined by RONALD DWORKIN when referring to the same issue: [d]ignity which means respecting the inherent value of our own lives is at the heart of both arguments (see cited author, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom, Vintage Books, New York, 1994, p. 238). This trait reflects, however, the fundamental force of the idea of human dignity elevated to the category of principle, which demands a specialised scope, a metaprinciple, specially adapted to reflective inferences (in this regard, JORGE MIRANDA and ANTÓNIO CORTÊS in JORGE MIRANDA and RUI MEDEIROS, Constituição , op. cit. [reprint], note to Article 1, p. 65).
In the case of Article 24(1) of the Constitution, the superior status conferred by the emphatic affirmation of the inviolability of human life requires a level of protection that is congruent with the strong axiological identity that characterises it. This does not, however, exclude in any way the consideration of weighting factors that allow a response, in the expression of this inviolability, to special in this case very special circumstances that must be effectively considered in consistently challenging contexts in which assumptions of absoluteness the liberation from any conditions or spheres of consideration are tested to the limit, requiring responses that do not always accommodate the projection of a rigidity taken to the paroxysm.
In fact, as has been stressed, the unique position that the right to life occupies among other rights also creates difficulties that cannot be resolved merely by affirming the direct applicability of Article 24, associated with the (almost naïve) belief in the enforceability of the constitutional norm in question (cf. RUI MEDEIROS and JORGE PEREIRA DA SILVA, Constituição , op. cit., note IV to Article 24, p. 502). This right, beyond its subjective dimension the right not to be killed, not to be deprived of life , has an associated objective content protecting the good of human life [which] unavoidably implies recognising the duty to protect the right to life, in terms of both substance and scope, and with respect to the ways and means of fulfilling this duty (see GOMES CANOTILHO and VITAL MOREIRA, Constituição..., op. cit., notes I and III to Article 24, p. 447). It is when fulfilling this duty which is to promote and protect in the various areas of human activity, that the need for compromise and practical concordance often arises, justifying a more or less broad legislative discretion (in this regard, RUI MEDEIROS and JORGE PEREIRA DA SILVA, ibidem; GOMES CANOTILHO and VITAL MOREIRA, in the place cited, also refer to the delicate issues related to personal autonomy, giving the examples of the right to the body, suicide, endangering life, consent to medical treatment and the freedom to die). Euthanasia and physician-assisted suicide are two problematic areas where such tension becomes particularly visible and acute, as evidenced by comparative law experiences and case law, whether in constitutional courts or international tribunals.
27. Indeed, regardless of how expressive the wording may be, the truth is that the right to life is universally recognised from a legal standpoint. But this universality does not prevent very different solutions from being adopted with regard to medically assisted death.
In terms of comparative law, three major trends can be found: i) decriminalisation and express regulation of active euthanasia and/or assisted suicide (Netherlands, Belgium, Luxembourg, Canada, some states in the United States of America, Colombia, the Australian State of Victoria, and New Zealand); ii) tolerance of assisted suicide, without express legal regulation (Germany, Italy, Switzerland); and iii) prohibition of active euthanasia and assisted suicide (e.g., France and the United Kingdom, among many others)
27.1. On the European continent, only the three Benelux states currently have legislation decriminalising and regulating active euthanasia and/or assisted suicide. The legislation was established in 2002 (in the Netherlands and Belgium) and in 2009 (in Luxembourg). In Spain, on 17 December 2020, the Congress of Deputies approved a draft organic law on the regulation of euthanasia, which is currently under consideration in the Senate, contemplating the legalisation and regulation of (active and direct) euthanasia and assisted suicide, under the name provision of aid to die configured as a right to request and receive such provision.
In April 2002, the Netherlands became the first European state to decriminalise and regulate active euthanasia and assisted suicide, following the entry into force of the Termination of Life on Request and Assisted Suicide (Review Procedure) Act, passed in April 2001. This law introduced amendments to the articles of the Criminal Code that criminalised homicide upon request and aiding suicide (Articles 293 and 294), decriminalising such conduct when practised by a doctor in accordance with the regime provided for therein.
The passing of the law in question was the culmination of a long debate that had been raging for several decades in Dutch society, particularly driven by a number of media cases discussed in the case law. In fact, since the early 1970s, Dutch courts had been open to situations of active euthanasia and assisted suicide, having first applied symbolic criminal penalties to the perpetrators of this type of crimes and then, in a second phase, excluding them from criminal liability by applying the state of necessity. To that extent, the legal decriminalisation and regulation of active euthanasia and assisted suicide did not exactly signal a turning point in the Dutch legal system, as it primarily cemented, at a regulatory level, a practice that had long been accepted in the case law.
In Belgium, as in the Netherlands, the legal system has admitted active euthanasia since the approval of the Act of 28 May 2002. The regulation of assisted dying in the Belgian legal system has seen two key moments: in May 2002, when the law was passed that began to allow active euthanasia for people of legal age, and later, in 2014, when an amendment to this law was passed to allow active euthanasia for minors with capacity for discernment. According to Article 2 of that law, and for the purposes of applying it, euthanasia is considered the act, performed by a third party, which intentionally ends the life of a person at that persons request. It should be noted that the law in question does not apply to situations of assisted suicide, although aiding suicide is not criminalised in the Belgian Criminal Code either.
In Luxembourg, active euthanasia and assisted suicide have been legally admissible since March 2009. This new measure was introduced into the Grand Duchys legal system by the Law of 16 March 2009 on euthanasia and assisted suicide, which amended the Criminal Code in order to decriminalise such conduct and enshrined the legal regime applicable to such procedures (Article 397(1)), drawing heavily on the Belgian legislation. On the same day, a law on palliative care, advance directives and end-of-life care was also approved.
Finally, the Spanish law, in the process of being approved, follows the legislative models that regulate the prerequisites for making euthanasia a legally permitted practice, subject to certain requirements and guarantees being met. This law gravitates around the concept of the provision of aid to die (cf. Article 1 thereof), which, according to the definition contained in Article 3(g), covers both the direct administration to the patient of a substance intended to cause death (active euthanasia) and the prescription or delivery of a substance that the patient self-administers to cause death (assisted suicide). The prerequisites for allowing assisted dying to occur are specifically laid down in Article 5, which stipulates that the patient must: 1) be a Spanish national or be legally resident in Spain and be of legal age, as well as capable and conscious at the time the request is made; 2) receive written information regarding their clinical file and the existing alternatives, including access to palliative care; 3) have made two voluntary requests, in writing, with an interval of at least 15 days between the two; 4) suffer from a serious and incurable illness or a serious, chronic and incapacitating condition (una enfermedad grave e incurable o un padecimiento grave, crónico e imposibilitante), certified by the advising doctor; and 5) provide informed consent before receiving aid to die.
27.2. From another perspective, it is worth mentioning the pronouncements of the European Court of Human Rights (ECtHR) on individual applications against states in this area (cf., in particular, the judgments handed down in the following cases: Pretty v. United Kingdom [ECtHR (Section IV) of 29 April 2002], Haas v. Switzerland [ECtHR (Section I) of 20 March 2011], Koch v. Germany [ECtHR (Section V) of 19 July 2012], Gross v. Switzerland [ECtHR (Section II) of 14 May 2013 and ECtHR (Grand Chamber) of 30 September 2014] and, finally, Lambert and Others v. France [ECtHR (Grand Chamber) of 5 June 2015]). This case law has paid particular attention to the interpretation and application of Articles 2 and 8 of the European Convention on Human Rights (ECHR). Article 2 guarantees the right to life, stating in its paragraph 1 that [e]veryones right to life shall be protected by law and that [n]o one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law; Article 8, in turn, enshrines the right to respect for private and family life, stating in its paragraph 1 that [e]veryone has the right to respect for his private and family life, his home and his correspondence.
From this case law exclusively concerning cases of assisted suicide and passive euthanasia (and not active euthanasia, which has not yet been assessed by this Court) the following fundamental conclusions may be drawn: i) the right to life enshrined in Article 2 of the Convention does not include the right to die, whether with the help of a third person or with the assistance of a public authority; ii) the right to respect for private life enshrined in Article 8 of the ECHR includes the right to decide by what means and at what time to end ones life, provided that one is able to decide freely on this issue and to act accordingly; iii) that right is not absolute and must be weighed against competing and conflicting interests, with particular reference to the states positive obligations to protect deriving from the right to life enshrined in Article 2 of the ECHR, insofar as these commit states to protect vulnerable persons against decisions taken by themselves which may endanger their lives; and iv) states have a wide margin of discretion in making this assessment, given that ethical, scientific and legal issues relating to the end of life are at stake and that there is no consensus among the Member States of the Council of Europe in this area.
To these cases must be added the already mentioned decisions of the Bundesverfassungsgericht and the Verfassungsgerichtshof (cf. no.15 above) which, recognising the existence in their respective legal systems of a fundamental right to a self-determined death, censured as disproportionate what they considered to be restrictive regulations on that right, apropos legal solutions criminalising certain forms of aided suicide (German case) or even criminalising such an act altogether (Austrian case). And also, although from a different perspective, since it emphasises the relative fluidity of the boundaries between passive and active euthanasia, two important rulings by the Italian Corte Costituzionale arising from the Cappato case Ordinanza 207/2018 (Cappato) and Sentenza 242/2019.
27.3. It should also be noted that other sources of international, universal and regional law exist which also refer to the right to life and the right to respect for private and family life. This is the case for sources adopted in the framework of the Council of Europe and the United Nations (UN).
Within the scope of the Council of Europe, worthy of mention is the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (usually referred to as the Oviedo Convention), signed in 1997 and entering into force in 1999 (Articles 1, 5 and 6); and the Council of Europes Parliamentary Assembly Recommendation 1418 (1999), Protection of the human rights and dignity of the terminally ill and the dying and Resolution 1859 (2012) Protecting human rights and dignity by taking into account previously expressed wishes of patients.
In terms of the UN, worthy of mention are the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) which guarantee the right to life and the right to privacy in Articles 3 and 12 and Articles 1 and 17, respectively. The UN Human Rights Committee has already had the opportunity to express its views on the legal regime of some Member States that have decriminalised euthanasia and/or assisted suicide within the framework of the periodic evaluations concerning implementation of the ICCPR. This has been the case in the Netherlands, which has been particularly alerted to the need to implement a prior control procedure before proceeding with assisted dying procedures.
28. The content of the enshrined right to life in the Portuguese Constitution human life is inviolable makes it easy to understand that that right has no negative dimension: the right to live (and therefore not to be killed) is not opposed to a right to die or to be killed (by a third party or with the support of a public authority), a right not to live or a right to choose whether or not to continue living (cf. in this regard the ECtHR (Section) Judgment of 29 April 2002, Pretty v. United Kingdom, Application No. 2346/02, §§ 39-40).
It cannot be ruled out, however, that such a right may result from the freedom of each individual to exercise self-determination, based on their own life project (cf., once again, Pretty v. United Kingdom, §§ 65 and 67, and the same Courts other case law cited below), thus imposing a limit on the states obligation to protect life under Article 24(1). As GOMES CANOTILHO and VITAL MOREIRA point out, the protection of human life, as a value in itself, regardless of its personal subjectivisation, also raises the problem of whether the duty to protect it is imposed on the individual himself (duty to live), thus denying a right to suicide [ ]. The question is whether life, as the basis and expression of human existence, is at the disposal of the individual in question (see authors cited, Constituição..., op. cit., note VII to Article 24, p. 450).
In the Portuguese legal system, the values of general freedom of action and the capacity for individual self-determination are particularly reflected in the fundamental right to the development of personality, enshrined in Article 26(1) of the Constitution, clearly inspired by the corresponding right provided for in Article 2(1) of the Grundgesetz, which, according to German doctrine and case law, comprises two different strands: the general right to personality and the general freedom of action.
Portuguese doctrine has also emphasised the dimensions of freedom and self-determination associated with this right. As GOMES CANOTILHO and VITAL MOREIRA write on the subject: as a general expression of a sphere of personal freedom, it amounts to a fundamental subjective right of the individual, guaranteeing them a right to free formation of personality or freedom of action as an autonomous subject with decision-making self-determination, and a right of personality fundamentally guaranteeing their legal/personal sphere and, in particular, the integrity of that sphere (Cited authors, Constituição , op cit., note III to Article 26, pp. 463-464). The same authors add that this rights regulatory scope of protection comprises three dimensions: 1) the free formation of personality, without state planning or imposition of personality models; 2) the protection of freedom of action according to ones life project, vocation and personal capacities; and 3) the protection of individual integrity with a view to guaranteeing the legal/personal sphere in the development process (ibidem).
In a similar vein, RUI MEDEIROS and ANTÓNIO CORTÊS point out that this right includes a comprehensive protection of personality as the substratum of individuality (in its various aspects) and a protection of freedom (Cited authors, Constituição..., op cit., note XIV to Article 26, p. 614). These authors also point out the interconnection between the right in question and other constitutionally protected rights and interests, stating that respect for human dignity, democratic pluralism, personal identity and the development of individual personality implies the recognition of a legitimate space of freedom and personal fulfilment free from legal constraints (ibidem).
The aforementioned general freedom of action essentially translates to an area of autonomy that confers on each person the freedom to direct their own existence in accordance with the specific characteristics of their personality and life project. As this Court has already stressed with regard to such a dimension, it consists of a freedom to exteriorise ones personality or to act in accordance with ones own life project and personal vocation and capacities (Ruling No. 225/2018), ensuring each persons freedom to define their own life plan (Ruling No. 288/98). The capacity for self-determination, on the other hand, essentially translates to an area of decision-making autonomy that gives each person the freedom to make choices relevant to their life as a rational being and the onus to take responsibility for them. This aspect has also been emphasised in constitutional case law and doctrine, which describe it as the freedom of action needed for a self-determined subject to be able to shape his/her own identity (Ruling No. 225/2018), or even as freedom of action as an autonomous subject with decision-making self-determination (see GOMES CANOTILHO and VITAL MOREIRA, Constituição..., op. cit., note III to Article 26, p. 463).
These two dimensions of the right to develop personality give each person the power to make crucial decisions on how they wish to live their own life and, inherently, how they do not wish to continue living it. The irreducible space of individual autonomy to direct their own existence in accordance with the specific characteristics of their personality and their life project, arising from the general freedom of action, could therefore integrate an end-of-life project outlined according to the perceptions and values each person has with respect to the meaning of their own existence. In turn, the freedom to make choices relevant to ones life as a being endowed with rationality and responsibility, which is a characteristic of autonomous decision-making, could also protect a persons decision to end their own life, provided that it is taken in a capable, free, conscious and informed manner.
This is in line with the ECtHR understanding that an individuals right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of Article 8 of the Convention (see [Section] Judgment of 20 January 2011, Haas v. Switzerland, Application No. 31322/07, § 51; confirming this case law, see the [Section] Judgments of 19 July 2012, Koch v. Germany, Application No. 497/09, § 52; and 14 May 2013, Gross v. Switzerland, Application No. 67810/10, § 59).
However, in this case, it is unnecessary to adopt a position on such a matter, since what is at issue is not the isolated conduct of someone wishing to end their own life, but the assistance of health professionals, within a framework of action regulated and controlled by the State, in hastening the death of a person at that persons request. Now, this voluntary collaboration of third parties in performing or assisting in the act of hastening death raises problems of a different nature, which transcend the personal sphere of those wishing to die and spread to the social sphere, with implications on the (state) duty to protect life. And it is the structure of this that must first be analysed, due to the fundamental importance of the good in question in relation to all other fundamental rights.
What is certain is that in Portugal attempted suicide is not punishable and that even medical and surgical interventions and treatments carried out in accordance with the lege artis with a view to preventing, diagnosing, curbing or alleviating physical illness, suffering, injury or fatigue can only be carried out with the patients consent (cf. Articles 150 and 156 of the Criminal Code). In any case, the persistence hitherto not questioned as to its constitutional legitimacy of the criminal types Homicide at the victims request and Incitement or assistance to suicide (Articles 134 and 135 of the Criminal Code), even after the approval of Decree No. 109/XIV (cf. the respective Article 27), is a strong indication of the lack of recognition of a fundamental right based on the self-determination of the individual as regards the disposal of their own life, for reasons of defending the good of life and the very freedom and autonomy of the person wishing to die. In such a framework, the act of suicide is a mere agere licaere, a de facto act (expression of the simple individual possibility to act) that is legally irrelevant and therefore also not punishable consisting in the disposal of a good that is within the individuals sphere of action, and not a legally defined and protected freedom.
However, in the absence of recognition of this hypothetical fundamental right to a self-determined death, following, in the wake of the ECtHR, the aforementioned Bundesverfassungsgericht and Verfassungsgerichtshof case law (cf. no. 15 above), the complex issues of material omissions and the right or duty of third parties to intervene remain in situations where a suicidal person or hunger-striking activist loses control of the situation control over the act after the self-destructive action has already begun (for example, due to having become unconscious in the meantime).
29. The aforementioned difference, which goes from the social intranscendence of an act by a person who, for whatever reason, kills him/herself, and the transition to the level of social organisation was well underlined by ZAGREBELSKY (former President of the Italian Corte Costituzionale), in response to the question of whether the laws silence in relation to attempted suicide when set against the punishability of assisting suicide would not be contradictory, since in both cases the same scenario is at issue, i.e., suicide:
When someone kills him/herself, that is considered an act, a mere act that [ ] remains within their personal legal sphere. However, if another person comes into play, it transforms the situation into a social act, even if it involves only two people: the person who asks to die and the person who aids them. Even more so if an organisation, be it public or private, such as in Switzerland or the Netherlands, enters this process. [ ] If most suicide cases stem from injustice, depression or loneliness, suicide, as a social act, raises another question. Can society say, okay, you can get out of the way [va bene, togliti di mezzo], and we even help you do it? Is that not too easy? Is the states duty not the opposite: to give hope to all? The first right of every individual is to be able to live a meaningful life, and society has the duty to create the conditions. [ ] Suicide as an individual act is one thing; socially organised suicide is another. Society, with its structures, has the duty to care, if possible; if not possible, it at least has the duty to alleviate suffering (Cited author, Il diritto di morire non esiste in Il Fatto Quotidiano di Silvia Truzzi, 14 December 2011).
In the same vein, of affirming an essential difference between suicide and assistance to suicide,
COSTA ANDRADE states:
It is precisely the identification of the human life (of another person) as a protected legal good that lends and delimits indispensable material legitimisation to the criminalisation of Incitement or assistance to suicide. A legitimisation that some intend to question or even undermine, based on the irrelevance or indifference of suicide to the legal/criminal order. Except that this indifference to suicide does not necessarily translate to Incitement or assistance to suicide. These are in fact different actions, with different meanings, perspectives and frames of reference. Suicide exhausts its meaning in the self-referential and autopoietic behaviour of the individual, not belonging to the social system [ ]. Assisting suicide, on the other hand, takes on an irreducible systemic and social value: regardless of the singularity of its course, this action projects itself onto the life of another person. The involvement of third parties in suicide, whether inciting or assisting it, produces an intersubjective relationship which is a prerequisite of every illicit act, while also becoming socially devalued (Silva Dias, Crimes contra a vida, p. 67). In other words, the involvement of the third party transforms the act into one that is relevant to the social system, being as such, exposed to its codes and values. This being so, since those punished for inciting or assisting suicide are not punished as accessories to the offence of a third party, but for their own offence, the well-known and recurrent objection that the punishment of aiding suicide criminalises participation in a principal act that is not punishable is disproved (Kubiciel, JZ 2009 608 [ ]). Therefore, the objection of those who stigmatise criminalisation as a mere reflection of taboo and moralism cannot be deemed well-founded [ ] (Cited author, Comentário Conimbricense, op. cit., Comentário ao artigo 135.º, § 11, pp. 138-139).
From a legal point of view, the social relevance or projection of assisting suicide has, on the flip side, its subjection to social concerns and to the measures taken to protect and promote the values enshrined in the constitutional order.
30. The constitutional uniqueness of this subjective dimension of the right to life enshrined in Article 24(1) of the Constitution derives from considerations of a literal and historical nature and also of a legal and systemic nature the right to life, it should be remembered, is the first of the fundamental rights and forms the basic foundation of all the other fundamental rights (see RUI MEDEIROS and JORGE PEREIRA DA SILVA, op. cit. note I, p. 501) or is a priority right, since it is a condition for all other fundamental rights; the right to life is materially and evaluatively the most important good [ ] in the catalogue of fundamental rights and in the legal and constitutional order as a whole (see GOMES CANOTILHO and VITAL MOREIRA, Constituição , op. cit., note I to Article 24, pp. 446-447) giving it an objective value of no less importance, as a fundamental principle of a rule of law founded on the dignity of the human person (Article 1) (see the former authors, ibidem; cf. also nos. 24, 25 and 26 above).
Such a right thus necessarily implies recognition of a binding duty on the part of the State, and in particular the legislator, to protect and promote human life. In relation to this, a democratic state based on the rule of law is not neutral and cannot be indifferent, at the risk of negating one of its foundations and compromising its capacity to respect and enforce respect, as well as to guarantee the effective implementation of the [other] fundamental rights and freedoms (cf. Article 2 of the Constitution).
Moreover, and without prejudice to the different emphasis and the various ways in which these premises may be developed according to the different normative contexts, the ECtHR has also recognised them and duly stressed their importance. Thus, for example, in the cited Haas v. Switzerland case, it was held that the ECHR must be read as a whole, with the result that it is necessary to consider, also in the context of a possible violation of Article 8, Article 2 of the Convention, which creates for the authorities a duty to protect vulnerable persons, even against actions by which they endanger their own lives, since this latter Article obliges the national authorities to prevent an individual from taking his or her own life if the decision has not been taken freely and with full understanding of what is involved (§ 54; in the same vein, see the [Grand Chamber] Judgment of 5 June 2015, Lambert and Others v. France, Application No. 46043/14, §§ 136 et seq., in particular § 142; and (Section) Judgment of 22 November 2016, Hiller v. Austria, Application No. 1967/14, § 49). In the Lambert case, the ECtHR also stated the following:
117. The Court reiterates that the first sentence of Article 2 [ everyones right to life shall be protected by law ], which ranks as one of the most fundamental provisions in the Convention and enshrines one of the basic values of the democratic societies making up the Council of Europe [ ], enjoins the State not only to refrain from the intentional taking of life (negative obligations), but also to take appropriate steps to safeguard the lives of those within its jurisdiction (positive obligations).
[ ]
140. Article 2 requires the State to take appropriate steps to safeguard the lives of those within its jurisdiction; in the public-health sphere, these positive obligations require States to make regulations compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients lives [ ]
It is well-known, in any case, that, in general, there is no confusion between a right initially directed at the state (without prejudice to the fact that, under Article 18(1) of the Constitution, it may also be directed against private entities) and the States duty to protect such a right. This is also the case with regard to the right to life, despite its importance (cf. end of no. 26 above). The right to life, in its dimension as the right not to be killed, prohibits specific behaviours that are harmful to human life. The duty to protect life, on the other hand, imposes actions that are not predetermined, but have a sense or purpose of safeguarding the good of life. Hence, the regime protecting human life, as a constitutionally protected good, [is] not the same as the right to life, as a fundamental individual right, when it collides with other constitutionally protected rights or interests (see GOMES CANOTILHO and VITAL MOREIRA, Constituição..., op. cit., note VI to Article 24, p. 449).
In fact, it is up to the legislator to devise forms of protection and to establish them in law, exercising a more or less broad legislative discretion. This is acknowledged by RUI MEDEIROS and JORGE PEREIRA DA SILVA: in fulfilling these duties to act [ duties aimed at promoting and protecting the good of life in the most diverse areas of human activity ], and despite their permanent commitment to life, the criminal, civil and administrative legislators are never deprived of margins of discretion, which may at times be quite broad (see Constituição , op. cit., note IV to Article 24, p. 502).
Hence, the possibilities of controlling possible protection failings are also limited, being generally limited to verifying the omission of any protection measures or ascertaining the manifest inadequacy of those that have been adopted or their total insufficiency in achieving the protection objective in question. In any case, it is also clear that the degree of protection required increases not only according to the importance of the good being protected, but also the inferior constitutional value of the opposing interest, thereby justifying such protection. If human life, even from the point of view of the individual, is not a good like any other, since it is a condition for all other goods and even the ontological presupposition of human dignity, this cannot fail to have consequences when evaluating the limits imposed on its own protection through the consideration of other goods. Moreover, this consideration justifies an analysis of the problem of practical concordance from the point of view of the objective value of human life, looking at the interests or goods that oppose it as (more or less) broad limits. We therefore agree with RUI MEDEIROS and JORGE PEREIRA DA SILVA, when they state that, although the right to life is not an unlimited or absolute right, immune to complicated collisions with other rights [ ], it is nonetheless a right that a priori enjoys an extremely advantageous position in the flexible and non-hierarchical order of constitutional axiology (see Constituição , op. cit., note IV to Article 24, p. 502).
31. In Decree No. 109/XIV, the exemption from punishability of hastened medically assisted death, provided that certain material conditions (or criteria) are met and the procedure set out therein is observed, coexists with the continued punishability of death at the victims request and assisting suicide (cf. Article 27 of the Decree, insofar as it adds a new paragraph to Articles 134 and 135 of the Criminal Code). This option demonstrates that the end pursued by the legislator leaving aside the service aspect related to the possibility of hastened medically assisted death within the National Health Service is twofold: i) to create conditions under which people in certain situations of intolerable suffering can, if they so wish, bring about their early death in safety through the voluntary cooperation of doctors and other health professionals; ii) to provide health professionals who have no conscientious objection in hastening the death of a person in certain situations of intolerable suffering, at that persons request, with the certainty that they will not be punished.
In effect, without a norm such as that contained in Article 2(1) of Decree No. 109/XIV and the others that directly result from it, like the amendments to the Criminal Code the practices of direct active euthanasia or assisted suicide with respect to for example, terminally ill people in extreme states of great suffering would only be free from criminal punishment if it was specifically recognised that the agent acted in an (excusable) state of necessity, thereby justifying an exemption from punishment (cf. Article 35(2) of the Criminal Code). It should be remembered that this was the path followed in the Netherlands until the approval, in 2001, of legislation decriminalising and regulating active euthanasia and assisted suicide (cf. no. 27.1 above). However, as is readily understandable in such circumstances, the path towards non-punishment of the agent is feasible, but it is fraught with difficulties along the way and, as a result, replete with uncertainties as to the final result. [ In such situations the path is] extremely uncertain as regards the result, which makes it impossible for doctors, especially those who deal with end-of-life situations on a daily basis, to find clear and certain support in the penal norms allowing them to shape their actions (cf. RUI MEDEIROS and JORGE PEREIRA DA SILVA, Constituição , op. cit., note XXX to Article 24, p. 537).
But this uncertainty also has a negative impact on patients themselves, insofar as they are deprived, often in extreme states of great physical suffering and existential anguish, of a choice which, from their point of view, could set them free. For them, the freedom to die with the professional and qualified help of a third party may be the last redoubt in their personal autonomy, the final opportunity to make a decision that is central to their existence. And, one of the underlying objectives of the norm contained in Article 2(1) of the Decree is clearly that of, under controlled conditions materially justified from the point of view of the person suffering, giving that person the freedom to choose to die with the assistance considering here the monitored and supervised self-administration or hetero-administration of lethal drugs, at their own request of qualified third parties, without subjecting them to criminal prosecution.
Assuming that hastened death should not be trivialised or normalised therefore maintaining the criminalisation of death upon request and assisted suicide in the majority of cases but also recognising that there are certain situations in which it can be justified and should now be excused the legislator, by means of the aforementioned Article 2(1), sought to exclude it from punishability in situations that appeared to be more gravely opposed to the individual autonomy of the person suffering, as regards making and implementing a decision that is central to the existence of any human being and, consequently, also relevant to their dignity as an individual. In other words, the author of Decree No. 109/XIV opted to try and generalise case-by-case solutions deemed fair and reasonable, by regulating them normatively (without prejudice to the fact that, even beyond the material limits provided for in Article 2(1), it remains possible to invoke justifications and exculpatory reasons in cases not envisaged).
32. The fact is that the implementation of this personal autonomy recognised by the legislator implies the aforementioned (voluntary) collaboration of third parties. In fact, a decisive aspect of such recognition consists precisely in not subjecting the third party who is willing to help another die regardless of the specific form that assistance takes: mere aid or carrying out the act that causes death to criminal prosecution and punishment, which, were it not for the exemption clause, would have occurred. In fact, we are dealing with situations in which it is only by means of such an exemption that it is possible to ensure an effective choice for those who wish to decide how and when their lives might end.
But the collaboration of a third party in the termination of somebodys life is problematic, insofar as it converts that termination into the result of a social interaction; it is no longer a question of the individual action of the person putting an end to their own life (cf. no. 29 above). That termination of life, therefore, attains legal significance and conflicts with the inalienability and inviolability of human life the objective dimension of the right to life enshrined in Article 24(1) of the Constitution and the source of the States duty to protect this legal good. It is recalled that the involvement of the third party transforms the act into one that is relevant to the social system, being as such, exposed to its codes and values (see COSTA ANDRADE op. cit. in no. 29 above), which, in the case of Portugal, and as a tribute to the inviolability of human life, imposes, as a rule, the punishment of the third party for their own offences (specifically: homicide at the victim's request and assisting suicide).
However, the author of Decree No. 109/XIV decided to exempt the cases envisaged in the norm contained in Article 2(1) from such punitive rules. Aware of the tension between the duty to protect life and the respect for personal autonomy in situations of extreme suffering, this option is based on a conception of the individual that is proper of a democratic, secular and plural society from the ethical, moral and philosophical points of view. According to such a conception, the right to live cannot become a duty to live under any circumstances. The opposite would be incompatible with the notion of a human/person, endowed with a dignity of their own, who is a self-conscious and free, self-determined and self-responsible subject, upon which the Portuguese constitutional order is based. This is because, as RUI MEDEIROS and JORGE PEREIRA DA SILVA point out, the absoluteness of life, expressed in the indiscriminate criminalisation of all euthanasic conduct, will inevitably result in suppressing the autonomy of each human being to make and implement the decisions most central to their own existence. The fact that a fundamental right such as the right to life is a conditio sine qua non of all other rights does not necessarily imply its permanent axiological superiority over other rights [ ] (Cited authors, Constituição , op. cit., note XXXI to Article 24, p. 540).
Along this same line of an openness to safeguarding the capacity for self-determination inherent in the human dignity of somebody who is suffering, i.e., who is in a position of vulnerability, the Italian Corte Costituzionale has held that if a patient is considered capable of making the decision to end their own existence by ceasing life-supporting treatment, it would make no sense for them to be subject to protection against their own will, when that decision depends on aid from third parties in order to provide an alternative that the patient considers more dignified compared with ceasing such treatment. Hence the conclusion that an absolute ban on assisted suicide ends up limiting the freedom of self-determination of sick persons in choosing treatments, including those intended to free them from suffering [ ] by, in the final analysis, imposing upon them one single way to take their leave of life. This limitation cannot be assumed to be intended to protect another constitutionally relevant interest, and thus results in the violation of the principle of human dignity (see Ordinanza no. 207/2018, of 24 October 2018, no. 9; subsequently confirmed by Sentenza no. 242/2019, of 25 September 2019, no. 2.3, in fine).
A persons vulnerability arising from the state of great suffering in which they find themselves may create tension with respect to Article 24(1) of the Constitution, owing to the free and conscious will not to want to continue living in such circumstances. And the absolute and unequivocal protection of human life does not permit a satisfactory response to such tension, since it tends to sacrifice individual autonomy, which runs against the dignity of the person in suffering, converting their right to live into a duty of painful compliance. For this very reason, the democratic legislator is not prevented, on absolute or definitive constitutional grounds, from regulating hastened medically assisted death.
33. However, in shaping such regulation, the legislator must observe limits, namely those arising from the duties to protect the fundamental rights at stake in the case of hastened medically assisted death at a persons request.
In addition to safeguarding the voluntary nature of third-party collaboration, especially the possibility of a third party invoking conscientious objection, it is also necessary to protect the autonomy and life of the person wishing to hasten their death. They are in a vulnerable position, which is all the more reason why they must be defended against rash actions or actions determined by social, family or other pressures. What is at stake is a decision whose implementation has a definitive and irreversible result, so it should only be considered if there are sufficient guarantees that it is a genuine expression of the informed self-determination of the person making it. It is within the framework of defining these guarantees that the objective importance of the good of life becomes relevant.
Indeed, the State, in its various institutional and functional guises, cannot be neutral where human life is concerned: it must protect and promote it. In the case of access to medically assisted death, this attempt at protection must begin by considering the vulnerability and suffering of those opting for such a practice. Moreover, from a constitutional point of view, voluntary death is not a satisfactory solution, let alone a normal one, and should therefore not be favoured. What should rather be promoted is life and the quality thereof, until the very end. It follows that, based on the objective dimension of the right to life enshrined in Article 24(1) of the Constitution, there is an obligation to adopt a legal system of protection that is geared towards life.
Regardless of whether the right to the free development of personality, as per Article 26(1) of the Constitution, constitutes, in view of its necessary connection with the importance and consequent enhanced protection afforded to human life under Article 24(1) of the same Constitution (cf. nos. 24, 25 and 26 above), the source of a hypothetical right to a self-determined death, in line with the ECtHR Haas case law or, perhaps even more radically, in line with the decision of the Bundesverfassungsgericht (judgment of 26 February 2020) or the Verfassungsgerichtshof (judgment of 11 December 2020), what is certain is that in the Portuguese constitutional order, third-party assistance in death, even if self-determined, does not amount to a positive constitutional interest, except to the extent that the dignity of the person intending to (be assisted to) die is at stake, namely their actions as an individual responsible for their own destiny in a moment already close to the end. These are cases in which an absolute prohibition of hastened death with third-party support would reduce a person wishing to die, but unable to do so unaided, to a mere object of sincerely unwanted treatment or, alternatively, condemn them to senseless suffering in the face of the inevitable outcome.
As a guiding principle a directive for resolving these situations, it will be said that it is not about a choice between life and death, but, more strictly, a choice between different ways of dying: namely, a long and painful dying process versus a quick and peaceful death. In keeping with this, and taking into account the senseless suffering at least from the perspective of the sufferer in the face of a certain outcome, provided one can verify the prerequisite of a decision made consciously, truly free from all pressures, having previously been informed of the diagnosis, prognosis and alternatives available in the area of therapy or within the scope of palliative care, it becomes irrelevant who has the control over the act at the final moment, or in other words, to use the words of Decree No. 109/XIV, whether the act of hastening death is accomplished through the (assisted) self-administration or hetero-administration of lethal drugs.
Therefore, the duty to protect the life (as well as autonomy) of those wishing to hasten their death because they are ill, in a state of great suffering and with no prospect of recovery, requires strict discipline as to the situations the typical cases that justify, according to the legislative option, access to medically assisted death and robust and adequate procedural guarantees to safeguard the freedom and awareness of the patient and also to ensure the specific verification of the cases envisaged. Only in this way can the requirements of clarity and legal certainty inherent in a democratic state based on the rule of law be met, guaranteeing that hastened medically assisted death is contained within the limits that constitutionally justify it, given the duty of protection arising from the inviolability of human life: the safeguarding of the core of autonomy inherent in the dignity of each person, as an individual, i.e., a self-determined and self-responsible being.
The situations in which hastened medically assisted death is possible must therefore be clear, foreseeable and controllable from the moment such a practice is legally established, and the procedure must ensure the controllable determinability of the inevitable conceptual vagueness. It is the legislators responsibility to prevent the possibility of undesirable and unforeseen slippery slopes.
The merit of the legal protection system should therefore be subject to a comprehensive assessment, considering the possibilities of interaction between the material circumstances surrounding the patient and their condition and the procedure, in its clinical and administrative aspects. It should not be overlooked that the latter, in addition to its own purposes, may also play a role in compensating for shortcomings in the former.
E) The insufficient regulatory specificity of the concepts describing the criteria for accessing medically assisted death, called into question by the requester
in light of the principle of criminal legality
34. The specific defects pointed out by the requester in relation to Decree No. 109/XIV relate to the lack of definition, insufficient specificity or vagueness of the concepts or verbal formulations used to define the hypotheses in which medically assisted death is not punishable (cf. request, points 6 to 9, as well as no. 10 above) which would result in it [being] for the clinicians, within the scope of the procedure, to decide whether the prerequisites for permitting hastened medically assisted death are met, this then being verified and confirmed by the Verification and Assessment Committee (request, point 11; see also points 6, 7 and 10). This vagueness, according to the requester, is likely to conflict with the principles of legality and the vagueness doctrine, enshrined in Article 29(1) of the Constitution; and the resulting delegation of the powers to interpret these concepts, which the legislator would have to specify, would be prohibited by Article 112(5) of the Constitution.
35. Firstly, it is important to remember that non-punishable hastened medically assisted death, as envisaged under Article 2(1) of the aforementioned Decree may only take place following a formal clinical and legal procedure involving the CVA, which has authorising powers. A favourable opinion from the latter basically amounts to a permissive authorisation which, as such, enables the patients decision to be implemented (cf. Articles 7(4) and (8)). The right to hasten death pre-exists under the conditions set out in the aforementioned Article 2(1); it is not conferred by the aforementioned opinion (which does not, therefore, amount to a licence to kill). Thus, if the conditions laid down in that precept are not met, the opinions all of them, including that of the CVA cannot be favourable; otherwise, they must be favourable. With a favourable opinion from the CVA, health professionals who effectively hasten or collaborate in hastening a persons death can no longer be criminally prosecuted on that basis alone, unless they violate some rule with respect to implementing the patients decision or administering the drugs (see, respectively, Articles 8 and 9 of Decree No. 109/XIV). This would be the case, for example, if they did not respect the patients express will or if they continued the procedure even after the patient had become unconscious before the scheduled date of death.
Thus, the non-punishability provided for in the new paragraphs 3 added to Articles 134 and 135 of the Criminal Code by Article 27 of Decree No. 109/XIV must be assessed in light of the conditions for issuing the opinions envisaged in Article 2(1) of the same regulation (it being clear that it is with respect to some of those conditions that the constitutional conformity of that norm is being questioned by the requester); and not vice versa (cf. no. 21 above). Moreover, with regard to Article 27 of the aforementioned Decree, the unconstitutionality imputed is merely consequential.
The prerequisites on which the various opinions are based are set out in Article 2(1). And, as mentioned, the doubts raised by the requester relate to the determinability of the concepts used to enunciate some of these prerequisites. As such, these doubts should be clarified by referring to the constitutional parameters applicable to the norms governing the restriction or regulation of fundamental rights which is a matter on which only Parliament may legislate as per Article 165(1)(b) of the Constitution and not in light of the parameters applicable to the rules defining crimes, both positive and negative which is also a matter for Parliament to legislate (cf. Articles 29(1) and 165(1)(c), both of the Constitution).
On the other hand, with specific regard to invoking Article 112(5) of the Constitution, it is important to bear in mind its material scope, which relates to normative acts (as indicated by the title of the precept itself) and the prohibition set out therein preventing the law any law, whatever the area from creating other categories of legislative acts besides those defined in that Article and itself admitting the interpretation, modification, suspension or revocation of any of its precepts by relating them to acts of a different nature with identical effects to that of the law in question (external effects). This means prohibiting the law from opening up the normative framework that forms its content to possible amendment by (normative) acts that are not legislative in nature and, therefore, lack the force of formal positive law. It is an issue that arises from the reciprocal relationships that can be established between normative acts.
The issue raised by the requester, on the other hand, concerns certainty and clarity in applying Article 2(1) of Decree No. 109/XIV, i.e., the prescriptive power of the norm contained in that precept, that is to say, its normative force, understood as its capacity to effectively direct and shape the conduct of those it is aimed at. What is at issue, therefore, given the matter in question and the fact that an administrative body is to issue an opinion authorising a given practice, is Parliaments exclusive legislative competence with respect to establishing regulatory detail: namely the degree of specificity of Article 2(1) as the norm allowing the issue of that opinion, with a specific content, and also guiding doctors conduct and judgements, which it must also control. In other words, what needs to be assessed is the actual normative content of the precept in question in light of constitutional requirements, particularly those arising from the principle that laws must be determinable, as a corollary of the principle of a democratic state based on the rule of law, and of the constitutional rule that legislation on certain matters can only be passed by Parliament, as deriving from the combined provisions of Articles 2 and 165(1)(b) of the Constitution. In this case, what is at issue is the distribution of tasks between the author of the norm and whoever is charged with applying or implementing it.
36. Without prejudice to the previous considerations, it should be noted, in relation to the principle of criminal legality, that it is, from the outset, very doubtful that this principle could provide secure backing for any judgement reproaching, in constitutional terms, the norms contained in Article 2 of Decree No. 109/XIV, namely in relation to the two segments (and criteria) specifically contested by the requester. Especially if the relevant criterion for such a reproach is the level of determinability imposed on laws that diminish the level of protection granted by criminal law or, as stated in the request, laws that result from the extent of the freedom to limit the right to life, interpreted in accordance with the principle of human dignity and not, as befits the requirement of certain law, the degree of specific definition necessary to protect the individual from criminal law (in this regard, on the principle of criminal legality, CLAUS ROXIN, Strafrecht. Allgemeiner Teil. Grundlagen. Der Aufbau der Verbrechenslehre, C.H. Beck, Munich, 1992, p. 67).
As a personal guarantee of non-punishment outside the scope of a written, pre-existing, certain and strict law, the principle of criminal legality operates as a defensive principle, which constitutes on the one hand the most solid guarantee for individuals against possible arbitrary acts by the State in the context of exercising ius puniendi (cf. FIGUEIREDO DIAS, Direito Processual Penal, I, Coimbra: Coimbra Editora, 1974, p. 96, and Ruling No. 324/2013) and is, on the other hand, a condition of predictability and legitimate expectations, in the sense that it allows every citizen to be aware of human conduct that is pertinent at any given time in the field of criminal law (see Rulings No. 41/2004, 587/2004 and 606/2018).
It is, therefore, understandable that the requirement of a certain law is focused squarely and fundamentally at the law that creates or aggravates criminal liability, imposing on it a sufficient specification of the acts that make up the legal type of crime (or that form the preconditions for applying a penalty or security measure) and the definition of the corresponding penalties (and security measures). And, conversely, that this requirement may not find strict symmetry in terms of decriminalising or mitigating said liability, otherwise, as explained by FIGUEIREDO DIAS, the principle may run counter to its teleology and its very raison dêtre: protecting citizens rights, freedoms and guarantees against the possibility of the State exercising its powers arbitrarily and excessively. (Cited author, Direito Penal Parte Geral, volume I, 3rd ed., Gestlegal, Coimbra, 2019, p. 216).
In this respect, the Court has repeatedly held that the power to place negative boundaries on the States criminal intervention also falls within the scope of Parliaments exclusive legislative competence, as enshrined in Article 165(1)(c) of the Constitution (see, inter alia, Rulings No. 56/1984, 173/1985, 254/1986, 427/1987, 158/1988, 349/1993, 592/1993, 797/1993, 663/1998, 596/1999). But as regards the requirement of determinability, it has already had occasion to state categorically that precision or determinability is at the constitutional and legal level required more for defining the crime than describing reasons for exemption from unlawfulness or guilt, as is well-known to all who dedicate themselves to such matters (cf. Ruling no. 25/84, VII, 3).
Now, Article 2(1) of Decree No. 109/XIV refers to non-punishable hastened medically assisted death, but it is Article 27 of the Decree that decriminalises homicide at the victims request (provided for and punished in Article 134 of the Criminal Code) or incitement or assistance to suicide (provided for and punished in Article 135). As envisaged in this provision of the Decree, Articles 134 and 135 of the Criminal Code would be amended to include the possibility of exemption from punishment for the conduct described therein. Whether one understands it to be a cause for exemption due to not satisfying the definition of an offence, based on a difference in the social meaning of the action (FIGUEIREDO DIAS, A ajuda à morte: uma consideração jurídico-penal, op. cit., p. 212) or rather a cause for justification based on consent, what is beyond doubt is that we are dealing with a legislative measure that restricts or limits legal and criminal liability and that, therefore, falls outside the core scope of the principle of legality as regards criminal intervention on the part of the State.
It is true that the determinability of the criminalising norm ensures, as FIGUEIREDO DIAS also clarifies, that the description of the prohibited matter and of all the other requirements on which a punishment specifically depends is carried to a point in which the prohibited and sanctioned behaviours become objectively determinable and, consequently, citizens conduct becomes objectively motivatable and manageable (see op. cit., pp. 218-219). It could therefore be argued that the determinability of the reasons for exemption from criminal liability could be as it appears to be in the situation at hand equally relevant when it comes to establishing the prerequisites that must be verified to remove a certain conduct from the list of punishable behaviours, especially in an area as sensitive as the one in question.
This assumption forms the basis for the arguments put forward in the request, which lead to the conclusion that the principle of criminal legality also requires that the legislator provides the physician involved in the procedure with a minimally certain legislative framework that can guide their actions (cf. point 8).
But we fail to see how this requirement can simply be reduced to the principle of legality governing criminal intervention on the part of the State. In reality, indeterminate concepts, when applied to any condition for exemption from legal and criminal liability, tend to increase and not reduce the chance of a certain conduct not being punishable. Such vagueness will therefore, as a rule, result in greater protection for citizens against punitive actions by the State even if this is to the detriment of criminal protection for the legal goods in question.
If the conceptual vagueness criticised by the requester is indeed to be reproached, not insofar as it leaves the addressees of the criminalising norm unprotected that is, insofar as it compromises the capacity of potential perpetrators of the crime to comprehend and verify the unlawfulness that continues to be expressed in the description of the offence but primarily for failing to provide protection to the legal goods it encompasses, then the judgment must lean towards invoking the principle that laws must be determinable not (at least principally) as a dimension of the principle enshrined in Article 29(1) of the Constitution but as a corollary of the principle of a democratic state based on the rule of law, and of the constitutional rule that legislation on certain matters can only be passed by Parliament, as derived from the combined provisions of Articles 2 and 165(1)(b) of the Constitution of the Portuguese Republic, by reference to the right to life enshrined in Article 24 thereof (interpreted, according to the requester, in accordance with the principle of human dignity).
37. Even if one intended to link the requirement of determinability invoked in the request to the principle of criminal legality, it would always be necessary to ask whether, in view of Articles 2(1) and 27, both of Decree No. 109/XIV, it can really be said that the law places the health professionals involved in the procedure or qualified to perform or assist in the act of hastening death (identified in Article 17(1) of the same Decree) in an extremely uncertain situation as regards the specific conditions for punishment.
In this regard, as should be recalled, this Court has repeatedly stated that while this does not imply any kind of renunciation of the guarantee provided in defining the crime [ ], the principle of legality places no onus on the criminal legislator, when defining the myriad criminally relevant actions and omissions, to always and only use regulatory wording that is fully descriptive and exhaustive (see Ruling No. 606/2018 II, 18). Therefore, it has more or less broadly admitted the use of indeterminate concepts (see Ruling No. 20/2019, no. 16, and the case law cited therein) as well as the use of the cross-referencing technique underlying so-called 'blank criminal laws' [which] presents the advantage of ensuring ongoing synchronisation between criminal law and developments in specific areas of knowledge or activity, a requirement that cannot be achieved through a preference for descriptive and restricted enunciations, which inherently tend to be rather incomplete and static (Ruling No. 606/2018, II, 18). Accordingly, it has been considered that criminalising provisions are reconcilable with the requirements of the vagueness doctrine whenever their wording, even if indeterminate and vague, is materially adequate and sufficient to make known which actions or omissions the citizen should avoid (see Ruling No. 76/2016, II, 6) namely when the materially indeterminate concepts become determinable by reference to other legal provisions, regulations or even administrative pronouncements of various kinds, as well as by appeal to the lege artis or technical rules that those envisaged in the norms must be aware of (see, among many others, Rulings No. 545/2000, 115/2008, 146/2011, 698/2016).
The Decree in question, as already mentioned, proposes introducing precepts into the Criminal Code that determine the non-punishability of conduct, by reference to conditions laid down in the law to which it would give rise. In fact, the wording used by the legislator, whether for Article 134(3) or Article 135(3), is that the conduct is not punishable [ ] when carried out in compliance with the conditions established in Law No. xxx. Taking the letter of the law in its most natural sense, it cannot be construed that the legislator, by referring to the conditions established in Law No. xxx intended to refer (only) to the conditions established in Article 2(1) of Law No. xxx. Thus, it is not conceivable that a minimally diligent addressee would be misled as regards the interpretation of the precepts in question: the reference introduced in Articles 134(3) and 135(3) must be taken as being made to the whole articulated and complex set of material, procedural and formal conditions established in Decree No. 109/XIV. Therefore, it is clear that the non-punishability of the conduct described in Articles 134 and 135 of the Criminal Code does not dispense with the verification of all those conditions, at the time and in the manner established for their respective confirmation, just as liability can only be excluded, under Article 21 of the same Decree, when it can be demonstrated that all the conditions and duties established in the present law have been met. The argument is also valid with regard to the new paragraph 2 of Article 139 of the Criminal Code, which determines the non-punishability of the conduct in accordance with Article 135(3).
Whether as a prerequisite for exempting the conduct from the offence defined, based on its differing social meaning, or as a condition for consent to be effective, in terms of exemption from unlawfulness, determining the clinical situation of the person making a request for hastened medically assisted death is one of the prerequisites for excluding criminal liability, which the health professionals involved in the procedure would otherwise face.
Not least because the consent required is a qualified consent not only because it necessarily takes the form of a sincere and free request, but because it is itself subject to increased clarification and reiteration requirements , such requirements being subject to a formal investigation procedure, culminating in the CVAs opinion.
As already stated, verifying the essential material prerequisites for the conduct to be non-punishable (the elements of the hypothesis of the norm), established in Article 2(1), depends on a complex procedure (Articles 3 to 7), detailed in the SHR, which must include all the documentation the administrative process supporting all the relevant procedural steps (see Article 15). This document must contain, among other things, the written and reiterated expression of the persons will; the statements issued by the parties involved in the procedure regarding fulfilment of the requirements established in Article 2(1), including the opinion issued by the CVA referred to in Article 7 of Decree No. 109/XIV; and also the written statement regarding the day, time, place and method to be used for implementing the persons decision (cf. Article 8(1) and (3)). Articles 9, 12 and 17(2) establish additional conditions to be observed at the moment lethal drugs are administered most notably, due to its importance, confirmation of the patients will in the presence of witnesses, as referred to in Article 9(2).
Once a favourable opinion is issued by the CVA, exemption from criminal liability of health professionals who directly participate in implementing the patients decision will depend exclusively on compliance with the norms regulating conduct that actively and directly produces the patients death in the case of homicide at the victims request or that helps the patient produce said death by their own actions in the case of assisted suicide. Such norms are provided for in Articles 8, 9, 12 and 17(2) of the Decree.
Thus, in the first scenario, criminal liability will be excluded if the act producing death is carried out by a health professional and consists in the administration of lethal drugs on the day, time and place previously agreed between the patient and the advising doctor, provided that: the former, after having been informed by the latter about the methods available for hastening their death, has opted, by means of a document dated and signed by them, for the hetero-administration of the said substances; immediately before this has begun, the former has confirmed to the latter the will to hasten their death, in the presence of at least one witness; and the lethal drugs have been administered by or with the advising doctor present.
In the second scenario, assisted suicide will not be punishable if conducted by a health professional, who provides lethal drugs on the day, time and place previously agreed between the patient and the advising doctor, provided that: the former, after having been informed by the latter about the methods available for hastening their death, has opted, by means of a document dated and signed by them, for the self-administration of the said substances; immediately before this has begun, the former has confirmed to the latter the will to hasten their death, in the presence of at least one witness, duly identified; and the lethal drugs have been provided and self-administered by or in the presence of the advising doctor, respectively.
It follows from the foregoing that, in the part establishing the prerequisites for the acts causing or assisting death, taking place after the formal procedure verifying the conditions set out in Article 2 of Decree No. 109/XIV, the reason for exempting the punishability provided for in that Decree are made up only of descriptive details and determined concepts, which allows the actual perpetrator of the action to justify and direct their actions. The latter who can only be, as we have seen, a health professional has, therefore, the necessary means to guide their conduct in order to avoid the punishability of the actions set forth in Articles 134 and 135 of the Criminal Code, in terms that satisfy the requirements of determinability, as outlined in this Courts case law.
F) The insufficient regulatory specificity of the concepts describing the criteria for accessing medically assisted death, called into question by the requester in light of the principle that laws must be determinable
38. In any event, the foregoing conclusion does not answer the doubts and questions raised by the requester (see no. 10 above). To do so, and since we are dealing with a norm aimed at allowing an assessment on whether a right exists within the scope of a procedure regulated by law and in which an independent administrative entity the CVA intervenes with authoritative power, it is justified to invoke the principle that laws must be determinable, as a corollary of the principle of a democratic state based on the rule of law, and of the constitutional rule that legislation on certain matters can only be passed by Parliament, as derived from the combined provisions of Articles 2 and 165(1)(b) of the Constitution (cf. no. 35 above), by reference to the right to life (Article 24 of the Constitution), interpreted in accordance with the principle of human dignity.
It should be noted that the need for particular care with regard to the determinability of the law and regulatory specificity may result not only from the fact that this falls within the scope of Parliaments exclusive legislative competence, but also from the requirements of the principle of administrative legality (see in particular Article 266(2) of the Constitution), in terms of the precedence of the law. As stated in Ruling No. 296/2013 (II, 46), the legal norm enabling administrative action must have a minimum of specificity, i.e., it must contain a sufficiently precise rule (detailed, specific), so that, at least, it can represent a legal criterion guiding administrative action, allowing the respective control through judgements of legality and defending the rights and interests of citizens. The lack of an effective legal criterion, guaranteeing impartiality and avoiding arbitrariness, deprives the administrative powers of a parameter for action). Such concern makes perfect sense in the present context, since the parts of the norm questioned in the request, by virtue of the clinical and legal procedure instituted by Decree No. 109/XIV also apply as follows from the requesters argument to actions by the Administration itself, namely the CVA, which cannot be exempted from judicial control over the legality of its actions.
Thus, it must be assessed whether the two specific normative segments contained in Article 2(1) of Decree No. 109/XIV, as identified by the requester the criterion whereby a person of legal age decides to hasten their own death when in a state of intolerable suffering and the relevant sub-criterion for the same purpose of non-punishable hastened medically assisted death, namely extremely severe and permanent injury according to scientific consensus meet the requirements of the principle of determinability of the law.
39. Since protecting the right to life, enshrined in Article 24(1) of the Constitution, is at stake, as well as the minimum requirements imposed by respecting human dignity with respect to freedom of action and individual self-determination, as a dimension of the right to develop one's personality (Article 26(1), in connection with Article 1, both of the Constitution), there can be no doubt that the law under analysis falls under the scope of the Assembly of the Republics exclusive legislative competence, by virtue of Article 165(1)(b) of the Constitution and that, given the significance of the matter to a fundamental legal good such as human life and the definitive and irreversible nature of the decisions it provides for in that regard, there is particular demand to invoke the requirements of determinability that arise from the principle of a democratic state based on the rule of law.
According to the case law of this Court see, for example, Ruling No. 225/2018 (No. 53) the legal rules on rights, freedoms and guarantees, which is a matter on which only Parliament can legislate, especially where restrictions are concerned though the same requirement applies, by analogy or even a fortiori, to the legal conditions for permitting conduct that may permanently and irreversibly damage the legal goods they protect, as is the case in this instance with respect to human life, and the legal conditions for exercising personal autonomy that make such damage possible must obey criteria of precision or determinability, arising from the principle of a democratic state based on the rule of law enshrined in Article 2 of the Constitution. As stated in Ruling No. 285/92, and reiterated in subsequent case law:
[The] question of the relevance of the principle that laws must be precise or determinable is closely linked to the principle whereby certain law-making is reserved to Parliament, and mainly has to do with the question of whether, in a concrete case, the scope of the normative hypothesis established by law fulfils the requisites that are deemed indispensable in order to assert that its content does not give the Administration, which is in charge of the implementation, a decision-making margin that encompasses the essential elements of the legal hypothesis itself, in which case the order of the distribution of competences between the legislator and the enforcer of the law would be subverted. [ ]
It is not hard to acknowledge that the principle of the determinability or precision of laws does not constitute a constitutional parameter per se i.e., one that is not linked to the nature of the matters in question or to a conjugation with other constitutional principles that are relevant to the case. While it is thus true that the Portuguese constitutional legal system does not include a general prohibition on issuing laws which contain indeterminate concepts, it is nonetheless true that there are domains in which the Constitution expressly requires that laws cannot be indeterminate. Examples of this include the requirements for offences to be defined in penal matters (laid down in Article 29(1) of the Constitution) and in the fiscal field (see Article 106 of the Constitution), or as an offspring of the principle of legality (nulla poena sine lege), or that taxes must be legally defined (null taxation without law).
Given the special regime to which restrictions on rights, freedoms and guarantees are subject (Article 18 of the Constitution, and especially paragraph 3), taken in conjunction with the principle of legal certainty inherent in a democratic state based on the rule of law (Article 2 of the Constitution), we must acknowledge that, in accordance with a criterion or principle of proportionality to which the aforesaid restrictions must be subject [ ], the degree to which the law must be precise or determinable has to be such that it: provides whoever is targeted by the normative provisions with precise, exact and timely knowledge of the legal criteria which the Administration has to employ, thereby reducing the excessive risks to which those parties would be subjected by norms that were indeterminate about the assumptions on which the Administration must base its actions; provides the Administration with rules of conduct garnished with criteria which, without strangling its freedom of choice, safeguard the essential core of the guarantee of the rights and interests of private individuals to which the Constitution affords its protection in terms of the normative scope of a precept (Tatbestand); and finally, enables the courts to effectively and objectively control the suitability of the Administrations concrete actions in the light of the content of the legal norm which formed their basis and origin.
In other words, and as the Court summed it up in Ruling No. 474/2013:
The state is required to include clear, precise and certain decision-making criteria in the law, in such a way as to: give the Administration a concrete space in which it is bound by rules and cannot simply follow its inclination by identifying a core that is important to the legitimation of the intervention which restricts the affected right, freedom or guarantee; and enable judicial control over the (possible) absence of management criteria and the proportionality of their consequences in the face of the profound injury to [that] right [ ].
Along the same lines, JORGE REIS NOVAIS states that [i]n a state governed by the rule of law based on human dignity and fundamental rights, recognition of the inevitability that constitutionally protected individual autonomy, freedom and well-being may be restricted goes hand in hand with the need for the meaning and scope of the restriction, as well as the specific extent of its potential application, to be determinable with sufficient precision, have a sufficiently specific normative content and, as such, be identifiable by the addressees and those affected, as well as be strictly narrowed down according to the ends that justify them and be, moreover, necessary, recognisable in their content and foreseeable in their effects (see Princípios Estruturantes de Estado de Direito, Almedina, Coimbra, 2019 [reprint], p. 267).
The legislator, and the legislator alone, is therefore required to provide those involved in the administrative procedure that culminates in the issuing of the CVAs opinion, with criteria that are sufficiently precise and determinable as to enable reasoned, congruent and contestable decisions to be made. The degree of precision and determinability is all the more important in the case of norms which, by establishing criteria or prerequisites (elements of the hypothesis of the norm) prior to the (future) conduct (following its hypothesis) of those they target, are intended to guide such people in exercising the powers entrusted to them, within a procedural framework established by Decree No. 109/XIV, whether those targeted are public in nature or from the private or social sector acting within the framework of public legal rules.
40. Article 2(1) of the Decree under analysis contains several prerequisites (elements of the hypothesis of the norm) whose wording leaves no doubt personal decision; person of legal age; current, reiterated, sincere, free and informed will; performed or assisted by health professionals. However, it is for the advising doctor, medical specialist and the other parties involved in the procedure, with particular emphasis on the CVA, to specifically verify whether the requirements of a state of intolerable suffering, an extremely severe and permanent injury according to scientific consensus and an incurable and fatal illness are met prerequisites that, after all, and in the view of the legislator itself, are crucial in order to justify, in light of the duty to protect human life, no punitive action on the part of the State.
The legislator establishes a connection between these elements by sequentially using the preposition with, followed by the disjunctive conjunction or, making it clear that intolerable suffering is a fundamental prerequisite, but only when combined with one of the prerequisites expressed afterwards, either an extremely severe and permanent injury according to scientific consensus or an incurable and fatal illness. As a matter of fact, most of the bills presented albeit with variations as to the concepts adopted opted to connect two prerequisites, associating a diagnosis with a state, which constitutes a first stage of detailing the hypothesis set out in the norm (cf. the Left Bloc [Article 1], PAN (Article 3), Socialist Party [Article 2(1)], PEV [Article 3] and IL [Article 1] bills).
In other provisions, although of a procedural nature, one can find reference to other aspects that the experts involved in the procedure must take into account when preparing and substantiating their opinions, which reveal the judgements expected of them. Thus, for example, Article 3(3) states that the advising doctor must consult and consider the patients clinical history as an essential aspect of their opinion; Article 4(1) states that the patient must be provided with information on the prognosis as regards the clinical situation affecting him/her (and that this information must be included in the SHR, pursuant to Article 4(2)); Article 5(1) states that the medical specialist must confirm the diagnosis and prognosis of the clinical situation; and Article 6 admits the possibility of other medical specialists (psychiatrists) and psychologists intervening to assess the patients psychological state.
Although not included in Article 2(1), and serving a primarily procedural purpose, these provisions do ensure that some information, relevant for verifying the fulfilment of the prerequisites contained therein, will definitely be included in the file: among these, the patients clinical history and the prognosis regarding their ongoing physical condition stand out due to their importance.
Despite imposing, as an unavoidable procedural step, retrospection and prognosis that serve a dynamic analysis of the patients clinical history and the specification of attributes such as permanent, incurable and fatal, Decree No. 109/XIV falls short of including a list of definitions (as appears, for example, in basis II of the Framework Law on Palliative Care Law No. 52/2012 of 5 September or similar to that which is provided for in Article 3 of the proposición de Ley orgánica de regulación de la eutanasia, the draft law regulating euthanasia recently approved in Spain). Moreover, said Decree diverges from options adopted in other countries, by not including in the norm requirements such as the lasting, constant, permanent or unalleviable nature of the suffering (present in the Belgian and Luxembourg legislation, for example) or the absence of prospects for improvement (present, for example, in the Dutch and Luxembourg legislation) and it does not expressly impose that factors of this type must be considered in the opinions to be issued during the procedure.
As regards, in particular, the normative segments identified in the request, other problems emerge from the indeterminate concepts therein, which warrant a separate analysis.
G) Cont.: insufficient regulatory specificity of the concept
in a state of intolerable suffering
41. With reference to the various prerequisites for non-punishable hastened medically assisted death, the requester expresses doubts regarding the aspect of a state of intolerable suffering expressly described as the first criterion (request, point 5).
He begins by emphasising that the concept of suffering has a high degree of subjectivity, resulting from the fact that Decree No. 109/XIV omits both its definition and the indication of criteria for its interpretation, fulfilment or measurement by the advising doctor and medical specialist, legislative options that might generate legal uncertainty, affecting all those involved: the petitioner, health professionals, CVA members and citizens in general (cf. request, point 6).
However, the use of the concept of suffering by the legislator is nothing new.
It is found, for example, in the definition of the crime of aggravated murder, being included in the provision for two of the standard examples into which this type of crime is divided: the circumstance that the perpetrator employs torture or an act of cruelty to increase the suffering of the victim (Article 132(2)(d) of the Criminal Code) or is motivated by the pleasure of causing suffering (paragraph (e) of the same precept) may indicate particular reprehensibility or depravity in the act of producing death. It also forms an aspect of the criminal legal regime for medical and surgical interventions and treatments. The intention to alleviate suffering is one of the therapeutic purposes that the criminal legislator exempts from the criminalisation of bodily harm when, according to the latest medical knowledge and experience, such interventions or treatments are recommended and carried out in accordance with the lege artis, by a doctor or legally authorised person (cf. Article 150(1) of the Criminal Code).
Beyond the criminal system, the concept of suffering finds a place and a central one in other legal disciplines that are clearly similar and connected with the one under consideration here.
Law No. 52/2012, of 5 September, the Framework Law on Palliative Care, includes the concept in the definition and scope of palliative care, with reference to patients in a state of suffering due to incurable or serious illness, in advanced or progressive stages and the prevention and relief of physical, social and spiritual suffering, which is associated not only with pain and other physical problems, but also with other psychosocial and spiritual problems (paragraph (a) of basis II and no. 1 of basis III); in the definition of diagnostic and therapeutic obstinacy as a source, in itself, of increased suffering (paragraph (d) of basis II); in the National Palliative Care Networks obligation to provide palliative care to patients who, regardless of age and pathology, are in a state of suffering due to serious or incurable illness, with a limited prognosis and in an advanced and progressive stage (nos. 1 and 2, paragraph (a) of basis IX).
More recently, Law No. 31/2018, of 18 July, which establishes a set of individual rights in the context of advanced illness and end-of-life situations, takes as its purpose to enshrine the right of people in this condition not to suffer in a sustained, disruptive and disproportionate way (Article 1); it prohibits dysthanasia, through therapeutic and diagnostic obstinacy that prolongs or disproportionately worsens suffering (Article 4); and includes the right to refuse artificial support for vital functions and treatments not exclusively aimed at reducing suffering (Article 5(3)), as well as the right of patients with a life expectancy estimated in weeks or days with symptoms of suffering not controlled by first-line measures to receive palliative sedation by means of drugs suitable exclusively for the purpose of treating suffering in accordance with the principles of good clinical practice and the lege artis (Article 8(1)).
It follows from these regulatory provisions that the concept of suffering, although often having in its genesis the physical, somatic pain, caused by changes to body tissues, is not to be confused with the concept of pain, since it relates to other factors besides the persons strictly physiological problems.
As emerges from the reflections of ERIC J. CASSELL, there can be pain without suffering, because not all pains are experienced by the person as sources of existential concern or anguish since they do not imply disease or dysfunction, giving as an example labour pains (The Nature of Suffering and the Goals of Medicine, 2nd ed., Oxford University Press, 2004, p. 34). On the other hand, phenomena of suffering without physical pain are frequent, as is the case of pathological mourning, which can even involve simply the anticipation of a future event, considered profoundly upsetting for the person, as opposed to the processes resulting from nervous stimuli generated by some place or places in the body. For the author, suffering can be broadly defined as a state of severe distress, associated with events that threaten a persons integrity. It requires self-awareness, involves both sensations and emotions, and is deeply influenced by social perceptions and interpersonal relationships. As an existential state of serious affliction, it inevitably takes on a holistic dimension, with the person suffering as a whole, even though the state of suffering may have as its deepest root a particular aspect of the person/being (emotional, physiological, spiritual or other).
This same view of suffering is reflected in Opinion No. 107/CNECV/2020 of the National Council of Ethics for the Life Sciences when it states that [the] suffering includes various and polymorphic experiences (helplessness, anguish, vulnerability, loss of control, threat to the integrity of the existential project). It is made up of many somatic and psychological elements, which are inseparable from each other and deteriorate the quality of life to such an extent that one may even feel that life is not worth living (p. 4).
This being so, there seems to be no doubt that the notion of suffering, adopted as a prerequisite for decriminalising conduct now included in the hypothesis for crimes envisaged in Articles 134 and 135 of the Criminal Code, and as a criterion for access to hastened medically assisted death, is highly subjective in nature, being closely associated with the personal identity of each individual and the way that person organises their inner experience. And that, when identifying it, the most relevant source of information for the advising doctor and the medical specialist is the way in which the patient manifests and verbalises their suffering, that is, the patients individual perspective. An analogy may be established here with medical anamnesis in a therapeutic context, as a fundamental procedure to make the precise diagnosis and to establish the therapeutic practices most suited to the patients clinical conditions, this being well established in the lege artis. It should be remembered that the concept of suffering is also accepted within the scope of palliative and end-of-life care, from the perspective of mitigating suffering, which presupposes an ongoing and careful evaluation of such suffering, without which it would be impossible to assess the medical assistance and medication options.
42. Once this course has been followed and the strong subjective dimension of the concept of suffering has been demonstrated, one may ask about the meaning of the qualitative requirement deriving from the adjective intolerable. Indeed, to fulfil the complex regulatory criterion of Article 2(1) of Decree No. 109/XIV, it is not enough that the petitioner is suffering; they must be in a state of intolerable suffering. How, then, to assess whether suffering assumes this quality?
The requester argues that that question is not properly answered in the regulatory system established by that Decree and that the definition of the concept largely depends on the advising doctor and the medical specialist, who are deprived of any guiding compass, which is why the legislative measure fails the determinability test in that respect.
However, this is not the case.
To state that suffering is a private phenomenon idiosyncratic, unique to the individual does not mean that it is beyond any objectification, or that it is unfathomable by third parties, restricted to an uncritical and merely empathic acceptance of what is reported by the patient in the first person.
Without undermining the fundamentals of ERIC CASSELLs personalist view with respect to the aims of medicine, an important group of authors who dedicate themselves to the issue of suffering, looking at the eligibility criteria for access to palliative care, with particular emphasis on palliative sedation, as well as hastened assisted death, as introduced in the Netherlands (where the doctors conviction that the patients suffering is unbearable is a requirement), point out some limitations to the authors strictly subjectivist position. They present, in contrast, a viewpoint that does not dispense with an objective analytical model (even if it denies the possibility of measuring suffering, or rigidly establishing different standards, in terms similar or close to what happens with determining the quantum doloris in civil liability), based on current medical knowledge and experience and suitable for identifying both cases where there is no serious or informed will, as well as those in which the patient's assessment of the suffering, deemed intolerable or unbearable, is based on false premises or mistakes. Along this line, which makes room for suffering to be evaluated in legal terms, the following are worthy of note, among others: HENRI WIJSBEK, The subjectivity of suffering and the normativity of unbearableness in STUART J. YOUNGNER (ed.), Physician-assisted death in perspective: Assessing the Dutch experience, Cambridge University Press, 2012, pp. 319-332; GOVERT DEN HARTOGH, Suffering and dying well: on the proper aim of palliative care in Medicine Health Care and Philosophy, 2017, 20, pp. 413-424; TYLER TATE and ROBERT PEARLMAN, What We Mean When We Talk About Suffering And Why Eric Cassell Should Not Have The Last Word, Perspectives in Biology and Medicine, Volume 61, 1, 2019, pp. 95-110; CLAUDIA BOZARRO and JAN SCHILDMANN, Suffering in Palliative Sedation: Conceptual Analysis and Implications for Decision Making in Clinical Practice in Journal of Pain and Symptom Management, vol. 56, 2, August 2018, pp. 288-294; and CLARA COSTA OLIVEIRA, Para compreender o sofrimento humano in Revista Bioética, 2016, 24 (2), pp. 225-234.
The recognition that suffering, though highly subjective, remains assessable and verifiable by others, using for this purpose, in its not strictly physiological expressions, tools developed by branches of medical science such as psychiatry or psychology, supports the understanding that the regulatory criterion of a state of intolerable suffering, although broad and infinite when no specific situations can be defined, is not in itself indeterminable. Its interpretation and application is entrusted to qualified health professionals, subject to observance of the lege artis, based on scientific knowledge concerning the patients specific pathology, Unavoidably objective in nature, with which the intolerable suffering forms a unity of meaning in the teleology of the normative system of non-punishable hastened medically assisted death that Decree No. 109/XIV intends to establish.
It is true that the legislator could have chosen other paths, following, for example, the model adopted by the Framework Law on Palliative Care, which dedicates the entirety of basis II to defining a set of concepts. However, it is no less certain that, given the rapid evolution of medical knowledge, drawing too much on what actually happens in life would, in turn, entail a high risk of logical and categorical consistency being lost. As COSTA ANDRADE points out, with regard to Article 150 of the Criminal Code which, as we have seen, includes in its wording the intention to alleviate suffering there being no two truly equal cases in this area [ ], the moments of communicability that could lend firm meaning and content to legal or doctrinal categorisations are lacking (see Consentimento e Acordo em Direito Penal, Coimbra Editora, Coimbra, 1991, p. 466).
43. It remains, therefore, to conclude that the concept of intolerable suffering, although broad, is adequate for performing the intended function in respect of the norm contained in Article 2(1) of Decree No. 109/XIV, and can and should be objectified and proven in each specific case by properly applying the lege artis. To that extent, although indeterminate, the concept at issue is not indeterminable, but rather determinable. Moreover, its openness is appropriate to the clinical context in which it will have to be applied by doctors. These two reasons sufficiently justify the degree of vagueness in question and do not permit, in the particular field of hastened medically assisted death, the conclusion that such indeterminacy runs against the requirements of regulatory specificity imposed by the Constitution.
H) Cont.: insufficient regulatory specificity of the concept
extremely severe and permanent injury according to scientific consensus
44. It is now time to analyse the second contested normative segment where special care is required from the legislator, precisely because we are not dealing with a fatal illness (as the requester emphasises): the concept describing one of the second criterions sub-criteria, the extremely severe and permanent injury according to scientific consensus (request, points 7 and 8).
This wording must have originated in the bills presented by the Left Bloc (Article 1) and the Socialist Party (Article 2(1)), which refer similarly to permanent injury as a relevant criterion (or sub-criterion) for accessing hastened medically assisted death upon an individuals personal decision, as well as non-punishable euthanasia. Article 2 of what would become Decree No. 109/XIV and thus the final version of the sub-criterion referring to permanent injury was approved at the meeting of the committee responsible on 6 January 2021, using the wording from the proposal submitted by the Left Blocs parliamentary group, with the introduction of the following item in paragraph 1, having been proposed orally by the same party: extremely severe and permanent injury according to scientific consensus (cf. the note on the preparatory work for Decree No. 109/XIV, attached to the reply from the norms author, p. 8 cf. no. 5 above).
This is a cumulative condition, to be treated as an objective condition, which presupposes a consolidated diagnosis. The injury, as a trauma or pathological alteration of tissue, may or may not be incapacitating and is verifiable and able to be evaluated by a third person.
45. The expression adopted presupposes the diagnosis of a permanent injury.
If the adjective permanent does not raise any particular doubts, the problem arises from the outset with regard to the notion of injury, since this can correspond to conditions of very different severity (which can have as their origin or cause malformation, disease or a traumatic accident).
The legislator certainly classifies it as permanent, which seems to presuppose a judgement on its definitive and irreversible character (cf. the irreversible injury referred to in Article 142(1)(a) of the Criminal Code). But, in order to limit the universe of foreseeable permanent injuries, the legislator required that the injury be extremely severe and permanent according to scientific consensus (a qualification that was already added at the Left Blocs initiative, as mentioned, during the discussion of the bills).
The second problem that arises is that of understanding the meaning of extremely severe, when referring to a permanent injury, since the legislator does not give any indication of what should be understood, for this purpose, as extremely severe, nor is it possible to consider that, by referring to the knowledge of medical science, the norm becomes easily determinable by its addressees.
Moreover, as the requester points out with regard to the sub-criterion extremely severe and permanent injury as the only criterion associated with the injury is its permanent nature, and as there is no mention of it being fatal, it is difficult to see how there could be any question of hastening death, since this may not occur as a result of the injury (request, point 8) This aspect the possibility that the sub-criterion under analysis allows an interpretation according to which a mere permanent injury could lead to the possibility of medically assisted death (see idem, ibidem) takes on added significance because of the requirements imposed by the need to protect human life with respect to situations in which recourse to the voluntary collaboration of third parties to hasten a persons death, even at their own request, may be considered constitutionally admissible (cf. no. 33 above).
The vagueness of the concept of extremely severe, associated with a permanent injury, becomes even more evident when faced with the lack of consensus regarding the fatal nature of the clinical situations that might legitimise access to a hastened medically assisted death procedure in comparative law: while the European legal systems in which euthanasia is provided for (specifically, the Dutch, Belgian and Luxembourg legal systems) allow for assisted death without the patient suffering from a fatal or terminal illness, the opposite requirement is imposed in the legal systems of the American continent (specifically Canada, Colombia and the federal states of the United States of America that have decriminalised assisted suicide Oregon, Washington, Vermont, California, Colorado, Hawaii, New Jersey, Maine and the District of Columbia). This diversity of normative solutions reflects the difference in value and weighting attributed to the aforementioned objective requirements concerning the protection of human life, set against the individual self-determination of the patient. However, the legislative option in this area must be clear so as to allow an equally clear judgement on constitutional legitimacy, namely in light of the inviolability of human life enshrined in Article 24(1) of the Constitution.
46. Without prejudice to these considerations, the truth is that the legislator could have employed other concepts, much more common in (medical and legal) practice, which, without losing plasticity, would be readily comprehensible when associated with the prerequisite regarding intolerable suffering. Consider, for example, incapacitating injury or one that places the injured person in a state of dependence, which the Framework Law on Palliative Care defines in basis II, paragraph i), as the situation in which a person finds him/herself whereby, due to lack or loss of physical, psychological or intellectual autonomy, resulting from or aggravated by chronic disease, organic dementia, post-traumatic sequelae, disability, incurable and/or serious illness at an advanced stage, and an absence or scarcity of family or other support, cannot, by him/herself, carry out the activities of daily life (in fact, the bills presented by the PAN and the PEV parties mentioned, respectively, the clinical situation of total dependence or incapacity and a highly incapacitating injury cf. Article 3(1) of both bills). A similar solution is found in paragraph 3(b) of the aforementioned organic law on the regulation of euthanasia (Spain), which is still in the process of approval and defines a severe, chronic and disabling condition by reference to the impact that the persons physical condition has on their physical autonomy and everyday activities, so that they are unable to look after themselves, as well as on their capacity for expression and relationships, and which is associated with constant and intolerable physical or psychological suffering, where it is certain or highly probable that such limitations will persist over time with no possibility of cure or appreciable improvement. It can sometimes mean absolute dependence on technological support.
In any case, there is no doubt that it would be possible for the legislator to find an alternative wording, which would translate into a greater specification of the normative segment that is intended to be enshrined as a prerequisite for the non-punishment of hastened medically assisted death. There are, in fact, parallel areas in the normative system which whether in relation to norms that operate upstream or downstream constitute examples of a more meticulous and precise specification of (indeterminate) concepts that, in themselves, are not a priori unconstitutional. Take, for example, criminal law and civil law (e.g., with regard to the assessment of incapacity due to work-related accidents or occupational diseases and the assessment of incapacity and bodily harm in civil law, to enforce the right to compensation in cases of accident, illness or injury).
In the field of criminal law, the legislator did not merely establish a different consequence (harsher penalty) for severe offences to physical integrity (Article 144 of the Criminal Code). It also provided minimum criteria for classifying an injury as severe and did so from a dual perspective. Firstly, it made it clear that, in addition to endangering life (paragraph d), bodily injury, functional injury and damage to health may fall into this category. Secondly, it specified, within each of these subcategories, the type or types of injuries likely to fall under that level of severity: in the first instance, injuries that deprive a person of an important organ or limb or seriously and permanently disfigure them (paragraph a); in the second instance, injuries that take away or seriously affect the ability to work, intellectual, procreative or sexual enjoyment capacities, or the ability to use the body, senses or language (paragraph b); and in the third instance, particularly painful or permanent illnesses, as well as serious and incurable psychological abnormality (paragraph c).
It seems certain that the concept of extremely severe injury incorporates, in relation to severe injuries, an essentially qualitative differentiator in the sense that not all severe injuries shall be qualified, in their most serious manifestations, as extremely severe injuries , yet Decree No. 109/XIV does not provides any reference points upon which this should be based on.
Within the framework of civil law, Decree-Law No. 352/2007, of 23 October, recognising that the medico-legal evaluation of bodily injury, that is, of alterations to psychophysical integrity, is a matter of particular importance, but also of notable complexity, approved an (indicative) table for evaluating permanent disabilities in civil law, designed to be used exclusively by doctors specialising in legal medicine or by medical specialists from other areas with specific competence in the evaluation of bodily injury [ ], thus providing an additional component that is deemed to be of great practical use for standardising criteria and procedures (see the preamble of said Decree-Law). This instrument was based on a similar table adopted in the European Union called the Guide Barème européen dévaluation des atteintes à lintégrité physique et psychique (Guide Barème Européen dévaluation médicale des atteintes à lintégrité physique et psychique, 2006, www.ceredoc.eu), benefiting from the expertise of the Institute of Forensic Medicine, with a view to providing specialists with a solid basis for precise and specialised medical observations (ibidem). It is certain that it aims responding to the sensitive problem of economically quantifying bodily harm for the purpose of calculating fair compensation for non-material damage suffered, according to principles that cannot be transposed to the verification of prerequisites for non-punishable medically assisted death. Nonetheless, it is an example of specifying the evaluation criteria adopted with the purpose of ensuring standardised procedures. The same decree-law also approved the new National Table of Disabilities due to Work Accidents and Occupational Illnesses, which is a further example of specifying evaluation criteria with the aim of standardising labour law.
This type of instrument has also played an important auxiliary role in developing civil jurisprudence by facilitating comparability between specific cases. Thus, in this context, an assessment of the degree of severity of injuries is based on a very significant jurisprudential foundation, it being noted that references to severe, extremely severe or severely disabling injuries in the Supreme Court of Justice case law are reserved for particularly sensitive situations, such as:
Suffers severe injuries, excruciating pain, surgical intervention, hospitalisation, prolonged aftercare, catheterisation, tracheostomisation, respiratory and urinary infections, motor and sensory tetraplegia, movement in a wheelchair with assistance, outpatient treatment, bouts of incontinence, functional impotence, dependence on others for the satisfaction of basic needs, deep depression and persistent grief (Ruling of 13 July 2004, Case No. 04B2616);
Multiple injuries, namely severe orthopaedic injuries, insufficiently overcome, given the permanent after-effects on the injured persons ability to move [ ]; significant and irremediable impact on the injured persons standard of living [ ], associated, from the outset, with the degree of disability established (likely to reach 22% in a not too distant time frame) with negative repercussions, not only in terms of professional activity, but also life and personal expression; [ ] extremely prolonged hospitalisation and medical-surgical treatment, with immobilisation and periods of total disability and very intense physical and psychological pain and suffering (Ruling of 10 October 2010, Case No. 632/2001.G1.S1);
Multiple injuries, namely severe brain and neurological injuries, which implied for the injured person aged around 40 years a persistent and irreversible clinical state of vegetative coma, prolonged for almost 6 years, spanning both the 3 years of hospitalisation and the subsequent period in which the injured person was discharged and remained at home with his relatives, bedridden and totally dependent for the most basic activities of daily life and physical subsistence, until he eventually succumbed to the very severe consequences of the injuries caused by the accident there being no evidence that the injured person, in this prolonged state of coma, was given the profound unconsciousness and loss of cognitive functions effectively aware of the state of total disability in which he found himself (Ruling of 28 February 2013, Case No. 4072/04.0TVLSB.C1.S1 which contains references to several extremely severe situations).
In short, it appears that it is still possible, desirable and necessary to further specify the extreme severity of the injury, namely by reference to bodily injury and functional injury (cf. Article 144(a) and (b), respectively, of the Criminal Code), or, to temporary or permanent impact on the ability to work (cf. Article 19 of Law No. 98/2009, of 4 September). This conclusion is further reinforced by the fact that the context in which non-punishable hastened medically assisted death occurs which is totally new can in no way contribute towards a further explanation on the meaning of the expression at stake.
47. On the other hand, the fact that both the injurys extreme severity and its irreversible or permanent nature should be established in accordance with scientific consensus does not significantly increase or reduce the degree of vagueness that the limited specificity of the aforementioned concept projects onto the norm in question.
Although no indication is provided as to how such a scientific consensus is to be ascertained or identified whether it is a national, European or international consensus, a peer consensus among a specific group of medical specialists or medical specialities associated with extremely severe and permanent injury, or simply a general medical consensus , it is no less true that the so-called scientific consensus will, as a rule, represent the position generally accepted at a given moment by the majority of scientists specialising in a given subject.
Taking into account the nature of the parties involved in the procedure advising doctor, medical specialist (cf. Articles 75 and 97 of the Portuguese Order of Physicians Statutes, approved by Law 117/2015, of 31 August, and Article 3(a) of Regulation 628/2016) and the CVA, also including a physician appointed by the Order of Physicians , the scientific consensus referred to in the norm will therefore likely relate to the medical scientific consensus, all the more since the interventions of the advising doctor and the medical specialist, intended to verify compliance with that requirement, concern a clinical situation affecting the patient and the respective prognosis, i.e., the clinical situation prognosis (cf., in particular, Article 4(1) and Article 5(1), both of Decree No. 109/XIV) thus being medical acts (cf. Article 6(1) of Regulation No. 698/2019, of the Order of Physicians the legislation that defines proper medical practices).
In such a context, the general meaning of medical scientific consensus can be discerned to some extent, taking as reference, for example, the concept of medical consensus arising from the Committee of Ministers' Recommendation Rec(2001)13, made to Member States on developing a methodology for drawing up guidelines on best medical practices (adopted by the Committee of Ministers of the Council of Europe on 10 October 2001 at their 768th meeting) and its Explanatory Memorandum (available at www.coe.int). As explained in medical literature, in a specialised domain but worthy as a general statement:
According to the Council of Europe a medical consensus is a public statement on a particular aspect of medical knowledge that is generally agreed upon as an evidence-based, state-of-the-art knowledge by a representative group of experts in that area [ ]. Its main objective is to counsel physicians on the best possible and acceptable way to address a particular decision-making area for diagnosis, management or treatment. Consensus statements synthesize new information, largely from recent or ongoing medical research that may have implications for re-evaluation of routine medical practices. Consensus statements however do not provide specific algorithms or guidelines for practice because these depend on cost, available expertise and technology, and local practice circumstances.
There are different ways of producing medical consensus. Typically, an independent panel of experts is convened, either by a medical association or by a governmental authority. Both the Council of Europe and the US National Institutes of Health organize conferences that produce consensus statements on important and controversial topics in medicine. The consensus constitutes the expression of the general opinion of the participants and does not necessarily imply unanimity. Since consensus statements provide a snapshot in time they must be re-evaluated periodically.
A specific consensus method which does not need to bring experts together for a physical meeting is the Delphi process [ ]. The method involves sending out questionnaires of statements, aggregating and anonymising feedback and sharing them within the group in a number of cycles. The experts can adjust their answers in subsequent rounds. The theory behind the Delphi method is that the unidentified comments may facilitate inter- action between experts and reduce individual bias (see K. DE BOECK, C. CASTELLANI and J.S. ELBORN [on behalf of the ECFS Board], Medical consensus, guidelines, and position papers: A policy for the ECFS, in Journal of Cystic Fibrosis 13 (2014) 495-498, p. 495).
In the aforementioned Recommendation Rec(2001)13, one finds several references to consensus, namely consensus among peers, which results in the creation of guidelines that function as additional standards to assist courts in ruling on cases of medical malpractice (p. 25), these guidelines being drawn from a group of experts based on consensus (p. 35) or expert consensus, obtained by one of the formal methods, such as Delphi for establishing guidelines on essential care in the absence of evidence or when there is conflicting evidence (p. 64).
However, even if this is the case i.e., even if the meaning of medical scientific consensus can be deciphered no sufficiently secure, certain criteria are established on the possible methodology or methodologies for achieving it (there being several possible ones) or the range of medical experts according to whose consensus an injury should be considered permanent and extremely severe.
Furthermore, understood in these terms, the scientific consensus upon which the irreversibility and extreme severity of the injury should be established ends up having, in the context of the normative statement in which it is included, a meaning that is essentially tautological or redundant.
In fact, the intervention of the advising doctor and the medical specialist aimed at verifying fulfilment of the prerequisites or conditions on which non-punishable hastened medically assisted death depends constitutes, as already mentioned, a medical act, with a dual component: diagnosis which is characterised by the identification of a disorder, disease or the state of a disease by the study of its symptoms and signs and analysis of the examinations performed (Article 6(1) of Regulation No. 698/2019) and prognosis, based on the petitioners clinical situation. As a medical act, such verification is subject to the lege artis, embodying the set of rules that doctors must obey in each clinical act.
Now, since lege artis corresponds to generally recognised rules of medical science (Bockelmann, apud COSTA ANDRADE, Comentário Conimbricense , op. cit., p. 470) or the set of professional rules and principles generally accepted by medical science at a given moment in time, for similar cases though adaptable to specific individual situations (ÁLVARO DA CUNHA GOMES RODRIGUES, Responsabilidade Médica em Direito Penal, Estudo dos Pressupostos Sistemáticos, Almedina, Coimbra, 2007, p. 54), it may be said that the respective observance by doctors involved in the procedure already presupposes the consideration of standards of conduct agreed upon in the scientific community.
From this point of view, the reference to scientific consensus in Article 2(1) of Decree No. 109/XIV is similar to the reference to the state of medical knowledge and experience that, until the revision made by Law No. 16/2007, of 17 April, appeared in Article 142(1) of the Criminal Code: because it is, here as there, a standard of evaluation inherent to the observance of the lege artis, the requirement that indications for excluding punishment for voluntarily terminating pregnancy should be verified based on current medical knowledge and experience was eventually removed, as redundant and even superfluous, in the 2007 revision, since it seemed obvious in this context that verifying indications of a therapeutic nature should take into account current medical knowledge and experience (FIGUEIREDO DIAS and NUNO BRANDÃO, Comentário Conimbricense... , op. cit., p. 271).
48. The previous considerations, whether in relation to permanent injury, its extreme severity or, finally, the requirement of a scientific consensus on extremely severe and permanent injuries, demonstrate the manifest insufficiency of regulatory specificity in the respective legal hypothesis, thus rendering Article 2(1) of Decree No. 109/XIV, due to its vagueness, inadequate for regulating the conduct of its addressees in predictable and controllable terms. In this segment of the norm, said Decree does not adhere to the principle that laws must be determinable and contravenes Article 165(1)(b) of the Constitution, due to its Article 24, interpreted in accordance with the principle of human dignity provided for in Article 1 of said Constitution.
I) Norms challenged on the grounds of consequent unconstitutionality as regards Articles 4, 5, 7 and 27 of Decree No. 109/XIV
49. The judgement of unconstitutionality as to the norm contained in Article 2(1) of Decree No. 109/XIV, discussed in the preceding point, implies the other norms mentioned in the request being declared unconstitutional as a result namely those contained in Articles 4 5, 7 and 27 , insofar as they relate to the former, expressly or by association, in order to meet the requirements and conditions set forth in the same Decree. This is an inescapable effect justified by the centrality of Article 2(1) in the overall scheme of that law (cf. Ruling No. 793/2013, No. 27).
III. Decision
In view of the foregoing, the Court hereby decides, with reference to Decree No. 109/XIV of the Assembly of the Republic, published in the Official Gazette of the Assembly of the Republic, Series II-A, number 76, of 12 February 2021, and sent to the President of the Republic for enactment as law:
a) To pronounce the unconstitutionality of the norm contained in Article 2(1), on the grounds that it violates the principle that laws must be determinable, as a corollary of the principles of a democratic state based on the rule of law and Parliaments exclusive legislative competence, arising from the combined provisions of Articles 2 and 165(1)(b) of the Constitution of the Portuguese Republic, by reference to the inviolability of human life enshrined in Article 24(1) of the same Constitution; and, consequently,
b) To pronounce the unconstitutionality of the norms contained in Articles 4, 5, 7 and 27 of the same Decree.
Lisbon, 15 March 2021 Pedro Machete (explanation of vote) Maria de Fátima Mata-Mouros (explanation of vote) Lino Rodrigues Ribeiro (explanation of vote) José Teles Pereira (explanation of vote) Joana Fernandes Costa (explanation of vote) Maria José Rangel de Mesquita (joint explanation of vote) Mariana Canotilho (dissenting as per the attached explanation of vote) José João Abrantes (dissenting as per the joint explanations of vote) Assunção Raimundo (dissenting as per the attached explanation of vote) Gonçalo de Almeida Ribeiro (dissenting as to the grounds for the pronouncement, as per the attached explanation of vote) Fernando Vaz Ventura (dissenting as per the attached explanation of vote) João Pedro Caupers
EXPLANATION OF VOTE
I refute the conclusion reached in point 43 of this Ruling, namely that the criterion of intolerable suffering, though broad, is still adequate for performing the intended function in respect of the norm contained in Article 2(1) of Decree No. 109/XIV, since it can and should be objectified and proven in each specific case by properly applying the lege artis.
In my opinion, the requester is right in stating that this criterion does not result unequivocally from the medical lege artis and that, in any case, its vagueness does not meet the Constitutions requirements of regulatory specificity in the matter under consideration (request, point 6), particularly with respect to the principle that laws must be determinable. In fact, the assessment of the criterion under analysis, made in points 41, 42 and 43 of the Ruling, largely disregards the constitutionally enshrined duty to protect human life which is also recognised in the Ruling and the requirements arising therefrom as to the constitutional admissibility of self-determined death with the support of a third party, especially in the context of an administrative procedure aimed at performing an act that amounts to permissive authorisation as is the case with the CVA opinion. Moreover, the shortcomings of the aforementioned criterion at a linguistic and conceptual level are not compensated for by robust procedural guarantees (as could be offered, for example, if intervention by a psychiatrist and/or psychologist were mandatory).
In short, as it is worded, and taking into account the procedural context in which it will be applied, the criterion of a state of intolerable suffering for accessing medically assisted death lends itself to subjective and broad interpretations (and applications), which cannot be controlled, showing itself incapable of effectively preventing a drift towards the slippery slope, which is absolutely contrary to the tight limits within which, according to the Portuguese Constitution, this practice can be permitted.
This conclusion is based on the following rationale:
1. The fact that the concept of suffering is already employed in other regulatory contexts such as, for example, those referred to in point 41 of the Ruling justifies the legislators option of using it to establish a criterion for accessing hastened medically assisted death that can function as a necessary, but not sufficient, condition so as to not totally undermine the duty to protect human life. But such usage of the concept of suffering in similar regulatory contexts and with connections to terminal illnesses and the end of life itself, namely palliative care (Law No. 52/2012, of 5 September) and the context of advanced illness and end-of-life situations (Law No. 31/2018, of 18 July) immediately highlights the differences with respect to the legal wording.
It is therefore incomprehensible that there is no reference to a causal link between the medical conditions of injury or illness the mere association would seem to suffice in contrast to what happens in the field of palliative care (e.g., Law No. 52/2012, basis II, paragraph a), IX, no. 1, and XVII, no. 1, paragraph b), and Law No. 31/2018, Article 2). Moreover, without such a link it is impossible to comprehend the basis for the affirmed unity of meaning in the teleology of the normative system of non-punishable hastened medically assisted death that the Decree intends to establish between the patients specific pathology and intolerable suffering (cf. no. 42).
The importance of the causal relationship between the medical or clinical condition and the suffering for the purposes of assessing a request for hastened medically assisted death is recognised in several legal systems: for example, in the Netherlands, Belgium and Canada.
On the other hand, the causal link was provided for in Article 3(1) of Bill No. 67/XIV/1, presented by the PAN party (cases of incurable illness or injury causing intense, persistent physical or psychological suffering that has not been overcome or reduced to levels that are bearable and accepted by the patient); and in Article 3(1) of Bill No. 168/XIV/1, presented by the PEV party (a patient who is in a state of profound suffering due to a serious and incurable disease and with no expected hope of improving his/her medical condition).
The withdrawal of this reference to such a link in the final wording of Article 2(1) of Decree No. 109/XIV cannot, therefore, fail to raise doubts as to whether or not such a link is, after all, required. This creates a considerable degree of vagueness, given the consequences as to the meaning and scope of the criterion in question, the legislator being exclusively responsible for clarifying this issue.
2. On the other hand, the parallel regulatory premises, since they presuppose special medical and clinical knowledge and practices, make evident not only the need for some type of specific training on the part of the advising doctor (so that they are qualified to apply the more specific and proper lege artis of this approach at the end of life, namely to evaluate what is said, how it is said and the very body language of the individual) since the medical specialist referred to in Article 5 of Decree No. 109/XIV does not necessarily have to examine the patient, meaning, with respect to their assessment, the idea of an analogy [...] with medical anamnesis in a therapeutic context does not even have legally guaranteed objective conditions of application , as well as the possibility of creating working standards for evaluating suffering.
As mentioned by PAULA ENCARNAÇÃO, CLARA COSTA OLIVEIRA and TERESA MARTINS, suffering cannot be managed or relieved unless it is recognised and diagnosed (Cited authors, Dor e sofrimento conceitos entrelaçados perspetivas e desafios para os enfermeiros in Revista Cuidados Paliativos, vol. 2, no. 2, October 2015, p. 27). In other words, intervention by health professionals doctors and nurses , particularly in end-of-life situations, also depends on their ability to assess suffering: (i) whether it exists, (ii) the scope involved in the specific case, and (iii) its intensity. This is the only way to understand why the World Health Organisation redefined the concept of palliative care in 2002, considering the relief of suffering as the main priority.
There is indeed a lot of research, while new assessment instruments have also been developed to enable suffering to be tracked and diagnosed. Krikorian et al. (2013) in an article entitled Suffering Assessment: A Review of Available Instruments for Use in Palliative Care, whose objective was to identify and describe the existing instruments for assessing suffering in palliative care, as well as comment on their psychometric properties, note that, according to the results of this review, around 10 (ten) instruments are available for assessing suffering, both for clinical and research purposes, namely: Initial Assessment of Suffering (IAS); Perception of time; Single-item Numeric Rating; Pictorial Representation of Illness and Self Measure (PRISM); Structured Interview for Symptoms and Concerns in Palliative Care (SISC); Mini-Suffering State Examination (MSSE); Suffering Assessment Tool (SAT); SOS-V; Suffering scale and The Suffering Scales. According to Krikorian et al. (2013), of the ten instruments analysed in their review, the two with the most consistent psychometric properties, while also being the most conceptually coherent, are the PRISM and the SISC. Both allow a non-directive approach, provide a quantitative measure and can be used by patients with difficulty in oral and written communication (cf. PAULA ENCARNAÇÃO, CLARA COSTA OLIVEIRA and TERESA MARTINS, op. cit., pp. 28-29).
The reliability of the results from these third-party assessment instruments can be debated. However, it cannot be argued that there is no way for a third party to make an assessment, even if there is an inevitable margin of subjectivity involved. In fact, the possibility of an objectifiable grading of suffering cannot be excluded at all. The fact that this situation essentially represents a multidimensional subjective experience an existential state of serious affliction [that] inevitably takes on a holistic dimension does not preclude its diagnosis or an assessment of various degrees of suffering. Rather, it is necessary to rely on the assessment instruments used in this type of diagnosis, which is recognised in point 42 of the Ruling (with express reference to the need for the determination of intolerable suffering to be entrusted to qualified health professionals and not to any doctor chosen by the patient, as provided for in Article 3(2) of the Decree).
This aspect is important, since the very function attributed by the legislator to the criterion of intolerable suffering requires an objectification of the assessment made, both in terms of the grounds on which it is based (cf. Article 4(1) of Decree No. 109/XIV) and for the purposes of its control by other doctors and by the CVA itself (cf. Articles 5(1) and 7(1) of the same law). However, as is clear from the Rulings understanding of the criterion under analysis, the latter is insufficient for binding the advising doctor to a predefined methodology to be followed when evaluating the intolerable suffering claimed by the person approaching them apropos the request for hastened medically assisted death, documenting the essential steps for the evaluation according to the method or methods chosen by them. An advising doctor, who may lack the necessary specific training in this field, may therefore be satisfied with the patients personal report and their resulting impression of the patient when forming an opinion and producing the subsequent reasoned report (which, under such circumstances, may ultimately be based solely on the clinicians subjective and uncontrollable impression).
Moreover, in a field such as the one in question, and in which the various decisions have definitive and irreversible consequences, there can be no doubt as to what is actually required by the legislator and what the lege artis interpreted by the doctors applying the law provides for. In fact, the legislators failure to expressly clarify the ultimate responsibility for the assessment of suffering, namely whether self-reporting is sufficient or whether further assessment by the doctor is required even though the Ruling expressly assumes that third-party medical assessment should be required potentially creates a situation of legal uncertainty and even inequality, as different advising doctors may interpret the criterion differently, some being satisfied with self-reporting and others considering their own assessment.
In other words, there remains, also in this aspect, an inadmissible vagueness in the criterion under analysis, which the legislator can and should clarify, it being insufficient, given the definitive and irreversible nature of the decisions in question, to have an implicit and vague reference to the lege artis of certain medical specialities, which do not even have a necessary correspondence with the advising doctors speciality.
3. According to the Ruling, the intolerable nature of the suffering corresponds to a qualitative requirement: it is not enough that the petitioner is suffering; they must be in a state of intolerable suffering (no. 42).
Without the need to enter into speculations about the dynamic nature of reality and the laws of dialectics, it is common experience, and common knowledge, that quantitative changes in a situation give rise to qualitative changes and vice versa. So too with suffering, which is not static. This means that, to avoid nullifying the function of the criterion or condition that the law intends to attribute to suffering, the advising doctor must resort to strategies or instruments that not only allow acute or merely sporadic episodes to be detected, but also more serious and less serious suffering to be evaluated (and distinguished).
Indeed, in terms of rendering hastened medically assisted death constitutional, the law should indicate some characteristics of such suffering, in the sense of it being a more or less permanent state (for example, persistent suffering, continued or permanent suffering, lack of prospects for improvement, etc.). Similarly, it would also be necessary to flag the need to objectify the judgement of intolerability. In this regard, and following the approach taken in point 42 of the Ruling, everything would become simpler and, above all, more objective and controllable if: i) the medical specialist, referred to in Article 5 of the Decree, also examined the patient, in order to assess the impact of the specific pathology in question; ii) that specialist and the advising doctor had some specific training in the field of suffering and the therapies to alleviate or mitigate it (as already stated above in no. 2); and iii) if intervention by the specialist and/or psychologist were not merely optional, but compulsory, since, as the Ruling rightly states, suffering, though highly subjective, remains assessable and verifiable by others, using for this purpose, in its not strictly physiological expressions, tools developed by branches of medical science such as psychiatry or psychology (no. 42).
However, this is not what is envisaged, and the wording should be much more stringent in order to guarantee a minimum of objectivity in its actual application and allow the possibility of control, which according to the law is crucial in safeguarding the entire procedure in question. Pedro Machete
JOINT EXPLANATION OF VOTE
[presented by Justices Maria José Rangel de Mesquita, Maria de Fátima Mata-Mouros, Lino Rodrigues Ribeiro and José António Teles Pereira]
I
1. The below expresses the dissenting opinion of the four undersigned with regard to the failure to hand down a ruling of unconstitutionality, due to a violation of the Right to life enshrined in Article 24(1) of the Constitution of the Portuguese Republic (CRP), in relation to the norm contained in Article 2(1) of Decree No. 109/XIV, defining the concept of non-punishable hastened medically assisted death, intended to be introduced into our legal system by the decree in question.
Our understanding in this regard was as proposed by the original rapporteur of the case, the first undersigned of this opinion, in the memorandum submitted for consideration by the panel of judges, in accordance with Article 58(2) of the Law governing the Constitutional Court (LTC). In expressing our disagreement we will therefore follow the essence of the reasoning contained in the aforementioned memorandum, to which we adhere. There are some shared references in this opinion and in the Ruling, as a common memory/legacy of that memorandum. These, however, in their substantial meaning, only permitted such agreement up to the point where the authors of this opinion diverged from the majority of the Court regarding the (in)compatibility between what is intended to be created by Decree No. 109/XIV (the legalisation of active euthanasia) and Article 24 of the CRP (cf. point 1.1.2. below).
1.1. Precisely because of this, and in order to understand the position defended in this dissenting opinion, we will introduce it within the decisional roadmap outlined by the Court, faced with the request for a preventive review of constitutionality presented by the President of the Republic, referring to certain norms included in Decree No. 109/XIV.
1.1.1. In the first instance, the Court was concerned with determining the exact object of the preventive review initiated, due to the particularities of the requester's claim.
In this regard the Constitutional Court in a point that achieved a majority decision to which the authors of his opinion concurred established that object in the exact terms transcribed below: [ ] the norm subject to primary assessment, as understood by the Court, is that contained in Article 2(1) of Decree No. 109/XIV, with all its prescriptive content (in particular that which ensues from paragraph 3 onwards), as a complete norm, in considering that non-punishable hastened medically assisted death is such when it is the personal decision and current, reiterated, sincere, free and informed will of a person of legal age in a state of intolerable suffering, with an extremely severe and permanent injury according to scientific consensus or an incurable and fatal illness, when performed or assisted by health professionals and brought about by means of a request that follows the clinical and legal procedure (provided for in the Decree) (point 12 of the Ruling).
1.1.2. Based on this wording, the Court then considered non-punishable hastened medically assisted death in the light of Article 24 of the CRP, as an exclusive parameter of consideration, concluding and attaining another majority that does not include us what it expressed in the following assertion (contained at the end of point 32): A persons vulnerability arising from the state of great suffering in which they finds themselves may create tension with respect to Article 24(1) of the Constitution, owing to the free and conscious will not to want to continue living in such circumstances. And the absolute and unequivocal protection of human life does not permit a satisfactory response to such tension, since it tends to sacrifice individual autonomy, which runs against the dignity of the person in suffering, converting their right to live into a duty of painful compliance. For this very reason, the democratic legislator is not prevented, on absolute or definitive constitutional grounds, from regulating hastened medically assisted death.
It is on this issue that the undersigned of this dissenting opinion firmly deviate from the majority understanding of the Court, expressing such disagreement herewith.
1.1.3. Finally, as regards a decision-making aspect of the ruling to which the authors of this opinion also subscribe in part, as another issue that the majority formed on the previous point failed to raise, the Court addressed [the] insufficient regulatory specificity of the concepts describing the criteria for accessing medically assisted death, called into question by the requester in light of the principle of criminal legality [ ] [and] the principle that laws must be determinable assessing those deficiencies with regard to the concepts, contained in Article 2(1) of Decree No. 109/XIV, [ ] in a state of intolerable suffering [ ] and [ ] an extremely severe and permanent injury according to scientific consensus [ ], considering that the latter demonstrates a [ ] manifest insufficiency of regulatory specificity in the respective legal hypothesis, thus rendering Article 2(1) of Decree No. 109/XIV, due to its vagueness, inadequate for regulating the conduct of its addressees in predictable and controllable terms, this part of the Decree violating [ ] the principle that laws must be determinable and [contravening] Article 165(1)(b) of the Constitution, due to its Article 24, interpreted in accordance with the principle of human dignity provided for in Article 1 of said Constitution[ ] (point 48 of the Ruling), this conclusion resulting in the operative part (Part III) of the Ruling in line with the determination of the reviews object as set out above which the undersigned of this opinion also endorse. The position to which we subscribe, and which will be explained below, implies, however, departing from the reasoning set out in points 41 to 43 of the Ruling.
Having examined the Courts decisional roadmap, we must now explain our opposition.
II.
2. The word euthanasia, although absent from the text of Decree No. 109/XIV (but which the requester nevertheless mentioned in the request), expresses the purpose of the law in question with complete accuracy (and faithfulness to the legislative thinking). By regulating euthanasia, what this really does is create a space of conditional legality with respect to its practice. In fact, although an effect or consequence of this legalisation the exemption from criminal punishability of the respective conduct of third parties involved is highlighted in the establishment of the laws object regulating the special conditions under which hastened medically assisted death is not punishable and amending the Criminal Code (Article 1) , a systematic reading of it and we need not even mention the obvious meaning of the underlying argument justifying it shows what the intention was: to create a legal framework to allow (through a special administrative authorisation procedure) the practice of so-called active euthanasia by health professionals. Thus, the fact that the final outcome arising from the patients request for hastened death is achieved through the self-administration of lethal drugs which produce that result, or through the third-party administration of those substances, is of little substantial relevance, since the two alternatives provided for in Articles 8(2) and 9(2) of the Decree, in the general framework that has been created, only allow the euthanasic act to be described in terms that create, from a practical point of view, a very subtle distinction (where, in the case of self-administration, the idea of assisting a suicide seems to be accentuated) that does little to address the substance of the problem that confronts us in this respect. Any of those ways of achieving death derives, in a completely overlapping set of situations, from the introduction into our legal system, as a trigger for death at ones own request (under the States control), of the prerequisites for such an event contained in Article 2 of Decree No. 109/XIV, the issue always being to invest the State ironically: by force of our right to individual autonomy and our human dignity with the power to establish the circumstances whereby somebody may become eligible to achieve the purpose of ending their life, which becomes a factor in legitimising the State, through a special procedure, to control the verification of those circumstances and to actively participate in the achievement of that result.
Therefore, the main objective of the law approved by Parliament is the option to legalise, under certain conditions, the practice of active euthanasia, the expression active euthanasia being used to denote cases where a physician or health professional duly qualified for this purpose but under medical supervision (in the words of Article 8(2) of the Decree) performs the last causal step directly leading to the patients death, administering lethal drugs, while also referring to without, strictly speaking, meaning something substantially different from euthanasia, or indeed from active euthanasia the situations in which these professionals carry out the penultimate causal step before death, leading to the self-administration of the lethal drug by the patient. In any of the cases although we can always play with words and concepts there is, on the part of the same professionals, control over the situation directly causing the death of the patient.
In terms of Criminal Law, the perspective of this situation, placing a consequence before the cause, merely expresses a deliberate bias in the approach to the central theme, euthanasia, itself, in fact, referred to in the Decree through an indirect expression hastened medically assisted death , which is not without ambiguity (perhaps intentional and due to some persuasive purpose). This is because there are clinical procedures in medical practice something that the intentional and direct causation of death, even by a doctor, is not that may involve, namely within a double effect scenario, some kind of hastening of death[1], but which in no way correspond to what is at issue in active euthanasia.
That is, assuming [ ] that the dogmatic construction of the concept of crime is ultimately [ ] the construction of the concept of punishable acts[2], euthanasia the act of producing, in a medical environment, the death of someone at their own request is regulated by affirming the exclusion, with regard to the situation that gives rise to it, of punishability (whoever kills another person shall be punished [ ], Article 131 of the Criminal Code), within the framework of an administrative procedure specifically designed to achieve this result, it being certain that the punishability of the act manifested in one of the possible results arising from such a procedure (authorising someones death at their own request), were it not for the option of legalising the practice of euthanasia under certain conditions, would remain, so to speak, within the scope of criminal law. Indeed, this would happen in privileged cases that are closely related to euthanasia or assisted suicide (two of the situations targeted by Article 27 of Decree No. 109/XIV), as is the case with homicide at the victims request (Article 134 of the Criminal Code), which clearly [reflects] the essential core of the criminal act defined as homicide (killing another person)[3]. Moreover, if in those cases, in the victims request (to be killed or helped to die), one can glimpse any expression of autonomy and self-determination in relation to death, the irrelevance of that consent as a means of justification (or exemption from unlawfulness) nevertheless reflects the victims concession to the protected value of human life, as an inalienable legal good in its entirety and which the legislator, under the pretext of the existence of this consent, this request, has inverted by itself defining the conditions for the practice of euthanasia under which human life becomes disposable, conditions which, thus defined, do not, strictly speaking, constitute an expression of any autonomy.
It is, therefore, the legalisation of euthanasia the legislative intention materialised in the approval of Decree No. 109/XIV, namely through Article 2 thereof that is the central issue confronting the inviolability of human life, expressed with particular emphasis in Article 24(1) of the CRP. And it is in this context that the legislative option expressed in this Decree should be addressed, from the outset.
2.1. The Right to life, mentioned in the heading of Article 24, was not created by the constitutional text and does not exist according to the degree of expression that its recognition assumes in said text, since we are dealing with the recognition or enshrinement of a pre-existing value. This expression which, nevertheless, is intentionally strong in the Constitution of the Portuguese Republic has the function of recognising something that precedes it, a fundamental principle of Law, a civilisation archetype[4], whose deep meaning projects broader evaluative dimensions than those directly suggested by the simple consideration of its exact normative content, when this is sought in isolation[5].
Moreover, this precedence of the intrinsic value of human life over its recognition or enshrinement in a constitutional text is immediately revealed by its inclusion, in the regulatory framework of international law, in the principle of jus cogens which, according to doctrine, is [ ] over and above the will or mutual will of those subject to international law [ ,] plays an eminent role in relation to all other principles and rules [and] has its own legal force, with the consequent effects on the subsistence of contrary rules and acts[6] and has [ ] a rank and status superior to those of all other rules of the international community [ ][7]. In terms of the right to life, the idea that [ ] jus cogens [ ] constitutes a particular (imperative) characteristic of certain rules, which may be of customary or conventional origin [ ][8] will therefore apply, mutatis mutandis, while it can also be said that the substantive norms of international human rights law that enshrine the right to life form part of the distinguished block of ius cogens norms[9].
2.1.1. Nevertheless, the constitutional legislator in 1975 the text of Article 24 (Article 25 up until 1982) remaining unchanged intended to highlight a particularly eminent and significant force human life is inviolable (a phrase in which we might discern a latent exclamation mark) , reinforced by the unconditional statement contained in paragraph 2 In no case shall there be the death penalty , seeking, in this way, to go beyond the traditional reference in Portuguese Constitutions since 1911 to the prohibition of the death penalty, and to avoid reducing the force of the statement contained in paragraph 1 by including what, together with war, has historically been identified, in Judeo-Christian thought, as an exception to the moral imperative not to kill[10].
What is important to bear in mind is that the wording of what would become Article 24(1) presented an appealing originality, which received the unanimous vote of the constituents[11], creating a formulation whose force allows us to consider the affirmation of inviolability as particularly eminent perhaps positioned, if any reference were sought in the Basic Law for the Federal Republic of Germany, somewhere midway between the intangibility (unantastbar) of human dignity[12] and the inviolability (unverletzlich) affirmed in Article 2(2) of that constitutional text[13]. Hence, greater proximity to the historical legislator (to the historical context behind the establishment of this provision) led J. J. Gomes Canotilho and Vital Moreira, in the 1st edition (1978) of the Annotated Constitution, to affirm the absolute nature of the protection over the right to life: [the] value of the right to life and the absolute nature of constitutional protection is reflected in the very fact that it prevails even in the face of the constitutional suspension of fundamental rights, in the event of a state of siege or state of emergency [ ][14]. And continues, in the most recent edition of the work, to uphold the description of the right to life as follows: [i]t is not [ ] merely a logical prius [ ], being rather [ ] materially and evaluatively[,] the most important good (residing, therefore, in ontological terms in having and being life, and not only on the ethical/deontological realm of values or on the legal axiological level of principles) in the catalogue of fundamental rights and in the legal and constitutional order as a whole. It is precisely for this reason that the right to life poses legal issues of crucial importance in human communities[15].
And, finally, this same special status afforded to Article 24 is underlined by Rui Medeiros and Jorge Pereira da Silva: [the] Portuguese Constitution does not limit itself, unlike other fundamental texts and the UDHR itself, to saying that everyone has the right to life, but rather affirms, in a much stronger and more expressive normative formulation, that human life is inviolable [emphasis in the original]. Article 24 plays an entirely unique role among fundamental rights. A member of the exclusive club of rights that cannot be suspended (Article 19(6)), the right to life is enshrined [ ] not only in its purely subjective dimension, as the first of the fundamental rights more than a right, freedom and guarantee, it forms the basic foundation of all the other fundamental rights but as an objective value and a fundamental principle of a rule of law founded on the dignity of the human person (Article 1)[16].
Human life, in that objective dimension, as a value whose protection is (not only enshrined on the basis of the individual will and interests of its subject, but also) enshrined on the basis of common values associated with it by reason of its nature as the supreme common good confirmed by the fact that it cannot be suspended calls for and legitimises, as far as the State is concerned, duties of respect and protection towards each life and in its relationship with other lives but only of life itself, those duties not functioning in relation to or permitting the right to death. As stated by J. J. Gomes Canotilho and Vital Moreira, The Constitution does not recognise any life with no life value, nor does it guarantee decisions about life itself[17].
As regards the ineligibility of suspending the right to life (as a result of the declaration of a state of siege or a state of emergency, like the one currently in force), the constitutional text clearly reveals the influence and axiological value of international law, in which, as the doctrine underlines, the right to life already forms part of the very reduced hard core of human rights common to three of the main conventions on the protection of human rights (all of them prior to the 1976 Constitution), as intangible rights that cannot be derogated from (or suspended) and which can therefore be elevated to the position of imperative rules of international law[18] [19].
2.2. This peculiar feature of the right to life, meaning it generally [presents itself] as an all-or-nothing right in the sense that partial attacks on life are not conceivable without the loss of that very life [ ], make it, by its very nature, [ ] averse to attempts at practical concordance and whose substance tends to coincide with its core essence [ ][20]. However, the fact that is intrinsically averse to attempts at relativising its content greatly reduces its capacity to accommodate to other values (which do not set their own intrinsic value against another value[21]). Hence, the duty of respect that is imposed on all and demanded of the legislator in particular has a significant natural tendency to absolutisation, producing a close similarity with this characteristic of some rights, even though it does not exactly correspond to it. The fact is that, as there is no constitutionally expressed or authorised possibility of limitation in this respect, the viability of having some room a narrow and very exceptional margin for discretion will be based, as a general rule, on an a posteriori appraisal of specific situations[22], However, despite this tendency to be immune to a priori assessment, it might at least be possible to consider concrete responses that involve some degree of generalisation as regards procedures anchored in strong moral intuitions that are congruent with the ethical imperative not to kill and with the higher status of the inviolability of human life, when these are placed (when tested) in conflicting situations that pose or require dilemmatic choices that impact on this highest value in some way. The central point of these questions, and of the answer that an ethic of respect for the intrinsic value of human life provides to them which, in short, distinguishes such situations from those in which the answer is euthanasia , lies in the ethically significant differentiation between the act of killing and the act of allowing to die, outside of any action intentionally directed to that result, within a framework of combating physical suffering.
2.2.1. Indeed, the fact that human life is inviolable does not preclude self-defence (as grounds for exempting unlawfulness), the legitimate exercise of which may threaten the value of human life, [ ] as a necessary means to repel actual and unlawful aggression against the legally protected interests of the agent or a third party (Articles 31(1), (2)(a) and 32 of the Criminal Code). The exercise of self-defence will not even be limited by a requirement of proportionality with regard to the goods sacrificed, with a substantial relativisation of this requirement contained in the final section of Article 337 of the Civil Code[23]. Self-defence, however, presupposes a real situation of serious interference (an aggression) with regard to a situation of legally protected safety, which does not have any significant similarities with the issue of euthanasia as far as the fundamental value of human life is concerned. Therefore, the two situations do not provide valid arguments for comparison, and do not imply any identical grounds, other than based on a totally artificial construction. Moreover, in terms of attempting to find similarities, self-defence is something that is basically ascertained in a posteriori assessments.
2.2.2. Nor do they provide the legislative option underlying Decree No. 109/XIV with any supporting argument as regards justifying restrictions to the inviolability of human life in the terms stated in Article 24(1) of the CRP, specific situations that postulate, or even demand, choices indeed dilemmas concerning the value of human life.
Medical activity, as recent times have amply demonstrated, gives rise to situations of this type, and we cannot say that the powerful meaning behind affirming the inviolability of human life exalting its value even is, in such special cases, being disregarded...
[ ]
These are very objective decisions. Of course, if we had unlimited intensive care resources, we might have broader admission criteria than in a situation where there are far fewer resources than candidates. This is why we have to be more selective. In any case, even if you had a hundred intensive care beds available, and there was a highly dependent patient, in an almost terminal stage of life, it was bad practice, therapeutic obstinacy even, to admit them to intensive care. It is one thing to prolong life, which is what we do. It is quite another to prolong death. For a patient nearing the end of life, a ventilator prolongs not life but death. They are completely dependent. They wont die today, but theyll die in a fortnight, in a state of total dependence. [...]
[interview with Dr António Sarmento, Director of the Infectious Diseases Department at the S. João Hospital][24].
..., this assertion (being compatible with the principle that human life is inviolable) helping us focus on the matter that concerns us, medical decisions guided by the principle of good practice, of not artificially prolonging life by means of futile therapies; therapeutic obstinacy, against any hope of real improvement in the patients situation; respect for the autonomy of the latter, as per their wishes primarily by means of advance health care directives, in particular in the form of a living will (cf. Article 1 of Law No. 25/2012, of 16 July) , not to be subjected to certain therapies, or to decide to suspend them, despite their being necessary to prolong life (such solutions show respect for the patients autonomy with regard to making decisions on the medical procedures[25] to which they wish to be subjected[26], accommodating to the maximum extent the values imposed on the legislator in this respect[27]); the selection of therapies for reducing pain and suffering, which might have the (secondary, indirect, unintentional but unavoidable) effect of shortening the patients life, in these cases the so-called Doctrine of Double Effect applies, distinguishing between seeking to cause a harmful result, and forecasting its possible occurrence, when the action is only guided by the quest for a beneficial effect[28].
2.2.3. On another level, as sometimes referenced in this debate, it is necessary to underline that the non-punishment of suicide (of attempted suicide) does not support cogent arguments as to the legalisation of euthanasia (or assisted suicide), there being an obvious and radical difference between the social intranscendence of the act of a person committing suicide and the transition to the level of social organisation. As Gustavo Zagrebelsky (former judge and President of the Constitutional Court of Italy) stated in an interview in 2011[29]: when someone kills him/herself, that is considered an act, a mere act that [ ] remains within their personal legal sphere. However, if another person comes into play, it transforms the situation into a social act, even if it involves only two people: the person who asks to die and the person who aids them. Even more so if an organisation, be it public or private, such as in Switzerland or the Netherlands, enters this process. [ ] If most suicide cases stem from injustice, depression or loneliness, suicide, as a social act, raises another question. Can society say, okay, you can get out of the way [va bene, togliti di mezzo], and we even help you do it? Is that not too easy? Is the states duty not the opposite: to give hope to all? The first right of every individual is to be able to live a meaningful life, and society has the duty to create the conditions. [ ] Suicide as an individual act is one thing; socially organised suicide is another. Society, with its structures, has the duty to care, if possible; if not possible, it at least has the duty to alleviate suffering. [ ][30].
2.3. What we find then, at the heart of the legislative option established by Decree No. 109/XIV, is the creation of a general procedure for processing requests for medically assisted death, according to which a group of people those who meet the conditions established in Article 2(1) become eligible for the practice of euthanasia under the protection of the State. We characterise this group of people as those who, in contrast to other people, have this option due to the procedure created by the Legislator.
Having a particular option and we use the expression here in the sense of a variable subject to someones control that can therefore affect, by shaping them in a particular way, the decisions made by that person[31] , i.e., having alternatives, creates different possibilities for conducting a decision-making process, ultimately creating a (different) architecture of choice for those who have access to them, with all that this can imply, whether we consider it advantageous or not.
In effect, [o]ffering someone an alternative to the status quo makes two outcomes possible for him, but neither of them is the outcome that was possible before. He can now choose the status quo or choose the alternative, but he can no longer have the status quo without choosing it. [...][32]. And, having only what corresponds to the status quo as a standard as fixed data that acts as if by default may, in certain cases, prove advantageous, avoiding a whole new problem arising from the introduction of harmful (dangerous, decision-making polluting) variables into the decision-making process. Somewhat paradoxically, [h]aving choices can thus deprive one of desirable outcomes whose desirability depends on their being unchosen [...] in short, once one has been offered a problematic choice one's situation has already been altered for the worse, and choosing what's best cannot remedy the harm that one has already suffered. Choosing what's best in these cases is simply a way of cutting one's losses[33].
2.3.1. The question is: what does this imply when the option (the new option) made available to someone (from the universe of eligible people, within the framework of Decree No. 109/XIV) is euthanasia or assisted suicide?
For what amounts to a response, we refer to an observation by Thomas Schelling, in which he illustrates the paradox of strategic advantage: that one's position can be painfully weakened by new legal powers is poignantly suggested by one of the arguments raised against legalizing euthanasia, granting hopeless incurables the right to authorize their own removal: What ... would be the effect on old people with incurable infirmities who are already suspicious that those around them want to get rid of them? [ ][34]. Avoiding the crudeness of the final question, we can say that the option of death itself (legally framed, socially organised), forming part of the range of available alternatives, suddenly presents itself when weighing the alternatives that the challenges of serious illness pose to the patient. And this will happen, both for those who (on paper, in somewhat idealised fashion, as constructed by some constitutional jurisdictions in this respect) define this weighing as an instance of freedom and self-determination in the conduct of their lives, and for those who, in the harsh reality of the end of life, or dependency with no apparent hope, actually ponder, and who are really motivated by, the anguish and despair wrought on them by external pressures. Indeed, transposing the situation above onto the end-of-life decision-making process of those who find themselves in a situation of great physical and psychological vulnerability in a state of intolerable suffering, with an extremely severe and permanent injury according to scientific consensus or an incurable and fatal illness , there is no guarantee, for those who see things in these terms, of the advantage of a free choice of the respect that is due to a free choice allowing such a drastic relativisation to the point of intolerability of the inviolability of human life, that the protective barrier erected by Article 24 of the CRP around the value of life ultimately falls.
The problem is that this relativisation of human life the diminishing of its intrinsic value often operates insidiously, creating, in situations of great dependency, a kind of subliminal burden to justify ones own existence [t]he burden of justifying ones existence might make existence unbearable and hence unjustifiable35]. Now, and this is the central problem which confronts us with the legal regulation of death upon request, [ ] to offer the option of dying [we are talking about seriously ill and dependent people] may be to give people new reasons for dying[36]. Moreover, looking at the procedure created by Decree No. 109/XIV, the question remains pertinent: Who can know for sure whether or not the written request [to hasten death] is the result of resigned acquiescence to felt desires by relatives or others? How does one make sure that the request is not the result of remediable depression or based on an unrealistic view of the diagnosis or prognosis? Such questions may arise under many circumstances [ we will rely on those involved being accurate in their responses throughout the process in terms of perceiving reality ]; they are gravest of all when a patient's death hinges on the answers[37].
But is palliative care (Article 6 of Law No. 31/2018, of 18 July) not the appropriate response to these situations, and not a mere hypothetical choice (Article 3(5) of the Decree) in a kind of catalogue in which the States option to organise death upon request appears to stand out? And is the same not true of palliative sedation (Article 8 of Law No. 31/2018)? It is the firm conviction of the signatories to this opinion, grounded in the right to life itself and the duties of protection that flow from it, that the answer to any of these questions can only be affirmative. As such, a positive response would always seem, from a hypothetical perspective of allowing rights to conflict or weighting different values which the inalienability of human life and its corresponding right taken as a whole, in any case, does not provoke or permit the only balanced solution which, by preventing the irreversible elimination of the legal good in question, would still place the emphasis on life, alleviating pain and suffering, whether physical or psychological, even if a harmful result were to occur the natural but not hastened event of death. In any case, what will never be an alternative primarily because the legislator has no constitutionally valid authority to this end is authorising the State to establish criteria, dubbed medical criteria, to determine when a life has reached a sufficient point of physical deterioration to make it reasonable to comply with an individuals request to be killed, leading to its irreversible elimination. If this represents a new paradigm of freedom and individual autonomy, it is paradoxical that it manifests itself in this kind of apotheosis of State paternalism, created and proceduralised by Decree No. 109/XIV.
2.4. In this context which is the existence of a legal framework for death upon request, concerning a group defined by eligibility criteria established in accordance with Article 2(1) of Decree No. 109/XIV it makes sense, in addition, to invoke the reference to human dignity (Article 1 of the CRP), as a guiding principle leading to other constitutional values. What is required in this sense is [ ] respect for autonomy, but also concern for vulnerability [ ][38]. Now, since the manifestation of a decision to subject oneself to a procedure of hastened medically assisted death is inseparable from the effects of the medical conditions (of a clinical situation prognosis, in the words of Article 5(1) of the Decree) that legally frame that request here, surely, [ ] the fear of dependency and loss of control, of incontinence and dementia, in short, [...] the fear of disability [ ] [w]hile this desire is expressed as a wish to die with dignity, it implies that living in certain conditions is, per se, indignity[39]. This is, in fact, the signal that the State sends out to all.
Now, the realm of individual decision in which this issue resides is one of subjective motivations where multiple reasons intervene, many of them a source of unacceptable disregard for the idea that human life is inviolable. Added to all this, however, is the signal that the States actions clearly express with regard to the disabled condition, the vulnerability it entails and the special protection it requires. Some may say that this is a matter for other legislation, perhaps the responsibility of another department. However, what is notable about the option at issue here is precisely this powerful signal that it gives, creating a class of people whose impoverished physical and psychological condition makes them eligible, within a framework of State action, for choosing their own death. The inclusion of those people, namely those with an extremely severe and permanent injury according to scientific consensus or an incurable and fatal illness, within the notion of people with disability cannot be ruled out, making them eligible to hasten their own death[40].
Therefore, in addition to the direct offence against Article 24(1) of the CRP, this situation also constitutes, pursuant to Article 2(1) of Decree No. 109/XIV, a distortion of the principle of human dignity, by reference to Articles 1(1) and 13(1) of the CRP.
2.5. Allowing euthanasia and particularly allowing it in these terms leads ineluctably to the following series of assertions characterising a new paradigm of coexistence with the principle that human life is inviolable, as arising from Article 24(1) of the CRP: (A) The right to life includes the right not to be killed; (B) This right involves, however, as protected options for the subject, the option to live and the option to die, with which (in the case of the second option, under conditions set by the State) others may not legitimately interfere; (C) Thus, if someone decides to die, they are renouncing, within the framework of their valid options, the right to life. And by renouncing this right this is the central problem created by Decree No. 109/XIV they are releasing others (specifically they are releasing the State) from the duty not to kill them. And the State is removing the prohibition/punishability of killing in this situation[41].
Moving decisively away from that paradigm, the undersigned of this opinion believe that there are matters that are beyond the reach of majorities[42], which is the case with legalising euthanasia, since the legislator, as we mentioned previously, does not have constitutional authority to that end. Hence, we consider that Article 2(1) of Decree No. 109/XIV violates Article 24(1) of the Constitution of the Portuguese Republic (and we also consider that it violates it, in the terms indicated in 2.4, above, in conjunction with Articles 1 and 13(1)).
In this respect we diverge, as mentioned in point 1.1.2, from the reasoning behind the Ruling.
Maria José Rangel de Mesquita - Maria de Fátima Mata-Mouros - Lino Rodrigues Ribeiro - José António Teles Pereira
EXPLANATION OF VOTE
I voted in this Ruling essentially for the following reasons:
1. To answer the question of whether or not the non-punishable hastened medically assisted death regime established in the Decree is compatible with Article 24(1) of the Constitution, taken for this purpose as a criterion measuring the extent of the freedom to limit the right to life, interpreted in accordance with the principle of human dignity, the first premise from which I depart is based on the principle of constitutional unity. In other words, in the understanding that since the Constitution represents a unified ordering of the political and social life of a given state community, each of its norms should be viewed not exclusively in isolation, detached from the unity in which it is inscribed or isolated within it, but as an integral part of a set of elements in reciprocal interaction and dependence, from whose overall action derives and can only derive from it the concrete configuration of the collectivity that is given (and guaranteed) by the legal and constitutional order (in this sense, Konrad Hesse, Escritos de Derecho Constitucional (Selección), Centro de Estudios Constitucionales, Madrid, 1983, pp. 18 and 48).
The second premise is based on the idea that the Constitution, while a unit, is far from being just any unit. It is a unit which, expressing a covenant of common life between the members of the community, is based on the principle of human dignity, this being the axiological reference point which relates and brings together, as parts of the whole, the elements that make up that whole, giving them their own teleological and unifying meaning. A meaning that, based on respect, not only for the dignity inherent in the condition of belonging to the human species, but also (and decisively) for the human dignity of the person/being, has, in a democratic and open society, a necessarily comprehensive and inclusive propensity, expressing a constitutional consensus in which the various currents and conventions of a reasonable pluralism in our time can be reflected (Jorge Reis Novais, A dignidade da Pessoa Humana, Volume I., 2015, Almedina, p. 25).
The third premise which is in fact a logical consequence of the previous two concerns the role that the principle of human dignity plays in the interpretation of constitutional provisions. Insofar as it is the element around which this unity is composed and assembled, the principle of human dignity plays a role in this interpretation: i) as an antecedent (or prius), in the sense that the interpretation of any constitutional norm must always be directed towards the maximum realisation of its whole and this is based on human dignity; and ii) as a consequent (or posterius), in the sense that if the axiological unity of the Constitution is afforded by the principle of human dignity, it is through the interpretation of each constitutional provision as an integral element of this unity, in its relationship of interdependence with the others, that the principle of human dignity reveals itself, materialises and becomes concrete.
In relation to the central issue mentioned in the request, the three premises set out above allow the following first conclusion to be reached: without prejudice to the special normative force inherent in the proclamation that human life is inviolable, Article 24(1) of the Constitution cannot be interpreted in isolation, detached and segregated from the unity in which it is incorporated, in such a way that in that formulation one must seek (and can find), particularly based on arguments drawn from the appropriate respect for human dignity, both the principle and the purpose of the response as to whether the legal and constitutional order admits or proscribes any non-punishable hastened medically assisted death regime, namely that which is provided for and specified in the Decree. Although it presupposes, from an ontological point of view, the inviolability of human life that underlies it, the dignity of the person/being, to the very extent that it remains inseparable from the concept of the individual as a moral and autonomous subject, is not confined to it, particularly to the extent that it can support an invariably binary type of response to the issue of whether, constitutionally, the criminal protection of human life can be withdrawn when faced with any forms of consensual self-injury and consensual injury by a third party. Based on the ethical autonomy and intrinsic value of the individual as an end in and of themselves, the principle of human dignity presupposes recognising an arena of decision-making freedom inherent in the conception of the individual as an intellectually and morally capable subject, the right to individual self-determination and to freely shape ones life being a direct expression of this, which the Constitution embraces in Article 26 as a projection of the fundamental right to the development of personality. It is a right intended to ensure that each individual is able to determine their own path on an ongoing basis by making their own choices and thereby shaping their own destiny. It therefore encompasses an individuals right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence (ECtHR case law cited in point 28 of the Ruling).
2. By stating that human life is inviolable, Article 24(1) of the Constitution binds the State in two ways: negatively, by forcing it to prohibit aggression or interference; positively, by requiring it to create and maintain the de facto and de jure preconditions necessary to defend or fulfil the corresponding fundamental right. Since the constitutional proclamation of the inviolability of human life includes the right not to be killed both by the State and by other members of the community, every citizen shall be entitled to have the State protect their life against arbitrary interference by third parties. Fulfilment of the constitutional imperative to protect human life obliges the State to take both factual and regulatory actions, the latter including protection by means of the editing of criminal law norms or the creation of organisational and procedural norms (Robert Alexy, Teoria dos Direitos Fundamentais, translated by Virgílio Afonso da Silva, Malheiros Editores, 2008, pp. 196 et seq. and 442). Although the choice of the type of protection to be afforded is, in practice, something which in the first place, to a large extent or in essence rests with the [ordinary] legislator (idem, p. 463, referring to the wording repeatedly adopted by the Bundesverfassungsgericht), the legislators margin of discretion is always exercised within a kind of framework, the maximum extent of which is determined by the prohibition of excessive protection measured by the level of impact the chosen protection instrument has on a certain (other) fundamental right and whose minimum scope will be the prohibition of deficient or insufficient protection.
As regards the criminal protection of human life against forms of consensual self-injury and consensual injury by a third party, the maximum extent with respect to prohibiting excess is determined by the right to individual self-determination and to freely shape ones life. The first function that this limitation performs is to prevent the legislator from interpreting its constitutional mandate to protect and promote human life in such a radical way that it could lead to the elimination of any scope to exercise the freedom and capacity for individual self-determination or, as stated in the Ruling, result in suppressing the autonomy of each human being to make and implement the decisions most central to their own existence. It follows from this that the legislator cannot resort to promotion and protection mechanisms that are so oriented towards defending human life while opposing the self-determined will of its subject that, ultimately, there is a disconnect between the protected life and the protection of its subject and, in the relationship between the former and the latter, those mechanisms end up converting or reducing the person into an instrument for the preservation of life as an abstract value (Constitutional Court of Colombia, Sentencia C-239/97). The second function of the maximum limit relates to the causal or concurrent intervention of third parties in the process of implementing the decision to hasten death. If the right to self-determination inherent in considering a person a moral and autonomous subject runs counter to the idea that each individual must wait resignedly for the natural end to come, the line drawn on this basis not only excludes the possibility of punishment for acts of renunciation carried out by the person in question who has the inalienable right to shape their life as they wish, as and when they wish (Jorge de Figueiredo Dias, A ajuda à morte: uma consideração jurídico-penal in Revista de Legislação e de Jurisprudência, no. 137, Year 2007-2008, no. 3949 (March-April 2008), pp. 202 et seq., p. 205) , it also creates space for acknowledging situations in which, at least because an actual right to die with dignity is at stake, the human life can no longer be protected by restricting possibilities of implementing the decision to hasten its end, as deriving from the criminal prohibition of all types of consent-based intervention by third parties.
If the primary function of the maximum limit imposed by the right to self-determination, as a direct expression of human dignity, is to prohibit the legislator, as we have seen, from a transpersonalist understanding of the constitutional mandate to protect human life which ultimately legitimises the criminalisation of attempted suicide itself the minimum limit of the framework of legislative discretion, traced directly from Article 24 of the Constitution, has the effect of ruling out the opposite interpretation. That is, the interpretation that the decision by which each individual chooses to end their life belongs to them in such exclusive, sovereign and absolute terms that the State should purely and simply refrain from creating any kind of obstacle or practical constraint on its implementation, especially those related to restricting the free action of anyone who offers to bring about or help bring about the death of another following a free, informed and sincere request. By declaring that human life is inviolable, the Constitution not only enshrines the right to life with the force befitting its status as the basic foundation of all the other fundamental rights (point 30 of the Ruling), but also binds the State to a permanent commitment to defend it in terms that can be considered opposed to a legal order giving each member of the community permission to bring about or collaborate in the death of another, if deemed capable based on a sincere, reiterated and express request. It is true that this commitment is based on the protection and promotion of human life as a good, as an objective value and structuring principle of the Rule of Law, but it is ultimately based on the concept of the person not only as a Dasein the isolated and solitary self but also as a being-with-others someone who, as a child, father/mother, brother/sister, friend and/or partner, also exists and lives in others. It is based on this commitment, which requires the legislator to adopt a legal system of protection that is geared towards life and prevents it from adopting a neutral stance, that the minimum limit of legislative discretion is set, as imposed by the prohibition of deficient or insufficient protection with respect to consensual self-injury and consensual injury by a third party.
In the following points, I will try to explain how, in my opinion, these two limits, minimum and maximum, are linked and, in particular, the judgement to which they should lead in view of the non-punishable hastened medically assisted death regime contained in the Decree.
3. To ask which legal good is protected through the criminalisation of homicide at the victims request (Article 134 of the Criminal Code) and material assistance to suicide (Article 135 of the same Code) is the same as asking why consent is ineffective as a justification in the context of crimes against life: regardless of its firmness, its degree of conviction or the level of reflection underlying it, consent constitutes, to date, a condition without any kind of projection or relevance in the scheme of mitigating responsibility for harming the right to life.
The first reason for this is related to the objective impossibility, even through the requirement of qualified consent that is, consent expressed in a formal and reiterated request , of recognising in the decision of the person seeking the collaboration of a third party to hasten the end of their life, a degree of truth, resolution and firmness that is congruent with the irreversibility of the consented result. Given that the decision to end ones life is most often determined by a psychologically relevant condition most frequently depression which impairs the capacity to consent to harm (Bundesverfassungsgericht, ruling of 26 February 2020, paragraph 245), it can be said that the criminalisation of both murder at the victims request and of material assistance to suicide, are based, although to a different extent, on the legal presumption of rashness and lack of subjective maturity on the part of the respective subject (in this sense, even if only regarding the crime of homicide at the victims request, Manuel da Costa Andrade, Comentário ao artigo 134.º, § 15, p. 104, in Figueiredo Dias (dir.), Comentário Conimbricense do Código Penal, volume I, 2nd ed, Coimbra Editora, Coimbra, 2012). Although such a presumption is stronger in the first case than in the second, both crimes derive from the purpose of preventing the (abstract) danger of a hasty and rash decision to terminate life (idem, Comentário ao artigo 135.º, § 12, p. 139).
The second reason has to do with the very commitment to which the Constitution binds the legislator, namely to protect and promote human life, even in the face of reasoned and considered decisions. Even if it were possible, in a decision to hasten death motivated by the mere tiredness of living it, to identify, with maximum infallibility, a level of determination congruent with the irreversibility of the result produced by its implementation, the material legitimacy of criminalising homicide at the victims request and material assistance to suicide would still be affirmed by reference to the value of human life, maintaining its indispensable axiological reference point in its connection to this good. From the point of view of the need for criminal protection, the purpose behind criminally prohibiting both the termination of another persons life and collaborating in their suicide could still be discerned in the reduced possibilities for implementing the decision to hasten the end, as derived from excluding free causal or collaborative action by third parties.
4. From a criminal law point of view, the main novelty of the regime for non-punishable hastened medically assisted death consists in attributing efficacy to consent within the scope of crimes against life. If consent personal decision has hitherto always and in all cases been an irrelevant condition in terms of justifying conduct or excluding punishability, the regime set out in the Decree grants it efficacy under the conditions it defines for that purpose and for the verification of which, as explained in the Ruling, its own formal investigation procedure is established. It is therefore a conditional efficacy, insofar as it depends on the verification of a complex and connected set of conditions, which must be attested at the time and in the manner required by the Decree, pursuant to the combined medical model of non-punishable hastened death and an ex ante control mechanism based on intervention by a public entity.
The material circumstances capable of converting the right to life subjects consent into a limitation of the criminal liability to which terminating life upon request and materially assisting suicide remain subject are defined on the basis of a state of intolerable suffering resulting from an extremely severe and permanent injury according to scientific consensus or an incurable and fatal illness. Once both circumstances are verified under the terms established in the Decree, the legislator removes the criminal prohibition to which the causal or auxiliary intervention by the advising doctor and other health professionals would otherwise be subject and, granting total primacy to the decision made by the patient, as long as it is current and reiterated, sincere, free and informed, allows the end of their life to be hastened, at the time, place and in the manner of their choice, in a controlled and suitable environment, thus making recourse to third-party collaboration possible for those who, due to the unbearable nature of their suffering, see the said hastening as a preferable option to the pain of living on in irreversibly painful and unrelieved circumstances.
The reason behind the suppression, in this context, of the criminal law commandment of not killing under any circumstances provides, in my view, the grounds for the response to the question of whether withdrawing criminal protection over human life in the circumstances established in the Decree, materialised in the regulation (and consequent legalisation) of the practice of hastening death within the scope of an administrative authorisation and implementation procedure instituted and supervised by the State, places infra-constitutional law, in its overall operation, below the threshold set by the principle prohibiting insufficient protection.
If criminalising homicide at the victims request and material assistance to suicide has as its root, as we have seen, both a precaution against the risk of hasty end-of-life decisions and a commitment to protecting human life, in the sense explained above, proof of a state of extreme suffering due to an irreversible and severe clinical condition not only constitutes a legitimate basis to remove plausibility from the legal presumption of recklessness and lack of subjective maturity that underlies both crimes making it possible to recognise in hastening death the result of a responsible exercise of the patients self-determined will but also constitutes sufficient basis for the promotion and protection of human life to no longer be conditional upon, or even measured by the dimension of the individual as a being-with-others, in order to be guided fundamentally by the dimension of the person as a Dasein, becoming essentially dependent on the decision that the latter, as an autonomous and morally capable subject, freely makes with respect to their circumstances.
It is clear that suppressing criminal liability on the part of the advising doctor and other health professionals for the act that causes or helps to cause the death of the patient, creates a space that is free of criminal law in the area of consensual self-injury and consensual injury by a third party. But it does not follow that this gives rise to a legal vacuum. According to the prior control procedure on which the Decrees regime is based which is in line with the position of the UN Human Rights Committee referred to in the Ruling the protection of human life is ensured through the set of organisational and procedural norms that determine the conditions under which hastened medically assisted death can take place, establish when and how it can be verified and regulate the actions of the doctor or health professional implementing the patients decision by providing lethal drugs for self-administration or administration by a third party. In view of their function, all these rules are subject, as stated in the Ruling, to particular requirements of determinability, and must contain a degree of specificity consistent with both the special value attached to human life and the irreversibility of the result to which it may be subjected by means of a self-determined decision by the patient. It is due to this requirement for determinability arising from the principle of the rule of law, which is particularly acute in this area, that I share the majoritys position and believe it is not satisfied by the concept of extremely severe and permanent injury according to scientific consensus. Given that it is not only the intolerable suffering caused by an incurable and fatal illness that may be subject to a different consideration with respect to hastening the end of life in view of the unlawfulness that continues to be expressed in the crimes of homicide at the victims request and material assistance to suicide, I also believe that it is the legislators duty to specify, as much as possible, the universe of non-lethal clinical conditions that may be placed on the same level, namely by reference to the type and level of incapacitation they produce and the degree of dependence or loss of autonomy they impose on the patient, this being all the more true since, according to the model of ex ante control adopted in the Decree, these are norms that establish prerequisites for action and not only criteria for determining liability, which is always retrospective.
In this context, moreover, in which the possibility of non-punishable hastened medically assisted death is defined on the basis of a serious clinical condition, it is not, in my opinion, a crucial aspect that the withdrawal of criminal protection over human life under the conditions established in the Decree is carried out through the suppression of both the crimes of material aid to suicide and homicide at the victims request. Despite the fact that between one act and another there is a general difference based on control over the act that immediately and irreversibly produces death (point 17 of the Ruling), the truth is that, in a context of non-punishable hastened medically assisted death which has as a reference point the state of intolerable suffering brought on by a certain serious medical condition and which ensures, through the guarantees inherent to the procedure, that the decision to end ones life is the true and genuine expression of the patients informed self-determination, any distinction intended to be introduced on this basis would have no other meaning than that of subjecting the person who has decided to end their life to the final ordeal of being the material perpetrator of their own death.
5. In the previous points I have tried to explain the reasons why a hastened medically assisted death regime, based on the unbearable nature of the suffering caused by a serious medical condition, involving a procedure combining a medical verification and implementation model with a system of ex ante control, which is able to ensure the patient makes informed use of their self-determination and whose specificity has a degree of determinability compatible with the special nature of the right to life, as a fundamental good underlying all other fundamental rights, is not incompatible with the minimum threshold for protecting human life outlined in Article 24 of the Constitution.
On this last point, I will try to explain why I believe that, in the case of a person with a fatal terminal illness a situation that the Ruling singles out and highlights such a regime is not only constitutionally viable, but also constitutionally imperative.
For the patient in the long and painful process of approaching death, the decision on how to face the end of their life assumes paramount importance. In this case, recognising the right to choose the moment at which death should take place, by means of medical acts, and, above all, in whose company it should take place, is the difference between subjecting the patient to waiting resignedly for the moment the end suddenly occurs, always uncertain and most often alone, or allowing them to face and meet this end with the peace and support offered only by the tender and close presence of a familiar person. In short, it means recognising that the person who is fatally ill has the right to give personal meaning to the end of their life and, in this unique way, to respect that persons eminent dignity right to the end.
Joana Fernandes Costa
EXPLANATION OF VOTE
Dissenting, for the following fundamental reasons:
1. In our view, the Ruling is not in alignment with the object of the request.
Our position differs from that of the majority, firstly, as regards the meaning and extent of the Courts pronouncement, considering the delineation of the claim made in the initial request.
In the context of the present request for preventive review, the object of the case was delineated in the request addressed to the Constitutional Court, in which the President of the Republic stated that he assumed the choice made by the legislator, which is responsible, under the Constitution, for permit[ting] or prohibit[ing] euthanasia according to the social consensus at any given time, would be sound. In this sense, by issuing a decision, as per sub-paragraph a) of the Ruling, on the unconstitutionality of the whole of the norm contained in Article 2(1) of Decree No. 109/XIV of the Assembly of the Republic, the Court is expressing a position of principle that, in our view, goes beyond the scope of the object of the case defined in the initial request submitted.
To this end, the Court, on the grounds that the request identifies the norms which the Court is asked to assess in non unequivocal terms and that the reference in the grounds for the request only to certain parts of the norm contained in that Article is not in itself sufficiently clear or precise, considered that the structural completeness of the norm corresponds, by force of the prescriptive meaning it contains, to a teleological unity that prevents a segmentation, and therefore broadened the wording of the legal norm under analysis to the norm contained in Article 2(1) of Decree No. 109/XIV, with all its prescriptive content (in particular that which ensues from paragraph 3 onwards), as a complete norm. On the basis of this interpretation, it was considered legitimate to assess the conformity of the norms to be primarily assessed with the constitutional parameter of the right to life, enshrined in Article 24(1) of the CRP.
It is recalled that Article 2(1) of Decree No. 109/XIV of the Assembly of the Republic considers non-punishable hastened medically assisted death [ ] when it is the personal decision and current, reiterated, sincere, free and informed will of a person of legal age in a state of intolerable suffering, with an extremely severe and permanent injury according to scientific consensus or an incurable and fatal illness, when performed or assisted by health professionals. This normative hypothesis has several dimensions, including subjective requirements characteristics of will and also objective requirements (the prerequisites for authorisation). For a health professional bringing about or aiding hastened death to be exempt from punishment depends on the so-called objective elements being verified and only two segments of this objective normative dimension were questioned by the President of the Republic. Contrary to the view expressed in the Ruling, we consider that these elements are logically and legally separable splittable from the whole that makes up the norm. Thus, faced with the request submitted, the Court, clearly not being a mere automaton of syllogisms, must reveal an adequate understanding of its specific place in the legal and constitutional system, restricting itself to comparing the questioned legislative solution against the Constitution, particularly in the case of a preventive abstract review of constitutionality. Which, in our view, is perfectly possible.
In this respect, the Ruling states that narrowing down the request would mean that the dividing line between the unlawful/lawful sphere would not only become different namely due to the prerequisite or criterion that would have been eliminated but, above all, would follow a different teleology. Just as it would be inconceivable in the context of an abstract ex post facto review, in the event of a positive ruling of partial unconstitutionality concerning only one of these criteria or conditions, for the norm to continue to be in force without the criterion that was then deemed unconstitutional with the Court itself, through its ruling, ultimately redrawing a new boundary and thus a new norm , in this preventive review, the assessment to be made by the Court cannot fail to consider the norm in its teleological unity and the consequent inseparable union of the elements that make up its hypothesis. However, in our view, not only did the requester actually want the dividing line to be different (he wanted to question part of the how, but not the if), stating so clearly, but also the parallel with an abstract ex post facto review of constitutionality does not even seem appropriate. In a preventive review, a judgement of unconstitutionality always implies, as per Article 279(1) of the CRP, a veto (in this case) by the President of the Republic. The norms in the Decree will not enter into force, therefore, without being re-examined by the legislator, with the norm judged unconstitutional being eliminated or reconfirmed by a two-thirds majority of the Members of the Assembly.
To sum up: where the President of the Republic explicitly stated that the request does not seek to address the question of whether euthanasia, as a concept, is or is not in conformity with the Constitution, having expressly and consciously restricted the evaluation requested from this Court to the [question of] whether the specific regulation of medically assisted death implemented by the legislator in this Decree is in conformity with the Constitution, in a matter that lies at the core of citizens rights, freedoms and guarantees, as it involves the right to life and the freedom to limit it, within a framework of human dignity, the Court elected to go much further. Having been asked to limit itself to examining concrete aspects of the legal regime approved by the democratic legislator, the Court decided to carry out a preliminary analysis of the constitutionality of euthanasia or of assisted suicide, considered in and of themselves. It should not, and need not, have done so. It should not, because a proper understanding of what is required by the principle that the Court should respect the object of the request, as well as the doctrine of the separation of powers, leads to that conclusion. What is more, it did not need to take that step, since, although not being master of the request, the Court is master of the parameter. Evidently, the parametric dimensions constituted by the right to life, to the free development of personality, to personal autonomy and freedom, could always be mobilised for the basis of the decision, even if the requester has not invoked them in the request.
2. In our view, the Ruling misinterprets the norm in Article 24(1) of the CRP (human life is inviolable).
It is important to highlight what is, in spite of everything, and in our view, the most important jurisprudential line arising from this judgement: that which sustains the argument that a legal regime regulating the scope of medically assisted death is not unconstitutional, given the parameter of Article 24(1) of the CRP, considered in isolation. In other words, according to the present decision, a priori and in the abstract, the axiological and legal/constitutional demands imposed by that norm do not prevent the democratic legislator from legalising hastened medically assisted death and introducing to the legal order grounds for excluding criminal liability in the case of assisted suicide or homicide at the victims request; we agree wholeheartedly with this conclusion. We believe that it could not be otherwise, for the reasons presented below, and that, for this reason, when admitting the possibility (the if), the Constitutional Court should not transform it into a mere theoretical hypothesis through such a strict judgement about the procedure (the how) that it becomes inoperable in the practical domain.
However, in our view, the Ruling misinterprets the norm in Article 24(1) of the CRP (human life is inviolable), which protects human life and its inherent dignity, in all forms and at all stages of a persons life journey, as a subject of rights. Let us look at why.
2.1 The Ruling's interpretation of the constitutional status of the right to life and of life as a constitutionally protected value is erroneous, firstly because it diverges substantially from common constitutional standards in this area in Europe (and beyond). In fact, it is difficult to understand the premise, implicit in the decision, according to which our legal and constitutional order irremediably diverges from several of its counterparts, since the latter recognise a fundamental right to suicide, which is set aside, in absolute terms, in the Portuguese case, by the recognition of life as an objective and intangible value to be protected by the State. We disagree. There is no substantial difference between the constitutional basis of the rights to life, free development of personality and self-determination and personal liberty, enshrined in the CRP, and the normative provisions on which jurisprudential specifications and readings very different from the one embraced by the majority are based. To argue the opposite basing a different paradigm on the letter of the constitutional norm is, in our view, equivalent to recognising that it would then be enough to amend the specific constitutional text in the CRP to make the dimension of the subjective legal right of life explicit (replacing the norm in force with one stating that everyone has the right to life), to the detriment of its axiological/evaluative dimension, so that some of the objections raised by the majority to the norms questioned in the present case might be overcome. This is not the case. What is happening is that, in a difficult and sensitive matter such as this, with ethical, philosophical and religious implications, and in which human life and death, freedom, dignity and solidarity are at stake, different worldviews lead to opposing readings of the constitutional norms. However, we believe that our view is more dogmatically sound, and that it fits better within what is now the comparative law landscape. This is all the more important since, as noted above, what is at stake is not some constitutional idiosyncrasy, the result of a particular time and place and an inescapable feature of a distinct constitutional identity, but the touchstones of a shared constitutional heritage, the fundamental rights that underpin the pillar of a common European constitutional law, in the Häberlian sense.
A digression into comparative law reveals, moreover, a clear and striking trend with respect to the issues dealt with here. It also shows a growing convergence, the fruit of decades of reflection and jurisprudential dialogue (see the significant ECtHR case law in this regard), as well as evolving social conceptions of life, end of life, and quality of life, and also of death and the dying process. These reflections and developments have been driven by the need for a legal/regulatory response on the time and manner of death, particularly in situations where scientific and technological developments have created possibilities for prolonging life that until recently were made impossible by the laws of nature. This does not imply any lessening of the importance or the ethical, philosophical, political, social and legal meaning of human existence. It does imply a certain understanding of what it means to be a person and of the central importance of the self-determination of individual will and consent in shaping the path between life and death.
Let us then recall the issues diverse among themselves, but with a common thread with which different European constitutional courts have been confronted and which lead to exactly the opposite of the problem that this Constitutional Court is facing today. Whereas here the question is whether the if (taking into account a broadening of the object) and the how (the problem on which the requesters request is centred) of the legalisation (through the introduction of justifications for certain medical conduct, in the criminal field, and of a proceduralisation of the public expression of the will of the patient in intolerable suffering, which in the normative system established by the Decree act as sides of the same coin), decided by the democratic legislator, of medically assisted death (in the modalities of assisted suicide and homicide at the victim's request) are in conformity with the Constitution, in other geographies the question raised regards whether the total criminalisation of assisted suicide is admissible, in light of the respective constitutions. The German, Austrian and Italian constitutional courts have answered that question in the negative. They did so with different scopes and different rationales on important points. However, this does not justify the Rulings dismissal, without further consideration, of the relevance of establishing common standards in this area. Firstly, because the Portuguese legislators decision to maintain the rule criminalising assisted suicide and homicide at the victims request in no way belies the fact that reflections on the significant tension between life and autonomy that underlie the decisions of other courts are extremely useful as regards the present decision. It is one thing to fundamentally disagree with court decisions that the Portuguese Constitutional Court usually takes into consideration. It is another to simply dismiss them, almost out of hand, by saying that the same problem is not at issue. It is. Although the legal and criminal framework is different (naturally, the criminalisations in force in the various legal systems are not the same, giving rise to concerns specific to each one from the point of view of criminal dogma), the underlying fundamental rights issue is exactly the same.
Thus, the Bundesverfassungsgericht (BVerfG, Ruling of 26 February 2020 2 BvR 2347/15) recognised, in the broadest terms, the fundamental right to a self-determined death, understood as an expression of personal freedom, stressing that this decision in no way entails an incursion with respect to that persons dignity (being, on the contrary, the ultimate expression of the pursuit of personal autonomy inherent in human dignity). In the same vein, the Constitutional Court of Austria (G 139/2019-71 of 11 December 2020) held that, in view of the importance, within the framework of its legal system, of the self-determination and will of the individual as regards medical treatment, even in cases where it is indispensable to sustain life, it is not justifiable, in view of the constitutional rights at stake, to prohibit the aiding of suicide without exception and in all circumstances. For its part, the Constitutional Court of Italy (Ruling 242/2019, of 25 September 2019), although in a less expansive stance, also judged as unconstitutional an indiscriminate criminal repression of assisted suicide, in limited circumstances, considering that if the fundamental importance of the value of life does not exclude the obligation to respect the patients decision to end their own existence, through the cessation of medical treatments even when this requires active conduct, at least at the physical level, from third parties (such as switching off equipment, as well as administering continuous heavy sedation and pain therapy) there is no reason why the same value should translate to an overriding obstacle, penalized by law, to accepting the patients request for help, thereby allowing them to avoid the slower course considered contrary to the very idea of a dignified death that results from discontinuing life-support mechanisms. A recognition of the fundamental right to suicide (which would imply, at the very least, the criminalisation of assisted suicide being unconstitutional and, at the other extreme, concrete State duties in the sense of guaranteeing its practice) is not necessary, therefore, to understand that absolutising State protection of life, against the will of the right holder is, nowadays, very difficult to reconcile with the legal and constitutional demands arising from the rights to individual autonomy and self-determination. On the other hand, in comparative law the interpretation of the issue has not been based, as in the present Ruling, on a consideration of assisted dying as restricting the right to life, or the objective dimension of the good of life. Given the basic premises of the orientations described above, we firmly reject the concept accepted in the Ruling, since it advocates a (re)understanding of that right, in terms that allow it to be associated, in a coherent way, with personal freedom and dignity, recognising that the right to life is not equivalent to a duty to live in any circumstances.
For its part, the ECtHR, within the framework of its specific responsibility to guarantee the minimum standards of protection over the rights enshrined in the ECHR, has been gradually adapting the Convention to allow concepts that favour decriminalising assisted dying, giving states a significant margin of discretion in the legal regulation of the end of life and in the search for mechanisms of practical concordance between protecting patients right to life and protecting their right to privacy and personal autonomy (see, in this regard, the ECtHRs Lambert v. France Judgment of 5 June 2015).
2.2 It is precisely in light of the ideas of practical concordance between fundamental rights in tension, in terms similar to those that have motivated the decisions of constitutional courts similar to ours, and in view of the democratic legislators legislative discretion, that we believe that the general judgement in the present case should be that it is not unconstitutional. In fact, the requester seems to understand the same, taking into account the boundaries placed on the request, in accordance with our view.
Thus, at the level of constitutional dogma, and focusing on an analysis of the national legal and constitutional system, it should first of all be noted that there are no constitutional specifications in respect of this issue; in other words, unlike other matters, the Constitution does not impose a concrete agenda here, (deliberately) leaving a very broad scope for the ordinary legislator to make use of its legislative discretion. This is easily understandable, for historical, social and political reasons. In these terms, the Constitution admits that the democratic legislator may be called upon to resolve the tension that emerges, in certain situations, between biological life and biographical life (or, for those who so prefer, between the sacredness and quality of life), finding solutions that safeguard human dignity and all the conflicting legal and constitutional rights and values, and which make sense in a secular and plural society (in this sense, see A. SCHILLACCI, Dalla Consulta a Campo Marzio (e ritorno?): il difficile seguito dellord. n. 207/2018, in S. Cacace, A. Conti and P. Delbon (eds.), La Volontà e la Scienza, G. Giappichelli Editore, Turin, 2019).
It should be noted that Article 24 of the CRP protects human life at all times and in all circumstances. Life a dignified life is therefore protected at all stages of the human journey, from the least autonomous (such as childhood or old age) to the most autonomous; in a healthy state or in a state of illness; in the event of fully functional physical, motor and intellectual faculties or of a disability, whether mild or profound, congenital or acquired. In this sense, the norm protects human beings who do not, for various reasons, have full capacity for self-determination, such as minors, the incapacitated, people with mental abnormalities or those in a vegetative state. Of course, it also protects people with absolute autonomy and freedom of self-determination. This protection is primarily incumbent on the State, which has important duties to protect and safeguard. Bearing in mind the genesis of the constitutional norm, and the then recent memory of the Estado Novos attacks on life, the basic idea of Article 24(1) of the Constitution was simple: the State does not kill people who want to live, for any reason.
However, none of this has the necessary consequence that this protection must always have the same extent and intensity and, furthermore, that the consideration of what is, today, the specificity of other fundamental rights namely, the right to the free development of personality, in the areas of freedom and self-determination and their consequences on specific levels, such as that of medical treatment and end-of-life processes, does not allow (although neither does it oblige) the legislator to create legal/normative and practical solutions to enable what it understands to be the most successful way of finding practical concordance between the values in conflict.
The idea, expressed in the Ruling, that the present case is on a very different level, and removed from this tension between fundamental rights, because what is at issue is not the isolated conduct of someone wishing to end their own life, but the assistance of health professionals, within a framework of action regulated and controlled by the State, in hastening the death of a person at that persons request is a device, certainly ingenious but unfounded, to avoid the fundamental issue raised by the problem of assisted suicide and homicide at the patients request in situations of intolerable suffering: that of defining a space to balance the right to life (Article 24(1) of the CRP) and the right to the free development of personality, the expression of an inalienable personal self-determination and autonomy of will (Article 26(1) of the CRP). We reject the idea that this autonomy, which constitutes a genuine fundamental right, can, under the Constitution, only be exercised in the most absolute isolation. This Court should therefore have faced this central problem and, with dogmatic consistency, drawn the necessary conclusions about the difficult issue facing it. Even if we exclude the emergence, in our legal system, of the fundamental right to a self-determined death, the question remains as to the extent to which it is lawful for the legislator to recognise the increasing precedence of the right to freely develop personality over a right to life which is, above all, a fundamental subjective right. Thus, if it is undeniable that the involvement of the third party transforms the act into one that is relevant to the social system, being as such, exposed to its codes and values (see COSTA ANDRADE, op. cit. in the Ruling), this does not imply that the same codes and values of the social system remain crystallised, locked in a kind of time capsule, immune to any evolution or wind of change, preventing solutions that make medically assisted death possible in certain circumstances solutions that conform to the constitutional framework in force, precisely because they are founded on a certain concept of the modern-day balance between conflicting rights. However, if the Ruling reaches this conclusion that the absolute and unequivocal protection of human life does not permit a satisfactory response to such tension, since it tends to sacrifice individual autonomy, which runs against the dignity of the person in suffering, converting their right to live into a duty of painful compliance the truth is that it does so from a view of the objective dimension of the good of life that practically renders it absolute. Admitting the if (the possibility of medically assisted death, in its various modalities), this decision looks at the how with undisguised suspicion, reducing it to situations in which it is not about a choice between life and death, but, more strictly, a choice between different ways of dying: namely, a long and painful dying process versus a quick and peaceful death. Such an understanding, taken to its ultimate consequences, would, a priori, exclude from constitutionality many of the hypothetical situations for which the democratic legislator clearly wished to open up the possibility of medically assisted death: first of all, all those in which it is not a matter of choosing only a means of dying, but of renouncing a life that is perceived as not full, and involves extreme suffering, even if death is not on the near horizon. For this reason, we reiterate that the Ruling departs from an erroneous and almost absolute understanding of the norm contained in Article 24(1) of the CRP.
Thus it is important to state this clearly, given the line of argument followed, which starts with this almost absolutisation of the objective value of life the discussion about the democratic legislators scope for resolving instances of conflict between the sacredness and quality of life, favouring a greater margin for individual autonomy, has not really taken place and cannot be considered closed.
3. The Ruling ignores the significance of the right to freely develop personality (Article 26(1) of the CRP) and its specificity within the context of the specific issues at hand.
With regard to the specificity of the norm contained in Article 26(1) of the CRP, the Ruling omits to consider the significance and specific nature of the right to freely develop personality and the rights of self-determination and freedom, as well as the requirements arising from the idea of consent, in situations involving illness or injury.
The international and domestic legal orders have seen the notions of will and consent gain significance in all matters related to control of the body. Recall Article 5 of the Oviedo Convention (Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, of 4 April 1997), under which An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time. At the domestic level, see the Framework Law on Palliative Care (Law No. 52/2012 of 5 September) and the Law on the rights of people with advanced illness and end-of-life situations (Law No. 31/2018 of 18 July). The norm contained in Article 5(3) of the latter expressly states that provided they have been duly informed of the foreseeable consequences of this option by the doctor in charge and the multidisciplinary team accompanying them, people with advanced illness and in end-of-life situations have the right, by law, to refuse artificial support for vital functions and to refuse any treatment that is not proportional or appropriate to their clinical condition and treatments of any kind, that do not exclusively aim at reducing suffering and maintaining patients comfort, or which prolong or aggravate that suffering..
These normative provisions are based on a concept which, by attributing central importance to the fundamental right to freely develop personality, enshrined in Article 26(1) of the CRP, now justifies the refusal of treatment in almost all circumstances, without the person even having to give reasons for their decision. Each persons right to decide on their life and death is therefore recognised, while respect for ones dignity is demanded in both processes (since they are processes and not moments), according to ones own ethical, moral and/or religious values, and ones own conception of what a good life is, which is bound to vary in a complex and plural society. Consent understood in these terms thus implies each persons dominion over themselves, over their body, which goes hand-in-hand in life and is also accepted as a fundamental rule in death. Furthermore, the idea of proportionality between medical interventions to prolong life and quality of life is also seen as a general principle of practice in these matters, limiting treatment.
Admittedly, the issues at stake in the present case go a step further. However, a dogmatically coherent consideration of the specificity of the right to freely develop personality (ergo the right to self-determination), resulting from the foregoing, leads to the conclusion that the demands of fundamental rights, and even equality, require that the legislator be granted a wide scope of discretion in order to regulate the end of life. Indeed, if a person depending on external support to survive can discontinue treatment without even having to provide an explanation, how can one justify not allowing the same for someone in an identical (and extreme) state of suffering, but who has the misfortune to survive naturally? Is there (or should there be) an insurmountable difference, in given situations, between allowing to die and helping to die? The answer and the dividing line should be up to the democratic legislator.
S. RODOTÀ (in La Vita e le Regole, 1st online edition, G. Feltrinelli Editore, Milan, 2018), considering the transformation of assisted suicide or homicide at the victims request into a social act (an issue afforded considerable significance in the Ruling) tells us of the rediscovery of a human condition and a widespread and profound sensitivity, of an empathy between the person dying and the people accompanying them at the end of their life, with the assumption of responsibility for making death possible dictated not by pity but by affection. The human condition and a shared destiny find one of their most powerful expressions here. In this sense, it should be noted that the concepts of suicide and homicide are manifestly inadequate in this context, since they are existential, ethical and legal situations totally distinct from what is at issue here which is the extreme circumstances faced by those who request a death they consider dignified and the exercise of self-determination and autonomy at the end of lifes journey. It is at these difficult moments, when legal rules meet life, that the law fulfils its rationalising, equalising and safeguarding role (namely by establishing firm and strict procedural guarantees for expressing and verifying wishes). However, the circumstances of people at the end of life must be considered in their entirety and complexity, without admitting distinctions that create inequalities in the face of death. The constitutional dimension combines with the existential dimension, supporting it (S. RODOTÀ, op. cit.).
4. The Ruling establishes a standard of determinability with respect to justification, at the criminal level, diverging from that hitherto accepted as constitutionally compliant.
Finally, in our view the Ruling establishes a standard of determinability in criminal legislation that not only diverges from what has hitherto been accepted as constitutionally compliant, but is also potentially problematic.
In this regard, we depart from a fundamental premise, hitherto always affirmed by the Court, in full harmony with the doctrine: the Constitution does not impose constitutional obligations of criminalisation. In other words, there is no constitutionally protected legal good that the CRP believes must necessarily be protected by means of criminal law. This is an ultima ratio solution and must be used whenever the legislator believes there is no other way of adequately protecting the good or right in question. But it is not a constitutional requirement.
However, the fact is that the Portuguese legislator decided to continue criminalising assisted suicide and homicide at the victims request, crimes described and punished under Articles 134 and 135 of the Criminal Code and subject to an identical punishment, which shows, from a legislative perspective, that they are considered equally unlawful. These are, as the Ruling rightly recognises, crimes of abstract danger, justified by the need to protect life against hasty, rash or conditional decisions. But they are also privileged crimes related to the (core) offence of homicide. Following the line taken by COSTA ANDRADE, as cited, the legislator understood these to be specific situations in which faced with an irreversible loss of purpose in continuing life, motivated by the unavoidable proximity of death or the uncontrollable and unbearable nature of the suffering endured exercising self-determination in the sense of terminating life should prevail, since it appears, in the common opinion, to be objectively reasonable. From a criminal perspective, therefore, we find ourselves in the domain of establishing a complex justification for exempting such conduct from illegality (and not the guilt of the perpetrator, the parallel with an excusable state of necessity, included in Article 35 of the Criminal Code and which the Ruling seeks to establish, being inappropriate) in strict and pre-determined circumstances.
Within this framework and after clarifying that the norm in question should be scrutinised by referring to the constitutional parameters applicable to the norms governing the restriction or regulation of fundamental rights, namely the principle that laws must be determinable, as a corollary of the principle of a democratic state based on the rule of law, and of the constitutional rule that legislation on certain matters can only be passed by Parliament, as derived from the combined provisions of Articles 2 and 165(1)(b) of the Constitution, a parameter with which we agree the Ruling examines the determinability of the two normative segments identified as problematic by the requester (and only those), concluding that the reference to extremely severe and permanent injury according to scientific consensus is unconstitutional, on the grounds of a breach of the aforementioned principle of determinability. It is the majoritys conviction that in order to ensure its options remain constitutional, the legislator would have to find an alternative wording, which would translate into a greater specification of the normative segment that is intended to be enshrined as a prerequisite for [...] non-punishment, even advancing that it could have employed other concepts, much more common in (medical and legal) practice, which, without losing plasticity, would be readily comprehensible when associated with the prerequisite regarding intolerable suffering. Now, the question here is not whether the legislator could (or should) have done differently, or better. As not all bad law is unconstitutional law, and as the legislator was not, in our view, obliged to refer to concepts that are more common in medical or legal practice, the only question the Court should answer is whether the concept that the democratic legislator actually used corresponds to the minimum standards of determinability accepted as compliant with the CRP, within the scope of justification in criminal matters. Yet one need only consult the Criminal Code to find, in similar matters, equally indeterminate concepts that have not hitherto merited censure, because it is understood that they are determinable, in practice, within the framework of a process of dialogue between doctor and patient, similar to what is at issue here. See, for example, Article 142(1)(a), (b) and (c) of the Criminal Code, which provides for situations in which a doctor who terminates a pregnancy with the consent of the pregnant woman is not punishable, using concepts such as severe and irreversible/lasting injury to the body or the physical or psychological health of the pregnant woman and severe illness or congenital deformity. The use of these concepts assumes all the more significance when, in this case, and similarly with medically assisted death, it is not only a question of decriminalising certain acts under specified conditions but but also to regulate them and thus legalise them within the framework (and only within the framework) of an administrative authorisation and implementation procedure which the State itself establishes and regulates in all its phases and with the intervention (not only, but always) of public entities. Therefore, it is not apparent that the questioned normative segment irremediably departs from this standard, or that any other insuperable objections related to the principle of determinability are raised in relation to it.
The problem which the Ruling does not explicitly address, although it should is therefore not that of the determinability of the concept of extremely severe and permanent injury according to scientific consensus. The concept is determinable, without insurmountable difficulties, in the specific institutional and procedural context in which it must operate. The point is that the wording of such determination leads to the conclusion that the legislator wished to include, in the range of possibilities for accessing medically assisted death, cases in which, since the injury in question is not fatal, it is difficult to see how there could be any question of hastening death, since this may not occur as a result of the injury. Thus, what underlies the finding of unconstitutionality is not really a problem of indeterminability. It is a problem rooted in the subjective scope of the situations actually covered by the norm under review. The majority of the Court finds that it is so broad as to place it outside the domain of constitutional compliance. However, if that is the issue, it should have been specifically analysed.
Taking into account all the above, we believe that what was said in the Ruling regarding the intolerable suffering requirement applies a fortiori to the extremely severe and permanent injury according to scientific consensus requirement; that is, that although indeterminate, the concept at issue is not indeterminable, but rather determinable. Moreover, its openness is appropriate to the clinical context in which it will have to be applied by doctors. These two reasons sufficiently justify the degree of vagueness in question and do not permit, in the particular field of hastened medically assisted death, the conclusion that such indeterminacy runs against the requirements of regulatory specificity imposed by the Constitution.
What would be more desirable, even for those who most fear so-called slippery slopes? To bind the interpreter to narrow and ever debatable notions (since this is the undeniable nature of the scientific method, which is constantly seeking to confirm/refute knowledge deemed established) or to provide the implementer with greater heuristic fruitfulness in considering specific life situations, associated with the guarantee afforded to the judgement by the obligation to state adequate grounds? Mariana Canotilho José João Abrantes Assunção Raimundo Fernando Vaz Ventura
EXPLANATION OF VOTE
Having subscribed to the dissenting opinion made jointly with Justices Mariana Canotilho, Assunção Raimundo and Fernando Vaz Ventura, setting out the fundamental reasons why we disagree with the Ruling, in terms with which I fully agree, I now add this individual explanation, which does not contradict it, but following the same logic, complements it to some extent with something I believe important to mention about the law whose review was requested from this Court.
The main conclusion of the dissenting opinion is I reaffirm here our joint statement that, in abstract terms, Article 24(1) of the CRP does not prevent the legislator from introducing to the legal order justifications that may be taken into account in the case of assisted suicide or homicide at the victims request. The Constitution grants it legislative discretion in this matter, so that it can find solutions that achieve the necessary practical concordance between conflicting fundamental rights and legal/constitutional values. In fact, it must be recognised, without this implying any lessening of the importance or ethical, philosophical, political, social and legal meaning of human existence, that absolutising State protection of life against the will of its subject is, today, very difficult to reconcile with the legal and constitutional demands arising from the rights to individual autonomy and self-determination. As Rui Medeiros and Jorge Pereira da Silva write in an annotation on Article 24, the circumstance that the right to life is a sine qua non condition for all other rights does not necessarily imply its permanent axiological superiority over other rights: only life compatible with freedom is entitled to full constitutional recognition.
Within this legislative discretion, I believe that the Assembly of the Republic, by a very significant majority and meeting what it considered to be a human imperative (I believe that the preparatory work, e.g., the parliamentary debates, demonstrate the importance of this idea in the mens legislatoris), made a law that, in a balanced and extremely prudent manner, respects both those who wish to live as nature dictates until the final moment, and those who wish to choose the moment of their death, with assistance from third parties and in circumstances defined by the constitutional framework. The law attempted to reconcile, as far as possible, the diverse views of society on the subject and to establish every caution, doing everything in its power to avoid, for example, the danger of so-called slippery slopes. Its manifest concern was to restrict assisted dying to very exceptional situations (and invariably based on the free, explicit and informed will of the patient, with a stringent safeguarding procedure, guarantees of access to palliative care, conscientious objection by health professionals, etc.).
One final reference, regarding the argument on the social and not merely individual aspect of suicide, which has been much discussed and particularly emphasised by Gustavo Zagrebelsky: Is the states duty not the opposite: to give hope to all? The first right of every individual is to be able to live a meaningful life, and society has the duty to create the conditions. [ ] Suicide as an individual act is one thing; socially organised suicide is another. Society, with its structures, has the duty to care, if possible; if not possible, it at least has the duty to alleviate suffering. The major problem with this argument is that we do not live in that perfect society or, at least, closer to that fairer, more fraternal and freer society of which our Constitutions preamble speaks. While we all have, as people and citizens, an undeniable duty to fight for it, the truth is that it does not (yet) exist and therein lies the need for our solidarity and humanity, as a community, towards those who, in extremely difficult circumstances, which no one can judge, choose to take the dramatic decision of asking for death. It is true that all lives are worthy we all agree on that, so that is not the problem (and indeed, as Ronald Dworkin points out, dignity which means respecting the inherent value of our own lives is at the heart of both arguments, i.e., for and against euthanasia), but it is also true that there are no cure-alls and there is suffering that nothing can allay. Suffering, even atrocious suffering, can be endured when there is hope, but atrocious suffering when there is no hope makes no sense if one no longer sees any sense in it. What makes suffering unbearable is not the illness or the injury from which the person suffers, it is their inability to cope and thus attain relief; it is the prospect of living in constant suffering without any expectation of relief. That is why, in my understanding, what is primarily at stake here is this human imperative not to criminalise whoever helps someone in a state of intolerable suffering, with an extremely severe and permanent injury according to scientific consensus or an incurable and fatal illness to bring forward their death, moved only by compassion in the face of a conscious and informed, repeated and unequivocal request. With this law, everyone still has the right to suffer their own suffering and to die their own death, but criminalisation will no longer be able to be used to impose suffering on others, in the very limited cases where it is foreseen that murder at the victims request and assisted suicide will no longer be a crime.
For these reasons also (in addition to those set out in the joint opinion to which I subscribed), I diverged from the Ruling and I believe that the judgment of this Court should have been that the law in question is not unconstitutional.
José João Abrantes
EXPLANATION OF VOTE
Dissenting as to the grounds for the decision.
1. The medically assisted death regulated in Decree No. 109/XIV is an exception to the general regimes criminalising homicide at the victims request and assisted suicide, contained in Articles 134(1) and 135(1) (second part) of the Criminal Code. Provided it is carried out under the conditions and terms set out in the decree, the conduct in question is not only no longer punishable, as stated in Article 1, but is, strictly speaking, legal, permitted by law − in fact, protected by law, since fulfilling all the stages of the verification procedure gives the patient the right to die with medical assistance. Whenever the legislator punishes conduct, it severely restricts the freedom to engage in it, and it can only do so based on the duty to protect a legal good of constitutional relevance. Whenever it legalises conduct that had hitherto been punished, it widens the agents sphere of freedom, either because it recognises that the criminalisation was unlawful or unnecessary and did not reflect any real duty to protect, or because, in the circumstances in which it ceases to punish the conduct, it attaches greater weight to individual freedom than to the duty to protect. Therefore, in order to understand the hastened medically assisted death regime, it is crucial to inquire about the constitutional basis for punishing the acts foreseen in Articles 134(1) and 135(1) (second part) of the Criminal Code. There are basically three possible answers to such a question.
2. The first is that the punishment for murder at the victims request and for assisting suicide is based on the states duty to protect life as an objective value and inalienable good. Unlike rights to freedom (it is said), such as freedom of expression or the right to freedom of movement, the right to life cannot be expressed negatively. This is an elliptical way of saying that Article 24(1) of the Constitution imposes on the right holder, in cases where they wish to die, a duty to live that life is not a disposable good, but an objective value entrusted to the trusteeship of the holder. Therefore, the consent of the injured party can in no case operate as justification for crimes against life. The legislator may refrain from criminalising attempted suicide for reasons of criminal policy, but has every legitimacy if not an obligation to criminalise third-party assistance in implementing the personal decision to end ones life. And it is absolutely forbidden to legalise assisted dying, that is to say, to foresee circumstances in which the act of disposing of ones own life corresponds to the exercise of a right. This position implies, as is easy to see, the constitutional proscription of medically assisted suicide and voluntary active euthanasia.
There are two common arguments in favour of this hypothesis, neither of which I find convincing.
The first is based on the constitutional wording of this right (human life is inviolable), supposedly indicative of a constitutional leaning towards the absolute value or at least the absolutely inalienable nature of human life. Now, even if one were to accept the constitutional interpretation underlying this argument which I emphatically oppose, for the reasons set out in the opinion I subscribed to in Ruling No. 464/2019 , an interpretation taken here to the unusual extreme of assuming that the constitutional norm enshrining the fundamental right as a whole has a scope resulting from the words chosen by the constitutional legislator to express it and not the scope resulting from the content of the corresponding human right it still seems to me a manifestly unviable argument. It is enough to note that Article 25(1) uses identical semantics regarding the right to personal integrity (moral and physical integrity is inviolable), without anyone resorting to the bizarre argument that the body is an absolutely inalienable good and that, therefore, the consent given by citizens to barbers, beauticians, physiotherapists, surgeons and other professionals whose services regularly interfere with the enjoyment of their physical integrity is invalid. I am certain that no relevant conclusions as to the content of the fundamental right can be drawn from the very conspicuous wording of Article 24(1).
The second argument is that the injured partys consent, in cases where life is destroyed, is by nature null, either because life is a necessary prerequisite for freedom so that the freedom to dispose of life contradicts its own prerequisite or because, in the circumstances in which it is practised, especially a situation of intolerable suffering, the act of disposing of life cannot be truly free. I believe both arguments to be fallacious. The first is based on the ambiguous use of the term prerequisite: life is certainly an empirical prerequisite for freedom as are, albeit relatively, health, education, housing and income but it is not, as this argument seeks to establish, a transcendental prerequisite. It is possible that the declarations of will: I renounce my freedom, I force myself to be a slave or I alienate myself, contain performative contradictions because they deny the ultimate basis for their validity (the personality of the declarant) but there is nothing contradictory in the declarations of will: I renounce living or I want to die. The inalienability of life is not a logical necessity. And if it is not, the question remains as to why this fundamental right and only this right entails an odd duty to perform, a corollary of its resistance to any balancing with the general freedom of action arising from its subjects right to freely develop personality (Article 26(1)).
On the other hand, the notion that the request to die is not free, regardless of the psychological condition of the subject, is based on a confusion of the concepts of physical and moral coercion: when a person acts under the constraints of an unlawful threat, as opposed to when the action is constrained by force, their conduct corresponds to an exercise of personal will; the rationale underlying the invalidity of the act is not the absence of will, but the defect in its formation. The same freedom is seen in the personal decision to end ones life, with the difference that in this case there is no defect in the formation of the will, because the persons decision is not conditioned by the unlawful threat of a third party, but by the desire to avoid prolonging an unsatisfactory existence. The decision would only cease to be free if the agent had lost their judgement; and the formation of the will would only be defective if the law denied the agent the exercise of another existing and definitive right that resulted or could result in an increased quality of life deemed significant by them. Moreover, I do not see how this position can avoid the following consequence: if the patients request to die is not by nature an exercise of freedom, how can the refusal of a necessary treatment to maintain or prolong life be so? If life is an inalienable good, because freedom cannot prevail over life, or because freedom from life is merely apparent, it seems inevitable to me to conclude that voluntary passive euthanasia is also unconstitutional, condemnable in all cases, particularly those in which the refusal of treatment implies an action the interruption of a means of life support. Accepting this consequence would imply accepting a seismic shift in the current legal and deontological framework, subverting the current paradigm of consent in the relationship between doctor and patient.
3. The second possible answer with respect to the constitutional basis for punishing homicide at the victims request and assisted suicide is that it is a matter of weighing the state duty to protect life as an eminently objective value against the subjects right to freely develop their personality. According to this position, the legislator has long punished the collaboration of third parties in self-determined death because it understands that the duty to protect life generally prevails over individual autonomy; but it now approves a regime of medically assisted death because it also understands that, in certain circumstances, the relative weight of these constitutional values shifts in favour of freedom. The theory tentatively endorsed in the ruling is that such a decision is admissible in principle, notwithstanding the extent to which legislative discretion may be more or less extensive, depending on how open the constitutional order is to sacrificing life in the name of freedom.
I do not believe it to be a defensible position.
The weighting of constitutional values can only shift if their relative weight or another relevant factor differs under the circumstances, otherwise there will be a violation of the requirement that judgments should be universal. In other words, it only makes sense to admit exceptions to a rule if it can be argued that the specific circumstances of those exceptions justify a relative weight that is different from what applies in the majority of cases. It follows that medically assisted dying can only be made compatible with the general criminalisation of homicide at the victims request and assisted suicide, always based on weighing the duty to protect life against the right to freely develop personality, if it is legitimate to judge that, under the conditions laid down in Article 2(1) of the decree, the objective value of life is lesser or the value of freedom is greater or, a fortiori, both than in the other circumstances where the preconditions for the crimes described in Articles 134 and 135 of the Criminal Code are verified.
Now, such a judgement is clearly unacceptable, for the reasons recently adduced by the Federal Constitutional Court of Germany, in the ruling handed down on 26 February 2020 on the right to a self-determined death. On the one hand, if allowing medically assisted death evinced the legislators judgement that life in certain circumstances extremely severe and permanent injury or incurable and fatal illness has a diminished value, and therefore yields before the value of freedom (whose weight supposedly remains constant in all cases of death upon request or assisted suicide), one would admit such grading of the value of fully formed life as a general principle, precisely that principle which has always guided the eugenic, homicidal and genocidal policies of regimes characterised by the denial of human dignity that is to say by the notion that dignity is not attributable to all human beings, without reservation, but to those who boast a dignifying origin, belonging or distinction. On the contrary, in the mode of political coexistence we call constitutional democracy, human life has no more or less value because of the conditions in which it is lived, the character of the person living it or its expected duration. On the other hand, if the weight of freedom were to increase under the circumstances by which the law admits medically assisted death, the legislator would arrogate to itself the right to question, judge and discriminate against the existential convictions and personal identity of citizens, making the recognition of their decisions dependant not on the respect that the exercise of freedom deserves, but on the merit attributed to certain motivations and individual projects. Thus, by establishing a regime of euthanasia with indications − conditional on certain objective causes of the somatic kind − the legislator would not be respecting the individuals freedom of action, but rather assuming a directing role in the development of their personality. This would clearly contradict the liberal principle upon which the regime of medically assisted death rests.
4. The third possible answer the one I endorse departs from a different premise: the disposability, in principle, of life as a legal good. Life is legally disposable even if one concedes the idea evidently controversial in a pluralist society that it is an unconditional value, that by destroying their life the subject is disrespecting its moral essence or violating the ethical duty to conserve the good. This is because it is impossible to coerce anyone to respect their dignity or to behave ethically: inner values such as goodness, righteousness, respect or charity cannot, by their very nature, be achieved through force, since the latter acts on the subject as a simple object, a mere means to achieve an external state of affairs deemed desirable. It is a contradiction in terms to treat someone as a mere means due to them being an end in and of itself. By coercing the debtor to fulfil their contractual obligation, the employer not to dismiss without just cause or perpetrators to compensate for the damage they have caused, the public authority safeguards the rights of the creditor, the worker or the injured party. These can be guaranteed by force. But force cannot be used to guarantee the dignity of its object: by denying the freedom of the agent, it denies the sine qua non of its success. This applies both to coercion in the strictest sense forced fulfilment and to sanctions and other more or less subtle forms of restricting freedom of choice, such as the prohibition of assistance from third parties. Therefore, in a constitutional order based on human dignity, all fundamental rights must dovetail with the more general and radical right to the free development of personality. Life is the object of a true right to freedom.
One might think that this argument proves more than this. The law does not mandate the punishment of attempted suicide, nor can it be drawn from it that suicide is an unlawful act. Only it does not conceive of it as a subjective right either. Suicide is permitted in the broad, trivial and tautological sense that it is not prohibited. It is legitimate for a person to try to prevent another from committing suicide and I suppose there is no doubting that a law enforcement officer has a duty to do so. But if life is a disposable good, if it is the object of a right to freedom, one may ask whether the legislator is not obliged to enshrine a right to suicide and to admit consent as a justification for crimes against life, with the inevitable consequence that the crimes described in Articles 134 and 135 of the Criminal Code should be considered unconstitutional. For the same reasons, intervention by a third party hindering suicide should be defined as unlawful conduct and the public authority, confronted with a suicide attempt, should be bound by a simple duty to abstain. These are abominable consequences.
However, this reasoning is based on a reductive conception of freedom. The general freedom of action comprised in the right to freely develop personality is not restricted to a negative dimension. In Western moral, political and legal culture the concept of freedom admits two distinct interpretations or conceptions. Freedom in the negative sense of the term is freedom of choice, individual discretion, unimpeded action, the absence of obstacles: freedom is the individual doing whatever they want without being accountable to anyone. In this sense, the less external resistance to individual action there is above all from third parties, be they private individuals or public entities the freer one can be. This negative freedom is anomic, insofar as it does not obey any objective norm, amounting to the arbitrary power of the agent over a certain object life, body, a thing, image, intimacy, communication, health, among many others.
Freedom in the positive sense the second grand conception develops from the interiorisation of the paradigmatic negation of freedom: slavery. The slave is totally dependent on the will of a third party, their owner; hence they have no right to be free in the negative sense of the term they enjoy the negative freedom granted by their masters will. In an apparently paradoxical way, Epicurus asserted that freedom is found only in the total submission of the individual to knowledge a state compatible with the social condition of the slaves who attended his school. And Plato had Socrates argue in several of his dialogues that tyrants and demagogues, considered by his interlocutors as the most powerful, are the least able and the most unhappy. This is so he explains because they do not do what they really want to do, but what their passions, inclinations, appetites and temptations inexorably compel them to do. The true dependent, in this sense, is the individual incapable of exercising self-control, self-mastery, self-discipline he, in short, who, not being governed by reason and enjoying the greatest license to act, is a slave to his impulses. Positive freedom is prescriptive, insofar as it consists in living according to rational regularity, which may result either from the individual acquisition of wisdom or from subjection to a virtuous government.
In their extreme versions, negative and positive freedom are not just different they are downright antagonistic. No reconciliation is possible between the negative freedom of a Hobbes, which signifies properly the absence of [...] external impediments of motion [...] and may be applied no less to irrational and inanimate creatures than to rational, and the positive freedom of a Rousseau, according to whom whoever refuses to obey the general will shall be constrained to do so by the whole body, which means nothing other than that he shall be forced to be free. In the first sense, human beings are free to the extent that they can behave like a stone rolling down a slope without obstacles; from the point of view of positive freedom, it is the total submission of the individual. In the second sense, human beings are free insofar as they observe a rationally justified law, if necessary imposed by the organised collective; from the point of view of negative freedom it is the triumph of despotism. Constitutional democracy is a collective way of life based on the priority of negative freedom on the fundamental commitments that freedom and force are mutually exclusive; that any restriction of freedom of choice lacks a legitimate foundation; that if in doubt about the scope of laws, freedom of action is presumed; and that every individual is master of a sphere of decision-making that cannot be disturbed by public authorities and in which they can act without accountability to anyone. It is precisely here that the liberal ethos of contemporary democratic regimes lies.
5. Positive freedom still has a relevant place in our constitutional order, in a version compatible with the arguments of interiority and pluralism.
First of all, it is a matter of conceding that ethical value or moral virtue cannot be imposed by force. Freedom which is realised through obedience to a behavioural standard or the recognition of an objective necessity implies the subjects freedom of choice it is realised only as an expression of personal self-determination. Therefore, although the constitutional order of a liberal democracy seeks its legitimacy in the consent of the addressees, as free and equal subjects, it does not use force to guarantee the positive freedom of the individuals it subjects, but rather the negative freedom of the individuals who would otherwise be subjected by them; the obligation is not enforced to release the debtor from wrongdoing, but to protect the right of the creditor. No one can be forced to be free in the positive sense of complying with what is due: this freedom is not achievable in any other way than through autonomy, the voluntary submission of the subject to a behavioural standard that they have interiorised. A right wrote Kant, the philosopher who most advanced the idea of freedom as obedience to a categorical imperative ensures the conditions under which the choice of one can be united with the choice of another in accordance with a universal law of freedom. Coercion can only be used to guarantee negative freedom; the kingdom of ends falls exclusively within the realm of consciousness.
Secondly, it is a matter of recognising that the proper modes of reflection and communication in an open society do not generate any ethical consensus or civic religion no single conception of moral virtue, the meaning of existence or the mysteries of life. The irremediable plurality of worldly loyalties determines that a just order of coexistence is only possible if the public authority invokes reasons that merit the assent of all citizens, on the assumption that they respect each other as free and equal subjects. The Constitution, reads Oliver Wendell Holmes Jr.s famous Lochner v. New York opinion, is made for people of fundamentally differing views [ ]. Now, since most ethical conceptions religious or secular do not satisfy this requirement of political reciprocity and public reason, the only universal behavioural standard is that which devolves to the individual endowed with the power to govern their own existence, to freely develop their personality, through the guarantee of a sphere of negative freedom compatible with the equal guarantee granted to other individuals. All fundamental rights in the constitutional tradition have this profound meaning: this is evident in rights of freedom, which protect the subject from public interference and underlie the states duties of protection against the interference of third parties; but it is also evident in social rights, which focus on certain material conditions for the effective enjoyment of rights of freedom.
By recognising the interiority and pluralism of values, the idea of positive freedom does not disappear, but changes profoundly. It ceases to be a material norm that guides conduct in the sense of a proper development of the personality and becomes a procedural norm that translates to the requirement that the exercise of rights must satisfy conditions, observe procedures and take on a form commensurate with its effects on the development of its subjects personality. One of the main reasons why the law imposes a very different burden on the most varied acts and transactions of daily life a walk on the street, the purchase of an airline ticket, the acquisition of real estate, the formation of an association, the signing of a will has to do with the magnitude and reversibility of its consequences in the life of the individual. The encumbrance of an act undoubtedly amounts to a restriction of the general freedom of action in the negative dimension of individual agency or the absence of constraints to act as one pleases without being accountable to anyone. But it may constitute a form of protection for the general freedom of action in the positive dimension of guaranteeing personal self-determination of forming a properly informed, considered and firm decision. Thus, the general freedom of action comprises two distinct dimensions in need of practical concordance: the right to act without hindrance or obstacles imposed by the public authorities, and the right to protection of the conditions for forming an autonomous decision. The first is a defensive right, corresponding to a state duty to abstain; the second is a positive right, corresponding to a state duty to provide. It is in this way in a constant tension mediated by the principle of proportionality that negative and positive freedom coexist within the constitutional order of liberal democracies.
6. The negative exercise of the right to life has the peculiarity of being indistinguishable from a declaration renouncing the right, made definitive by the circumstance that its future revocation is impossible. This calls for the most stringent requirements as regards the validity of that exercise: given the absolutely irreversible and irremediable nature of the decision, the duty of protection based on the positive dimension of the general freedom of action justifies severe restrictions on its negative dimension. The legislator must have a conviction founded on a considered and firm decision to die in order to be able to take it as an expression of personal self-determination and, in cases of homicide upon request or assisted suicide, to grant validity to the consent given to a third party. But this degree of conviction is not found in the majority of circumstances in which someone wishes to end their life. Common experience tells us that wishing to die is, as a rule, irrational unthinking, rash or desperate since life is an absolute empirical precondition for other worldly goods, since personal existence is radically indeterminate, and since human beings are not omniscient. In the overwhelming majority of cases, a suicide attempt says less about the subjects consideration of their existence than about their temporary inability to form a considered decision. And this common experience is amply corroborated by studies which indicate that a very high percentage of people who attempt suicide around 90% come to regret their decision.
I believe this is the real constitutional basis for denying a right to suicide and criminalising assisted dying. The legislator reasonably presumes that the decision to die is not self-determined in proportion to its irreversible and irremediable consequences on the development of the agents personality. The lack of protection afforded by the positive dimension of freedom of action is so great in these circumstances that it makes the most severe restriction of negative freedom reasonable the absolute denial of a right to end ones life and the general criminalisation of third-party collaboration in implementing the decision to die. But this is not the only possible solution from a constitutional point of view. Since this is a complex and controversial weighing judgement, it seems certain to me that the democratic legislator must enjoy legislative discretion in a significant middle ground between the prohibition of insufficient protection over personal autonomy and the prohibition of an excessive restriction on freedom of choice. The legal systems of other European constitutional democracies therefore contain very varied regimes in this area. The original solution of Articles 134 and 135 of the Criminal Code, which provide for crimes that cover the whole phenomenon of assisted dying, is relatively conservative, differing both from legal systems that allow active euthanasia and assisted suicide under certain conditions, such as the Dutch and Belgian ones, and from those in which aiding suicide is not a punishable act, and is even a tolerated social practice, such as in the German and Swiss systems.
It is in the use of this freedom of legislative discretion to weigh the negative and positive dimensions of the general freedom of action that the legislator has now approved an exceptional regime of medically assisted death. It is considered that, under the conditions laid down in Article 2(1) of the decree, there are well-founded reasons to reverse the presumption underlying the criminalisation of homicide at the victims request and assisted suicide under these conditions, in other words, it is justified to take the individuals decision to end their life as an expression of their autonomy. In part, this is because the administrative procedure put in place to verify the conditions under which assisted death is permitted ensures, to an extent that may be considered generally acceptable due to its onerous and drawn-out nature, that the request is informed, considered and definitive, with emphasis being placed in this regard on the requirement of repeated reiteration and protection of the freedom to revoke said decision. All this belongs to the strictly procedural domain of the regime, since it is the formation of the individual decision to die that is at issue; it therefore obeys the general principle that the validity requirements for exercising a right should be all the more demanding if its consequences for the development of the subjects personality are significant.
However, the person in question must also be suffering from an incurable and fatal illness or an extremely severe and permanent injury and, in either case, must be in a state of intolerable suffering. The generic basis of these requirements, if I see things correctly, is essentially as follows: if the decision to dispose of life is deemed irrational due to the recognition that life is the absolute empirical condition for other worldly goods, that personal existence is radically indeterminate and that human beings are not omniscient, there are well-founded reasons for reversing this presumption in situations those which the legislator has sought to isolate with qualified notions of illness and injury where there is a dramatic reduction in quality of life, a restriction of existential possibilities and an irreversible or definitive clinical picture. It is understandable that for some people life ceases to have meaning in these circumstances, and this fact makes their wish to die sufficiently intelligible for the law to take it as an expression of personal self-determination, reversing the general presumption underlying the criminalisation of assisted dying, It is this intelligibility of the decision that justifies recognising a right to die with medical assistance; the legislator understands that in these cases autonomy is sufficiently protected by the guarantee that the request is informed, considered and definitive, the petitioners freedom of choice then prevailing. This is a constitutionally legitimate option.
7. If this is so in general terms, the specific solution adopted in Article 2(1) of the decree is nevertheless worthy of constitutional objection: the requirement of administrative verification of a state of intolerable suffering. I believe that this requirement excessively restricts the patients right to freely develop their personality, primarily because it is clearly inappropriate as a means of protecting the general freedom of action in its positive dimension.
It is important to distinguish suffering from pain. Because it is a sensation, pain is surely subjective, in the double sense that it is an event that occurs in the subjects consciousness and is directly knowable only by the subject. However, it is still subject to some degree of objectification present in the current diagnostic methods and in the construction of scales and can be mitigated or alleviated by treating its causes or administering anaesthetics. Suffering, on the other hand, presupposes the ability of a subject to value their existence according to a norm that they have interiorised. It is only for convenience of expression that one can speak of physical suffering or psychological suffering suffering is by nature a holistic state and an existential phenomenon; its causes are necessarily measured by reflection and linked to certain values. Hence, the relationship between pain and suffering is contingent: pain can be a determining cause of suffering, but there can be pain without suffering regularly witnessed by women in childbirth, athletes and missionaries and there can be suffering without pain, namely caused by the end of a valued relationship, the death of a loved one or total dependence on others. I do not deny that suffering can be treated in its own way within the framework of an interdisciplinary concept of palliative care but I am certain it is not something as prosaic as treating a toothache or a muscle spasm, symptomatic of objectively identifiable causes and capable of relief through the administration of drugs. It seems to me above all that suffering is a profoundly subjective reality, inseparable from the personal worldview and insusceptible to simple verification.
For all that, I do not believe that suffering can be verified or falsified by third parties, namely doctors and administrative committees; its intolerability even less so. From a constitutional point of view, the issue can be strictly posited in the following terms. By imposing as a condition for hastened medically assisted death a state of intolerable suffering verified through the administrative procedure regulated by the decree, the legislator restricts the general freedom of action of the patient, in its negative dimension of freedom of choice, presumably with the purpose the only one that can be considered legitimate of protecting their personal self-determination, the positive dimension of freedom. It happens that entrusting a heteronomous authority with verifying a radically subjective state is an inappropriate and even harmful way of pursuing this aim it is an insidious way of giving third parties the final decision on whether the suffering reported by the patient is reasonable, submitting their existence to evaluations based on an external norm incompatible with their autonomy. The inadequacy is even more evident in blatant contradiction with the basis of the regime if we consider that the law is not satisfied with the verification of the suffering, but requires the intolerability of the suffering. In practical terms, this is about giving specialists back the power to judge whether a person in certain situations, namely with a serious and incurable illness or an extremely severe and permanent injury, has good reason to cease living. Such a regime gives rise to two grave dangers: firstly, that the conditions under which death may be brought forward will come to depend more on the worldviews of health professionals and the guidelines of the Verification and Assessment Committee than on the petitioners contingent will and conceptions of life; secondly, the fact that successive verification of the state of intolerable suffering might impact on the freedom of the patient to revoke the request at the last moment, given the progressive accumulation of acts that make up the procedure, combined with the fact that the doctor is perceived by the patient, more often than not, as an authority figure. These dangers are too serious in a regime that seeks to serve the exercise of individual freedom with respect to life and death.
I admit that the law can be interpreted, as has been happening in the majority of systems that allow medically assisted death, in such a way that this requirement is entirely subjective, transforming itself into the mere protocol requirement that the petitioner expresses themselves, when formulating the request to die, to the effect that they are in a state of intolerable suffering. However, nothing in the law imposes or even suggests such an interpretation the expression state has a strongly objective connotation and the Constitutional Court, even if its legitimacy to impose a constitutionally sound interpretation of the law were admitted abstractly, would have no way of ensuring, in a control system that does not admit constitutional complaints and in which the case law is scarcely accessible and poorly studied, that such an interpretation would be adopted by the addressees. I therefore believe that the provision in Article 2(1) of the decree is unconstitutional because it violates the combined provisions of Articles 26(1) and 18(2) of the Constitution in other words, because it amounts to an excessive restriction on the right to freely develop personality.
8. It only remains for me to make a few remarks on the majority view expressed in the Ruling.
I have the gravest reservations regarding the way in which the object of the case has been defined, which seems to me to blur the distinction established over decades of constitutional case law between the methodological concept of the norm, a matter that has long occupied legal theory, and the functional concept of the norm, determined with a view to the specific purpose of constitutional justice. But even if we were to disregard the notion of a complete norm in the decision while noting that the individuation of norms is an issue that has been the subject of intense and long-standing academic debate and one that the Constitutional Court would do well to avoid I do not see how it can be said that the judgment of unconstitutionality relates to a single norm taken from Article 2(1) of the decree, nor that it would be inconceivable in the context of an abstract ex post facto review [ ] for the norm to continue to be in force without the criterion that was then deemed unconstitutional. Given the fact that the majority voted for unconstitutionality on the grounds that the concept of extremely severe and permanent injury according to scientific consensus is excessively vague, it is clear that if this were a case of abstract ex post facto review the norm allowing hastened medically-assisted death in cases of incurable and fatal illness or, if we wish to be completely accurate, the norms allowing the hastening of death to be practised, in the first instance, or assisted, in the second, by health professionals, in cases of incurable and fatal illness − would remain in force, provided that the other legal preconditions were met. All this would also have implications for the scope of consequential unconstitutionalities. It is clear that, as this is a case of preventive review, the problem is devoid of practical relevance according to Article 279(1) of the Constitution, the President of the Republic should veto the law and return it to the Assembly of the Republic.
The decision admits the disposability of life in very restrictive terms, stating that in the Portuguese constitutional order, third-party assistance in death, even if self-determined, does not amount to a positive constitutional interest. This is contrary to what is strangely conceded to be the case in other constitutional orders, such as in Germany and Austria, which are not essentially different from ours in terms of fundamental rights, and even in the context of the regional human rights system under the ECHR. The exception to this idea of a qualified general duty to protect and promote life are the cases in which an absolute prohibition of hastened death with third-party support would reduce a person wishing to die, but unable to do so unaided, to a mere object of sincerely unwanted treatment or, alternatively, condemn them to senseless suffering in the face of the inevitable outcome. In these cases it is said it is not about a choice between life and death, but between a long and painful dying process and a quick and peaceful death. Apart from the fact that, in my opinion, this position is essentially indefensible for the reasons I have given regarding the general idea of balancing life as an objective value and the right to freely develop personality I cannot see how, given these premises, which are said to constitute a guiding principle and even a directive, permitting hastened death in cases of extremely severe and permanent injury according to scientific consensus is not unconstitutional by virtue of the inviolability of human life. In fact, excluding situations of incurable and fatal illness, it follows from the directive set out in the decision that hastened death could only be admitted in the event of permanent and fatal injury a decidedly less broad concept than that contained in Article 2(1) of the decree.
By simultaneously affirming the constitutional need for a narrow delineation of cases of hastened medically assisted death within the framework of a legal system of protection that is geared towards life and the insufficient regulatory specificity of the concept of extremely severe and permanent injury, giving as examples ostensibly more extensive legal concepts (such as incapacitating injury or state of dependence), I believe that the majority opinion imposes too heavy a burden on the legislator. Although I agree with the idea that the scientific consensus to which the law defers for specifying the concept of extremely severe and permanent injury is totally spurious the decision on the sufficient severity of the injury should be informed by science, but is ultimately a judgement , I have the greatest difficulty in seeing what other concepts the legislator could have used without losing plasticity. With this ruling of unconstitutionality, approving a satisfactory regime in this area, beyond cases of incurable and fatal illness (a boundary which I believe to be arbitrary), will be a challenge as difficult as making a camel go through the eye of a needle. In addition, the use of more precise concepts, although perhaps advantageous in terms of legal certainty, may well raise delicate issues of equality and proportionality, which will inevitably call for scrutiny by the constitutional judge. The legislator will be forced to navigate between Scylla and Charybdis.
Finally, I believe that with this decision the principle that laws must be determinable becomes a signifier adrift in jurisprudence, a convenient ally in administering a constitutional justice rooted in case law. The actual distance between the present decision and a judgement of unconstitutionality based on the violation of Article 24(1) of the Constitution, interpreted as a norm that protects life as an objective value, is much smaller than might be assumed at first glance. The big difference, in my view, is that only in the latter conception to which I am opposed can one discern a true position of principle, congruent with the basic idea, of particular relevance when dealing with a fractious issue, that the purpose of constitutional jurisdiction in a democratic system is to civilise the exercise of political power through the use of public reason. I therefore consider manifestly unsatisfactory a decision based on a largely impressionistic conception of the determinability of laws drawn from the ether of Article 2 of the Constitution, which is, moreover, alien to the specific constitutional imperatives of defining offences in criminal and fiscal matters, to the regime limiting rights of freedom and similar rights, and to the essential domain of Parliaments exclusive legislative competence the three areas of constitutional law, after all, in which the indeterminate concept of determinability is reasonably determinable.
Gonçalo de Almeida Ribeiro
[1] Rui Medeiros, Jorge Pereira da Silva, comment on Article 24, in Jorge Miranda, Rui Medeiros, Constituição Portuguesa
Anotada, Vol. I, 2nd revised ed., Universidade Católica Editora, Lisbon, 2017, pp. 389-390.
[2] Jorge de Figueiredo Dias, Direito Penal, General Part, 3rd ed., Volume I, Gestlegal, Coimbra, 2019, p. 275.
[3] Manuel da Costa Andrade, annotating Article 134, in Comentário Conimbricense do Código Penal, directed by Jorge de Figueiredo Dias, Volume I, Special Part, 2nd ed.,Coimbra Editora, Coimbra, 2012, p. 96.
[4] One must dive deeper to discover the essence of the rules adopted and applied uniformly in the various legal orders, that is to say, to discover the essence or legal archetype hidden in their various positive representations; in short, to reduce these rules to their most general and unique aspects that are truly able to be applied universally (José Manuel Moreira Cardoso da Costa, Os Princípios Gerais de Direito como Fonte de Direito Internacional, Coimbra, 1963, p. 86, underlining in the original).
[5] When I use the term archetype, I mean a particular item (or ste [sic] of items) in a normative system which has a significance going beyond its immediate normative content, a significance stemming from the fact that it furnishes or sums up or makes vivid to us or seems to provide the key to the point, purpose, policy, or principle (or one of the points, purposes, policies, or principles) of a whole area of law. [Jeremy Waldron Torture and Positive Law: Jurisprudence for the White House, in Columbia Law Review, Vol. 105, No. 6 (Oct., 2005), p. 48].
[6] Jorge Miranda, Curso de Direito Internacional Público, 6th ed., Princípia, Cascais, 2016, p. 125, which places the right to life, as applicable to the human person, within the principle of guaranteeing the inalienable rights set out in Article 4 of the International Covenant on Civil and Political Rights (idem, p. 132); in the same sense, considering that at least the most important rights and freedoms enshrined in the UDHR and the 1966 Covenants already belong to the ius cogens, André Gonçalves Pereira, Fausto de Quadros, Manual de Direito Internacional Público, 3rd ed., reprint, Almedina, Coimbra, 1995, p. 284; in the sense that the customary norms of International Public Law on Human Rights should be considered Ius Cogens norms, Eduardo Correia Baptista, Direito Internacional Público, Vol. I, 1998 (reprint), AAFDL Editora, Lisbon, 2015, p. 171 and Direito Internacional Público, Vol. II, 2004 (reprint), AAFDL, Lisbon, 2015, pp. 431 et seq., in particular, as regards the right to life, pp. 439-440.
[7] Antonio Cassese, International Law, 2nd ed., Oxford University Press, Oxford, 2005, p. 199.
[8] Ngyuen Quoc Dinh, Patrick Daillier, Mathias Forteau, Alain Pellet, Droit International Public, 8th ed., L.G.D.J, Paris, 2009, p. 225.
[9] Similarly, Manuel Diez de Velasco, Instituciones de Derecho Internacional Público, 17th ed., Tecnos, Madrid, p. 650.
[10] To the commandment Thou shalt not kill enshrined in the Book of Exodus (20:13) and repeated in the Book of Deuteronomy (5:17) (cf. Nahum M. Sarna, The JPS Torah Commentary, Exodus, The Jewish Publication Society, Philadelphia, Jerusalem, 1991, p. 113; Jeffrey H. Tigay, The JPS Torah Commentary, Deuteronomy, The Jewish Publication Society, Philadelphia, Jerusalem, 1996, pp. 70-71; The Christian Judge and the Taint of Blood: The Theology of Killing in War and Law, James Q. Whitman, The Origins of Reasonable Doubt. Theological Roots of the Criminal Trial, Yale University Press, New Haven, London, 2008, pp. 28-49).
For those who accept it, the death penalty remains a paradox with regard to the inviolability of human life [see Neil M. Gorsuchs complex attempt to dispel this paradox ([t]o be clear from the outset, I do not seek to address publicly authorized forms of killing like capital punishment and war. Such public acts of killing raise unique questions all their own [ ] I seek only to explain and defend an exceptionless norm against the intentional taking of human life by private persons.), The Future of Assisted Suicide and Euthanasia, Princeton University Press, Princeton, Oxford, 2009, p. 157 and p. 272, note 2].
[11] The constituent MP, José Ribeiro e Castro, in a recent opinion article (02/02/2021) published in the online newspaper Observador, alluded to the extraordinary force of this formulation, compared to the other text proposals presented at the time:
The majority of the draft constitutions in 1975 contained customary legal formulations for protecting the right to life. The CDS draft stated: The right to life and physical integrity [ ] are the individual rights and freedoms of Portuguese citizens [Article 12(1)]. The PS one read: The right to life and physical integrity is guaranteed [Article 11(1)]. The MDP/CDE and UDP had nothing to say on the matter. The PPD one stated: The Right to life and personal integrity is inviolable [Article 17]. It was the PCP that proposed the enshrined proclamation: Human life is inviolable [Article 30(1)] [ ] (the Portuguese texts of the draft Constitutions in question are available at: https://debates.parlamento.pt/catalogo/r3/dac/01/01/01/016S1/1975-07-11).
[12] Human dignity is intangible. Respecting and protecting it is the obligation of all public authorities [Article 1(1)].
[13] Everyone has the right to life and physical integrity. Individual freedom is inviolable. These rights can only be restricted by virtue of law (Basic Law for the Federal Republic of Germany, German version of 23 May 1949, last updated on 28 March 2019, text available at www.bundestag.de).
[14] Constituição da República Portuguesa Anotada, Coimbra Editora, Coimbra, 1978, p. 92.
[15] J. J. Gomes Canotilho, Vital Moreira, CRP. Constituição da República Portuguesa Anotada, Vol. I, 4th ed., Coimbra Editora, Coimbra, 2007, p. 447 legally and constitutionally there is no right to active euthanasia [ ] With regard to orthothanasia
(indirect active euthanasia) and passive euthanasia the right to oppose artificial prolongation of ones life in the case of incurable illness (living will, right to live death), they may justify special rules regarding the organisation of care and monitoring of terminal illnesses (right to die with dignity), but doctors or health personnel are not given any right to abstain from caring for patients (cf. the European Parliament Resolution on the European Charter of Patients' Rights of 19/01/84). The Constitution does not recognise any life with no life value, nor does it guarantee decisions about life itself (ibidem, p. 450).
[16] Jorge Miranda, Rui Medeiros, Constituição Portuguesa Anotada, Vol. I, 2nd ed., op. cit., p. 365.
[17] CRP. Constituição da República Portuguesa Anotada, Vol. I, 4th ed., op. cit., p. 450.
[18] Frédéric Sudre, Laure Milano, Hélène Surrel, Droit européen et international des droits de lhomme, 14th ed., PUF, Paris, 2019, p. 195 and p. 196 cf., as regards the right to life, chronologically, Articles 2 and 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950; Articles 6 and 4(2) of the International Covenant on Civil and Political Rights of 16 December 1966; and, further, Articles 4 and 27(2) of the American Convention on Human Rights of 22 November 1969.
[19] Moreover, also from an internationalist point of view, the right to life was already part of the minimum standards of humanity by Article 3 common to the 4 Geneva Conventions of 12 August 1949 which, according to the International Court of Justice, contains rules corresponding to elementary considerations of humanity [Corfu Channel case (United Kingdom v. Albania), Merits, 9.4.1949, Recueil, 1949, p. 22, taken up in paragraph 218 (and paragraph 215) of the Military and Paramilitary Activities in and against Nicaragua case (Nicaragua v. USA), Merits, 27.6.1986 Recueil, 1986].
[20] Jorge Miranda, Rui Medeiros, Constituição Portuguesa Anotada, Vol. I, 2nd ed., op. cit., p. 366.
[21] Sometimes you cant save everyone. Politicians do have to make decisions that are a matter of life and death. So do health officials. Health resources are not limitless. Whenever a health body is faced with a choice between funding a drug that is estimated to save X lives, and funding another that would save Y, they are, in effect, confronted with a variation of the trolley problem [ ] (David Edmonds, Would You Kill the Fat Man? The Trolley Problem and What Your Answer Tells Us about Right and Wrong, Princeton University Press, Princeton, Oxford, 2014, p. 11; the so-called trolley problems are experimental applied ethics scenarios involving fictional, stylised ethical dilemmas, which envisage, in their simplest form, the sacrifice of one person in order to save a greater number on a hypothetical train line, where someone is faced with the possibility of diverting the train to one branch or another, saving or condemning someone: Indeed, to an outsider, the curious incidents of the trains on the track may seem like harmless fun crossword puzzles for long-stay occupants of the Ivory Tower. But at heart, theyre about whats right and wrong, and how we should behave. And what could be more important than that? ibidem, p. 12).
[22] As far as the issue under consideration here is concerned, this reflects the approach outlined by Jorge de Figueiredo Dias: [ ] in cases which medicine claims to be infrequent nowadays where the terminally ill express their sincere and informed will (or this will must be presumed, when such a manifestation is not possible) to end their life, an understanding and humane accompaniment of death, combined with pain therapy that is as effective as possible (even if it attains the nature of aid to active indirect dying), represents an action that, although it must still be considered treatment, is primarily the responsibility of the physician and has advantages of every kind over legal permission, even under the strictest procedural preconditions, for assisting direct active dying.
[ ] Bearing this in mind, what remains for such permission for assisting direct active dying on a de lege ferenda level, even if it is entirely exceptional? It is our opinion [ ] that a new paragraph be added to the precept on homicide upon request with the following wording:: The court may exempt punishment when death serves to end a state of suffering that is unbearable for the person who dies and which cannot be eliminated or alleviated by other means. (Nótula antes do artigo 131.º, Comentário Conimbricense do Código Penal, directed by Jorge de Figueiredo Dias, Volume I, Special Part, 2nd ed., op. cit., pp. 33-34, emphasis in the original; text also published in Revista de Legislação e de Jurisprudência A ajuda à morte: uma consideração jurídico-penal , Year 137, March/April, 2008, no. 3949, p. 215).
[23] Cf. Jorge de Figueiredo Dias, Direito Penal, General Part, Volume I, op. cit., pp. 511-514, and António Menezes Cordeiro, annotating Article 337 of the CC, in Código Civil Comentado, I General Part (coord. António Menezes Cordeiro), Almedina, Coimbra, 2020, pp. 958-960 and 963-965.
[24] And, also, with reference to euthanasia: What upsets you most? I know people are going to die and its always extremely hard for us doctors. We never get used to seeing patients die. Never. Never. Weve been trained for life. Not for death. Watching people die is the biggest burden of it all. No matter how experienced the doctor, we never get used to it. Never. And in intensive care the rate of patients dying on a daily basis is very high. But I never got used to it. No doctor gets used to it. Thats why when the issue of euthanasia is discussed, were not trained for it. Were trained to alleviate suffering and prolong life when its possible to prolong it. When its not possible, we should provide a death free from suffering, or with as little suffering as possible. What upsets me is the patients who are going to die, Expresso Revista of 27/12/2020, p. 56, https://expresso.pt/coronavirus/2020-12-27-O-coronavirusesta-a-assustar-mais-do-que-a-sida-a-entrevista-ao-primeiro-vacinado-quando-a-covid-ainda-estava-no-comeco.
[25] Cf. Art. 6(1) of Regulation 698/2019 of the Order of Physicians, which defines proper medical practice (Official Gazette,
2nd Series, No. 170, of 5 September 2019).
[26] Death should never be sought or engineered as a therapeutic option to end suffering (George P. Smith, II, Palliative Care and End-of-Life Decisions, Palgrave Macmillan, New York, 2013, p. 23).
[27] In other words, in the relationship between the value of life and the value of autonomy, self-determination does not prevail over life, thus not allowing the inversion of constitutional values that accepting euthanasia necessarily implies.
[28] David Edmonds, Would You Kill the Fat Man?..., op. cit., pp. 28-34.
[29] Il diritto di morire non esiste, Il Fatto Quotidiano di Silvia Truzzi, 14 December 2011, accessible at the following link: https://www.ilfattoquotidiano.it/2011/12/14/piazza-grande-il-diritto-di-morire-non-esiste/.
[30] In November 2018, as part of the debate in Italy engendered by the Cappato case, the same judge, in an oral debate held on the 25th of that month (A chi appartiene la tua vita? Leutanasia come diritto umano, available at https://www.youtube.com/watch?v=3riFXa3QDwl), had the following to say (this is a transcription): [ ] If you ask me, Im not in favour of the state... (the state was historically born to protect the lives of citizens: the modern state, the sovereign state, exists, it is said classically, to defend the ultimate goods of citizens: property and life).
So I think that the state should first of all do everything possible so that an individual does not find themselves in the situation of wanting to make an ultimate decision of this kind. This applies to moral suffering in particular. Because then, if a right were said to exist, what should happen? Our hospital structures would have to provide the services for exercising this right, and thus spend money ..., taking away the resources needed for uses that should be primary, priority uses, i.e. those intended for treating and supporting people, including psychologically. I say this while adding, however, that the solution based on compassion, which is the one normally practised in our operating structures, must be the one favoured. Favoured, with just one restriction: to avoid the death sought being determined by the pecuniary interests of potential heirs, that is to say, there must be a cordon sanitaire that excludes any speculation on these things.
But frankly, Im not sure its a particularly rigorous consideration from a legal point of view. For me, if the state organises its public health structures to provide death, naturally once this step is taken, private structures must also be allowed agreed structures for an obvious reason of equality, and so on this facet of requested death a substantially commercial system could be constructed.
Just look at the difficulties. [ ].
[31] Cf. Thomas C. Schelling, The Strategy of Conflict, Harvard University Press, Cambridge, Massachusetts, 1980 ed., pp. 34 and 158-160).
[32] J. David Velleman, Beyond Price. Essays on Birth and Death, Open Book Publishers, Cambridge UK, 2015, p. 10.
[33] Ibidem, p. 11. It is in this regard that Thomas Schelling speaks of a paradox of strategic advantage, which is really a disadvantage that distorts the decision-making process by polluting it (The Strategy of Conflict, op. cit., pp. 158-160).
[34] Ibidem, p. 160, note 30.
[35] J. David Velleman, Beyond Price , op. cit., p. 13.
[36] Ibidem, p. 15.
[37] Sissela Bok, Euthanasia, in Euthanasia and Physician-Assisted Suicide, Gerald Dworkin, R. G. Frey, Sissela Bok, Cambridge University Press, Cambridge, 1998, p. 109.
[38] Jorge Miranda, António Cortês, annotating Article 1, in Jorge Miranda, Rui Medeiros, Constituição Portuguesa Anotada, Vol. I, 2nd ed., op. cit., p. 65.
[39] David Albert Jones, Is Dignity Language Useful in Bioethical Discussion of Assisted Suicide and Abortion?, in Understanding Human Dignity (Ed. Christopher McCrudden), Oxford University Press, Oxford, 2014, p. 531.
[40] [ ] persons who have long-term physical, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others [ ] cf. Article 1 of the Convention on the Rights of Persons with Disabilities, of 13 December 2006 (approved by Assembly of the Republic Resolution no. 56/2009, of 30 July and ratified by Presidential Decree No. 71/09, of 30 July).
[41] We have adapted here the formulation of the problem by J. David Vellman, Beyond Price , op. cit., p. 28.
[42] Borrowing the expression that, in 1943, the Supreme Court of the United States used in the West Virginia State Board of Education v. Barnett ruling [319 U.S. 624 (1943)], as reported by Justice Robert Jackson, in one of the so-called flag-salute cases, when he stated that The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities [...] and to establish them as legal principles to be applied by the courts. [...].