Active euthanasia is punishable in Germany. You can give someone who wants to die an overdose, but they have to take it themselves. Now the top criminal judges are challenging this principle.
Karlsruhe – A woman helps her bedridden husband commit suicide by injecting him with a fatal overdose of insulin herself – and according to the Federal Court of Justice (BGH) has not made herself a criminal offence. The chief criminal judges overturned her conviction for manslaughter and acquitted her. The behavior of the retired nurse constitutes unpunished assisted suicide, according to the decision of the 6th Criminal Senate in Leipzig of June 28th published on Thursday. Patient protectors reacted in horror, they see a dam breach. (Az. 6 StR 68/21)
In Germany, suicide is not punishable and, in principle, assisting in it is not either. It is different with active euthanasia: “If someone has been determined to kill by the express and serious request of the dead person, then a prison sentence of six months to five years is to be recognized,” says Section 216 of the Criminal Code.
This was previously understood to mean, for example, that a relative may put a lethal drug by the bedside of the person who is willing to die. But he has to take it himself.
Man suffered from chronic pain for years
For the couple from near Magdeburg, who have been married for decades, the man’s wish to die has been an issue for a long time. He had been suffering from chronic pain, diabetes, depression and a number of other illnesses for years and most recently needed nursing care.
One day in August 2019, he felt so bad that he said to his wife: “Today we’ll do it.” He first asks her to collect all the pills in the house for him and swallows them after the woman takes them out of the packages for him pressed. He himself is no longer able to do this because of his arthrosis in his hands. Then he asks her to get all the insulin syringes that are still in stock. The woman gives him six injections, from which he dies during the night. As discussed, she does not inform a doctor.
The district court in Stendal had sentenced the woman to one year in prison in November 2020. She actively used the syringes. Her husband put his life in her hands.
According to the BGH judges, this “does not do justice to the special features of the case”. They see taking the pills and the insulin shots as a “single life-ending act.” Only the man who would have died from the pills – only later – decided on the execution. He also did not ask to call the emergency services.
Basic doubts expressed about penal provisions
The Senate also expresses fundamental doubts about the criminal provision of paragraph 216. The judges refer to the major euthanasia ruling of the Federal Constitutional Court from February 2020. At the time, this had declared the ban on so-called commercial euthanasia (paragraph 217 StGB) to be void, with which politicians wanted to put a stop to the euthanasia associations in particular. Every human being has a right to self-determined death – and that includes the freedom to take one’s own life and to resort to the voluntary help of third parties.
The BGH judges indicate that, from their point of view, these principles must be transferrable to paragraph 216: An exception should be made at least in cases “in which it is actually impossible for a person willing to die to implement their decision made without a lack of will, to end her life, she is rather dependent on another person to carry out the action leading directly to death”.
The German Foundation for Patient Protection is alarmed. Board member Eugen Brysch sees the boundary between assisted suicide and active euthanasia blurring. “With its decision, the Federal Court of Justice has de facto lifted the criminal prohibition on killing on request,” he said. This “broke the dam to active euthanasia”. He called on the Bundestag to provide clarification. “Killing by others must remain prohibited. Otherwise the social pressure on the elderly, those in need of care, the seriously ill and the disabled will increase.”
MEPs are currently struggling to find a successor to the overturned paragraph 217. There are three cross-party drafts that were first discussed in plenary in June. dpa