The Constitutional Court of Austria
11 December 2020
IN THE NAME OF THE REPUBLIC!
The Constitutional Court,
chaired by President
Christoph GRABENWARTER,
in the presence of Vice-President
Verena MADNER
and the members
Markus ACHATZ,
Wolfgang BRANDSTETTER,
Sieglinde GAHLEITNER,
Andreas HAUER,
Christoph HERBST,
Michael HOLOUBEK,
Helmut HÖRTENHUBER,
Claudia KAHR,
Georg LIENBACHER,
Michael RAMI,
Johannes SCHNIZER, and
Ingrid SIESS-SCHERZ
as voting members, in the presence of the recording clerk–Josefa BREITENLECHNER
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decided today pursuant to Article 140 of the Constitution (Bundes- Verfassungsgesetz, B-VG) on the applications filed 1. by ****************, ***********, *************, **** ********, 2. by ***********, ***********, **** ********************, 3. by *************, **************, **** ************, and 4. by *****************, ***************, **** ****, all represented by Zacherl Schallaböck Proksch Manak Kraft Rechtsanwälte GmbH, Teinfaltstraße 8/5.01, 1010 Vienna,
to repeal as unconstitutional section 77 and section 78 of the Criminal Code (Strafge-setzbuch – StGB), after a public oral hearing on 24 September 2020, after having heard the presentation by the Judge Rapporteur and the statements by the representative of the applicants’ legal counsel Wolfram Proksch, the resource persons consulted by the applicants ******************** and ************, the representatives of the Federal Government Albert Posch, Georg Kathrein, Christian Pilnacek and Michael Kierein as well as the resource persons consulted by the Federal Government ****************************** and ************************, and pronounced the following:
I. 1. The phrase “or assists them in doing so” in section 78 of the Federal Law
on Acts Subject to Judicial Sanction of 23 January 1974 – Criminal Code
(Bundesgesetz vom 23. Jänner 1974 über die mit gerichtlicher Strafe bedroh-
ten Handlungen [Strafgesetzbuch – StGB]), Federal Law Gazette BGBl.
60/1974, has been found to be unconstitutional and is therefore repealed.
2. The repeal shall enter into force as of the end of 31 December 2021.
3. Previous legal provisions shall not re-enter into force.
4. The Federal Chancellor is obliged to publish these sentences without delay in Federal Law Gazette I
II. The application, as far as it refers to section 77 of the Criminal Code (StGB),is rejected.
III. The application is otherwise dismissed.
IV. The Federation (Federal Minister of Justice) is liable to refund the applicants
for court fees assessed at a total of € 1,809.60, payable to their legal repre-
sentative within 14 days, failing which such payment shall be enforced.
Reasoning
I. The application
1. Through their application based on Article 140, paragraph 1, sub-paragraph 1,
point (c) of the Constitution (B-VG), the applicants demand that “the high Consti-
tutional Court initiate legal review proceedings within the meaning of sections 62
et seq. of the Constitutional Court Act (Verfassungsgerichtshofgesetz – VfGG) in
respect of the challenged provisions of section 77 and section 78 of the Criminal
Code (StGB), Federal Law Gazette BGBl. 60/1974, entered into force on 1 January
1975, in the current version, conduct oral hearings, and repeal the provisions as
unconstitutional”.
2. At the same time, the applicants request that “the obligation to refund the
court fees be imposed upon the Federation, demanding that they be awarded all
regular expenses, plus VAT, within the meaning of section 27 of the Constitu-
tional Court Act”.
II. The law
1. Section 77 and section 78 of the Federal Law on Acts Subject to Judicial Sanction
of 23 January 1974 – Criminal Code, (Bundesgesetz vom 23. Jänner 1974 über die
mit gerichtlicher Strafe bedrohten Handlungen [Strafgesetzbuch – StGB]), Federal
Law Gazette BGBl. 60/1974, read as follows:
“Killing on request
§ 77. Anyone who kills another person upon their serious and emphatic request
is to be sentenced to a prison terms of between six months and five years.
Assistance to suicide
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§ 78. Anyone who induces another person to kill themselves or assists them in
doing so is to be sentenced to a prison term of between six months and five
years.”
2. Section 49 and section 49a of the Federal Act on the Exercise of the Medical
Profession and the Professional Representation of Physicians (Ärztegesetz 1998 –
ÄrzteG 1998), Federal Law Gazette BGBl. I 169/1998, as amended by Federal Law
Gazette BGBl. I 20/2019, read as follows:
“Treatment of the sick and care for the healthy
§ 49. (1) Physicians are obliged to conscientiously provide care for any healthy or
sick person accepted for medial counselling or treatment, irrespective of the
person concerned. They have to undergo continuing education within the
framework of recognized continuing medical education programmes offered by
the regional chambers of physicians (Ärztekammern in den Bundesländern) or
the Austrian Chamber of Physicians or within the framework of recognized
foreign continuing education programmes and act for the benefit of the sick and
protection of the healthy in accordance with medical science and experience and
in compliance with the provisions in effect and the specific quality standards of
their medical discipline, in particular on the basis of the Health Care Quality Act
(Gesundheitsqualitätsgesetz – GQG), Federal Law Gazette BGBl. I 179/2004.
(2) Physicians have to exercise their profession personally and directly, if
necessary in cooperation with other physicians and representatives of another
scientific discipline or another profession. They are, however, allowed to use the
services of assistants, provided the latter act according to their detailed
instructions and under their constant supervision.
(2a) Physicians and medical group practices have to regularly perform a
comprehensive quality evaluation and communicate the results thereof to the
Österreichische Gesellschaft für Qualitätssicherung & Qualitätsmanagement in
der Medizin GmbH, depending on their technical equipment, by electronic data
transfer.
(2b) If the evaluation or control identifies an immediate health hazard or if the
evaluation pursuant to paragraph 2a is not performed for reasons within the
responsibility of the physician or the group practice, this constitutes a severe
breach of professional duty and, as such, ground for termination of employment
within the meaning of section 343 paragraph 4 of the General Social Security Act
(Allgemeines Sozialversicherungsgesetz – ASVG), Federal Law Gazette BGBl.
189/1955, if the quality standards of the specific medical discipline in terms of
process and structural quality are concerned.
(2c) Physicians entitled to independently exercise their profession have to
provide credible evidence of having undergone continuing medical education to
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the Austrian Chamber of Physicians every three years. Physicians have to submit
such reports not later than three months after the expiry of the respective
continuing education period (cumulative period). The Austrian Chamber of
Physicians has to review and evaluate these reports and use them as a basis for
reporting pursuant to section 117b paragraph 1 subparagraph 21 point (e). To
fulfil this task, the Austrian Chamber of Physicians may use the services of a
subsidiary.
(3) On a case-by-case basis, physicians may delegate medical activities to
members of other health professions or persons in training for a health
profession, provided the delegated activites are within the range of activities
performed by the respective health profession. The physicians assume
responsibility for the instructions given. Medical supervision is not required if the
provisions governing the execercise of the respective health professions do not
forsee supervision of the performance of the delegated medical activities by a
physician.
(4) Students of medicine in the course of their training, provided they are
trustworthy and in an adequate state of health, shall be entitled to perform the
activities specified in paragraph 5, subject to and under instructions from the
training physicians. Medical interns shall be allowed to act as substitutes for such
physicians, provided the head of the department providing training for the
medical interns confirms in writing that these medical interns have the necessary
medical knowledge and experience.
(5) Activities within the meaning of paragraph 4 are:
1. medical history taking,
2. simple physical examination of the patient, including blood pressure
measurement,
3. taking venous blood samples,
4. administering intramuscular and subcutaneous injections, and
5. performing other medical activities, provided mastery of such activities is a
mandatory requirement for the successful completion of studies in medicine
and the students of medicine in training certifiably have the necessary
knowledge and experience to conscientiously perform these activities,
considering the degree of difficulty of such activities.
(6) Paragraphs 4 and 5 apply, mutatis mutandis, to persons whose applications
for nostrification of studies in human medicine completed abroad are subject to
a nostrification procedure at an Austrian University of Medicine or an Austrian
University comprising a School of Medicine.
Assistance to the dying
§ 49a. (1) Physicians have to provide assistance to dying patients taken over for
treatment, while respecting the patients’ dignity.
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(2) Within the meaning of paragraph 1, measures taken within the framework of
indications of palliative medicine, in particular for dying patients, the benefit of
which in relieving the most severe pain and suffering outweighs the risk of an
accelerated loss of vital functions, are permitted.”
3. The relevant provisions of the Federal Act on Living Wills (Patienten-
verfügungs-Gesetz – PatVG), Federal Law Gazette BGBl. I 55/2006, as amended
by Federal Law Gazette BGBl. I 12/2019, read as follows:
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made available, possibly involving the ELGA ombudsperson’s office pursuant to
section 17 GTelG 2012, is to be laid down in a regulation pursuant to section 14d.
Renewal
Section 7. (1) A binding living will shall no longer be binding upon expiry of a
period of eight years after its establishment, unless the patient has set a shorter
deadline. Pursuant to section 5, it can be renewed after the required information
has been provided by a physician, whereby a new eight-year period or a shorter
deadline set by the patient commences.
(2) If the renewal is performed in the presence of one of the persons specified in
section 6 paragraph 1, the requirements of section 6 paragraphs 1 and 2 apply.
(3) If individual parts of the living will are amended or supplemented
retroactively, this shall be deemed equivalent to renewal. In such case, the
procedure pursuant to paragraphs 1 and 2 is to be followed. With any retroactive
amendment, the deadline for the entire living will, as defined in paragraph 1,
commences anew.
(4) If a living will has been recorded in a register, a lawyer or public notary is
obliged, depending on the technical possibilities and considering the special legal
provisions applicable to the respective register, to record an amended or
supplemented living will brought to his knowlegde in this register; the procedure
pursuant to section 6 paragraph 2 applies in addition.
(5) A living will shall not lose its binding nature as long a the patient is unable to
renew it for reasons of incapacity to decide.
Chapter 3
Significance of other living wills
Requirements
Section 8. A living will which does not meet all the requirements of sections 4 to
7 is nevertheless to be taken as a basis for determining the patient’s will.
Account to be taken of the living will
Section 9. In determing a patient’s will, a living will pursuant to section 8 is to be
taken into account all the more, the closer it comes to meeting the requirements
of a binding living will. In particular, it is to be taken into account
1. inhowfar the patient was able to assess the medical condition to which the
living will refers and its consequences at the time of establishment of the living
will,
2. how specific the descriptions of the medical treatments subject to the
patient’s refusal are,
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3. how comprehensive the information provided by a physician prior to the
establishment of the living will was,
4. inhowfar the living will deviates from the formal requirements for a binding
living will,
5. how much time has elapsed since the last renowal, and
6. how often the living will was renewed.
Chapter 4
Joint Provisions
Ineffectiveness
Section 10. (1) A living will shall be ineffective if
1. it has not been declared freely and seriously or declared by mistake, malice,
deception or physical or psychological coercion,
2. its content is prohibited by criminal law, or
3. the state of medical science has changed significantly in respect of the content
of the living will since its establishment.
(2) A living will shall lose its effectiveness if the patient himself/herself revokes it
or indicates that he/she no longer wishes it to remain in effect.
Other content
Section 11. The effectiveness of a living will shall not be counteracted by the fact
that it contains other comments by the patient, in particular the name of a
certain person of trust, the refusal of contact with a certain person or the
obligation to inform a certain person.
Emergencies
Section 12. This Federal Act shall have no impact on medical emergency care if
the time taken for the search for a living will seriously endanger the patient’s life
or health.
Duties of the patient
Section 13. By establishing a living will, the patient cannot restrict a duty to
undergo treatment that may result from special legal provisions.
Documentation
Section 14. (1) Physicians providing information and treatment have to include
living wills in the case history or, if living wills are established at a place other
than a hospital, in their medical documentation.
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(2) If a physician, while providing information pursuant to section 5, notices that
the patient does not have the decision-making capability required for the
establishment of a living will, documentation thereof, possibly within the
framework of the case history, is obligatory.
(3) Pursuant to section 14a, a patient can transmit a living will to the ELGA
ombudsperson’s office for storage in ELGA pursuant to section 17 GTelG 2012.
[…]
Administrative penal provision for protection against abuse
Section 15. Anyone who makes access to treatment or care facilities or the
receipt of such services dependent on the establishment or non-establishment of
a living will commits an administrative offence and, unless the act is punishable
under criminal law, shall be fined up to EUR 25.000 or, in the event of a repeat
offence, up to EUR 50.000.
[…]”
III. Application and Preliminary Proceedings
1. The applicants justify their application as well as the concerns raised in respect
to the challenged provisions as follows (without highlighting in the original):
…
2. The Federal Government submitted a statement on the admissibility of the
application and the concerns raised, which reads as follows:
…
3. The applicants submitted a reply to the statement by the Federal Government,
in which they countered the arguments presented by the Federal Government in
respect of the admissibility of the application and on the merits of the case.
4. On 24 September 2020, the Constitutional Court held a public oral hearing
during which, in particular, issues relating to the constitutionality of section 78 of
the Criminal Code (StGB) were debated at length.
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5. Following this public oral hearing, the applicants submitted a further brief, in
which they sought to invalidate some of the arguments put forth by the Federal
Government in the course of the public oral hearing.
IV. Considerations
A. On admissibility
1. Pursuant to Article 140 paragraph 1 subparagraph 1 point c) of the
Constitution (B-VG), the Constitutional Court decides on the unconstitutionality
of laws upon application by an individual claiming that his/her rights are directly
violated by such unconstitutionality, provided this law took effect for that
individual without a court decision having been rendered or an administrative
ruling having been issued.
The admissibility of an application pursuant to Article 140 paragraph 1
subparagraph 1 point c) of the Constitution (B-VG) requires, on the one hand,
that the applicant claims that his/her rights have been violated by the challenged
law – in view of its unconstitutionality – and, on the other hand, that the law
actually took effect for the applicant without a decision having been rendered by
a court or an administrative ruling having been issued. The fundamental
requirement for an application to be admissible is that the law interferes with
the legal sphere of the applicant to the latter’s disadvantage and, if found to be
unconstitutional, violates the individual’s legal sphere. In any such case, the
Constitutional Court must base itself on the application submitted and merely
review if the effects maintained by the applicant are such as required by Article
140 paragraph 1 subparagraph 1 point c) of the Constitution (B-VG) for the
application’s admissibility (cf. e.g. VfSlg. 11.730/1988, 15.863/2000,
16.088/2001, 16.120/2001).
Furthermore, another requirement is that the law itself actually interferes
directly with the legal sphere of the applicant. Such interference is to be as-
sumed only if it is unambiguously determined by the law itself, if the (legally
protected) interests of the applicant are not only potentially but actually im-
paired, and if no other reasonable way of rejecting the – alleged – unlawful
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interference is available to the applicant (VfSlg. 11.868/1988, 15.632/1999,
16.616/2002, 16.891/2003).
2. The first and third applicants justify the admissibility of their application with
their severe and incurable diseases and, resulting therefrom, their decisions –
taken freely and on the basis of full legal capacity – to choose a self-determined
death by way of assisted suicide. The first and third applicants both maintain that
they intend to resort to assisted dying legally permitted in another country (in
particular in Switzerland), but that for lack of mobility they are unable to do so
without another person’s assistance (or that, in the case of the third applicant,
this will no longer be possible in the future due to the progression of the
disease).
The second applicant justifies the admissibility of his application with his fear of a
severe or incurable future disease, upon the onset of which he wishes to decide
freely and on the basis of self-determination when and how to end his life. Like
the first and third applicants, he maintains that, in the event of such disease, he
does not want to find himself in a state of dependence on third-party assistance
or be put into a “mental twilight” state through the administration of painkillers
or other medicines. Furthermore, it is stated that the second applicant was
already convicted by a final court judgment for the crime of assistance to suicide
pursuant to section 78 of the Criminal Code (StGB) on 16 July 2018.
The fourth applicant justifies the admissibility of his application by referring to
his professional activitiy as a general practitioner and a specialist in
anaesthesiology and intensive care, in the course of which he is frequently
confronted with patients’ wishes for assisted dying or active euthanasia, which
he is not able to fulfil without being liable to suffer consequences under criminal
law and disciplinary and professional regulations. At the same time, in the case
of assisted dying on the basis of living wills, advance directives and the like he
frequently found himself confronted with difficult questions regarding the
patient’s (presumable) will, which pushed him, as a physician, into a legal grey
area.
3. As regards an individual application to repeal a law, the Constitutional Court
has held in its established case law that the purpose of such application is to
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eliminate the alleged violation of an individual’s rights by repealing the contested
provision of the law. Hence, if the legal position of the applicant does not change
despite the repeal of the contested provision of the law, his/her application is
not admissible (VfSlg. 13.112/1992).
As regards the challenge to section 77 of the Criminal Code (StGB), it is to be
noted that – as rightly emphasized by the Federal Government – the criminal
offence of killing on request is subject to less severe punishment than murder
pursuant to section 75 of the Criminal Code (StGB) and constitutes lex specialis
overriding section 75 of the Criminal Code (StGB). Unlike section 78 of the Crimi-
nal Code (StGB), which constitutes a separate case, sections 75 and section 77 of
the Criminal Code (StGB) refer to the same fundamental fact (cf. explanatory
note on government bill 30 BlgNR 13th legislature, 196; Birklbauer, § 77 StGB,
in: Höpfel/Ratz [ed.], Wiener Kommentar zum StGB2, 216. Lfg. 2019, point 1).
This leads to the conclusion that, in the event of section 77 of the Criminal Code
(StGB) being repealed, killing another person within the framework of assisted
dying would remain punishable pursuant to section 75 of the Criminal Code
(StGB) and the outcome intended by the applicants, i.e. impunity of active
euthanasia, could therefore not be achieved. On the contrary, repealing section
77 of the Criminal Code (StGB) would even lead to more severe punishment, a
result by no means intended by the applicants.
As regards the applicants’ challenge to section 77 of the Criminal Code (StGB),
the application proves to be too narrow in scope.
4. On the basis of the applications filed by the first, second and third applicants,
the Constitutional Court has no doubt that section 78 of the Criminal Code (StGB)
directly and currently interferes with the applicants’ legal sphere:
4.1. The prohibition of particpation in a person’s suicide laid down in section 78
of the Criminal Code (StGB) is addressed to third parties, such as the fourth
applicant, but not to the person potentially willing to commit suicide.
Nevertheless, the first, second and third applicants are also affected by the
challenged provision, because the challenged provision affects the first, second
and third applicants not merely in actual fact, but significantly in their legal
position. If a prohibition addressed to third parties also aims to restrict the
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freedom of action of certain persons, even if the latter are not directly addressed
by the provision, such persons are also affected by such prohibition. The
prohibition laid down in section 78 of the Criminal Code (StGB) addressed to
third parties makes it impossible for the first, second and third applicants to avail
themselves of the desired third-party participation in suicide. Hence, the
challenged section 78 of the Criminal Code (StGB) has the effect of a legal order
addressed to them in law.
4.2. Contrary to the opinon expressed by the Federal Government in its
statement, the second applicant, alongside the first and third applicants, is
currently also affected by section 78 of the Criminal Code (StGB):
In justifying his application, the second applicant maintains that he is perfectly
healthy but, should he in future develop a disease associated with severe pain
and suffering, he wants to be able to decide autonomously when and how to end
his life. Moreover, the second applicant states that he was already convicted
pursuant to section 78 of the Criminal Code (StGB) by final judgement on 16 July
2018 for the crime of assisting in the suicide of his wife suffering from cancer.
In the opinion of the Constitutional Court, the fact of being currently affected by
section 78 of the Criminal Code (StGB) does not require that the second
applicant be incurably ill or for other reasons (currently) wish to die (currently)
through third-party assistence at the time of his application or the decision by
the Constitutional Court. According to the application filed by the second
applicant, the latter’s legal sphere is currently being impaired by section 78 of
the Criminal Code (StGB), as the penal provision prevents him from taking
measures for self-determined dying with another person’s assistance, because
such person would be liable to prosecution.
4.3. The first, second and third applicants had no other way of putting the
question of the constitutionality of the challenged provision before the
Constitutional Court. In view of the conviction of the second applicant by a
criminal court for his participation in his wife’s suicide, the criminal proceedings
before the regional court of Wiener Neustadt constituted no reasonable way of
seizing the Constitutional Court with the concerns expressed in the present
application. In the present application, the second applicant expresses his
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concerns regarding section 78 of the Criminal Code (StGB) from the viewpoint of
an individual wishing to avail himself of assistance in dying; hence, for this reason
alone, the aforementioned criminal proceedings cannot be regarded as a
resonsable way.
5. Moreover, in respect of section 78 of the Criminal Code (StGB), the admissibil-
ity of the fourth applicant’s application is to be approved as well.
According to the wording of the provision, section 78 of the Criminal Code
(StGB), as mentioned above, does not address persons potentially willing to
commit suicide, but third parties, such as the fourth applicant. The Constitutional
Court has no doubt that the legal sphere of the fourth applicant is affected by
the prohibition laid down in section 78 of the Criminal Code (StGB) (cf. e.g.
VfSlg. 8009/1977, 14.321/1995, 15.127/1998, 15.665/1999, 20.002/2015). In the
event of contravention, the fourth applicant was liable to be prosecuted under
criminal law. Moreover, the fourth applicant is bound to exercise his profession
“in compliance with the legal provisions in effect” (section 49 Physicians’ Act
1998, ÄrzteG 1998) and, in particular, the penal provisions in effect.
Moreover, the fourth applicant as well had no other way of bringing the question
of the constitutionality of section 78 of the Criminal Code (StGB) before the
Constitutional Court. In particular, the fourth applicant cannot reasonably be
expected to provoke criminal proceedings in order to enable the filing of an
application pursuant to Article 140 paragraph 1 subparagraph 1 point a) of the
Constitution (B-VG) or to file an application as a party to the case pursuant to
Article 140 paragraph 1 subparagraph 1 point d) of the Constitution (cf. also
VfSlg. 14.260/1995, 15.589/1999).
6. Since nothing was discovered that would have given rise to doubts about
other procedural requirements being met, the application to repeal section 78 of
the Criminal Code (StGB) is found to be admissible. The application is otherwise
to be rejected as inadmissible.
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whereby the decision in favour of palliative measures does not exclude curative
measures. If the patient is in possession of the capacity to decide and act, his/her
agreement to measures of palliative medicine as an alternative to the current
therapy or in addition to the latter provides the necessary legal certainty for the
treating physicians.
However, this regime does not address those groups of cases in which patients
no longer have the capacity to decide and their (presumed) will cannot be de-
termined and in which a change of the therapeutic target may result in a short-
ening of the patient’s life. This issue is to be further explored on the basis of the
relevant penal provisions and the professional code of ethics for physicians.
In any case, active euthanasia is punishable in Austria either as an act of murder
(section 75 StGB), killing on request (section 77 StGB) or assistance to suicide
(section 78 StGB). In view of the aforementioned offence of unauthorized cura-
tive treatment, sections 75, 77 and 78 of the Criminal Code (StGB) do not apply
in the case of discontinuation or withdrawal of therapy, if the discontinuation of
treatment corresponds to the patient’s will or, in other words, the continuation
of treatment would be deemed to be unauthorized curative treatment. Likewise,
the consensual omission of measures likely to make dying more difficult is
permitted, if the primary aim is not to shorten the patient’s life, but if such
omission is merely tolerated as a side effect of the primary aim of reducing pain
and suffering. To determine the appropriate conduct in the groups of cases
referred to earlier, i.e. cases in which the patient’s will has not been expressed or
cannot be determined, reference to the physicians’ code of professional practice
is advisable.
There should be consensus between medical science and the law that measures
which merely prolong the process of dying correspond neither to the require-
ments of conscientious care nor to the principle of acting in the patient’s best
interest. Years ago, for example, Kopetzki already pointed out that treatment
need not be initiated or continued if it is not indicated from a medical point of
view or – to the same effect – if it is ineffective and therefore no longer likely to
produce a successful outcome or even without any prospect of success. This
includes situations in which the unstoppable process of dying has commenced
and would only be prolonged through further medical interventions (Kopetzki,
Einleitung und Abbruch der medizinischen Behandlung beim einwilligungsun-
fähigen Patienten, iFamZ 2007, 197 (201), with further references).
Along the same lines, the Austrian Bioethics Commission notes in its Recommen-
dations on Dying in Dignity that medical interventions which provide no benefit
for the patient or which are more burdensome than potentially beneficial to the
patient, and which may lead to a prolongation of the dying process in end-of-life
situations, are ethically and medically unjustified because they come at a dispro-
portionate burden. If there is a potential, hypothetical future benefit for the
patient, the criterion of proportionality is to be applied, which means that the
current burden is to be weighed against the hypothetical probability of a future
benefit. This task falls upon the physician (Opinion of the Bioethics Commission,
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09.02.2015, Dying with Dignity, Recommendations on Assistance and Care for
persons in end-of-life situations and related questions, p.30).
One might conclude from the above that fundamental rights, criminal law and
the code of professional practice for physicians provide a clear answer and
ensure sufficient legal certainty regarding decisions to be taken by physicians at
the end of a patient’s life. However, against the background of the criminal
proceedings described earlier and the resultant uncertainty caused among
physicians working in the field of palliative medicine, the question arises whether
action by the legislator is required in order to create clarity through the letter of
the law instead of leaving the matter to juridical interpretation. This applies, in
particular, to situations in which patients are in an unstoppable process of dying
and the primary aim of medical measures therefore is to reduce pain and suffer-
ing. The report by the Parliamentary Study Committee, 491 BlgNR 25th legisla-
ture, also underlines the importance of palliative care (see, in particular, recom-
mendations 23 and 50).
Subject matter to be regulated:
Based on the example of the (Model) Professional Code for Physicians in Germa-
ny ([Muster-]Berufsordnung für die in Deutschland tätigen Ärztinnen und Ärzte –
MBO-Ä 1997), the new provision of section 49a is to lay down a duty for physi-
cians to provide assistance to the dying.
According to the principles of the Federal Chamber of Physicians regarding
medical assistance to the dying, the physician is obliged to support the dying, i.e.
persons who are sick or injured and suffer from irreversible failure of one or
several vital functions and are therefore expected to die soon, in such a way as
to enable them to die in dignity. The support to be provided consists in palliative
care and, hence, in ensuring that the patient receives assistance and basic care.
This does not always include the supply with food and liquids, as this may be a
heavy burden for the dying. However, subjectively felt hunger and thirst must be
satisfied. Measures that merely delay the occurrence of death are to be avoided
or terminated. Relieving a dying person’s suffering may take priority so that the
physician is allowed to accept a resultant possible unavoidable shortening of the
patient’s life.
Thus, section 49a paragraph 1 states that physicians who have taken over dying
persons for treatment have to support them while preserving their dignity.
The respective treatment contracts are subject to the general conditions appli-
cable in such cases.
According to section 49 paragraph 1 of the Physicians Act 1998 (ÄrzteG 1988),
the physician is obliged, inter alia, to conscientiously provide care for every
person, healthy or sick, without discrimination […] and, based on the state of
medical science and experience and in conformity with the rules in effect and the
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specific quality standards of the medical discipline concerned, […] act in the best
interest of the patient.
In the context of the medical duty of care pursuant to paragraph 1 of section 49a
and the duty to preserve the patient’s well-being pursuant to section 49 para-
graph 1 of the Physicians Act 1998 (ÄrzteG 1998), section 49a paragraph 2
additionally specifies that in the case of dying patients measures are allowed
within the framework of quality-assured palliative indications the benefit of
which in alleviating the most severe pain and suffering outweighs the risk of an
accelerated loss of vital functions. It goes without saying that the new section
49a does not change the fact that active euthanasia remains prohibited as a
criminal offence under sections 75, 77 and 78 of the Criminal Code (StGB).
Section 49 paragraph 1 of the Physicians Act 1998 (ÄrzteG 1998), pursuant to
which the medical profession must be exercised in compliance with the legal
provisions in effect, meets, in particular, the requirement of unity of the legal
system.
The term ‘suffering’ used in section 49a paragraph 2 refers to pain or states of
anxiety which, on account of their high intensity, their long duration or their
repeated occurrence, are associated with substantial impairment of the person’s
mental or physical well-being (cf. e.g. Supreme Court OGH 16.06.2016, 12 Os
40/16y).
The phrase ‘accelerated loss of vital functions’ in section 49a paragraph 2 is
intended to clarify that the provision by no means creates a legal basis for eu-
thanasia, but refers to a medically indicated measure in an ongoing process of
dying. Given that the primary focus is on the patient’s well-being, the assessment
of most severe pain and suffering can only be made on a case-by-case basis;
instead of an average assessment, what matters most is the subjective percep-
tion by the patient concerned.
[…]”
3.5. Any lawful medical treatment of a patient requires the latter’s consent.
According to section 252 paragraph 1 of the Civil Code (ABGB), consent to medi-
cal treatment can (only) be given by a person of age, provided he/she is capable
of taking a decision. In the case of treatment performed without the patient’s
consent or without sufficient information and leading to disadvantageous conse-
quences, the physician, according to the jurisprudence of the Supreme Court, is
liable, even in the absence of malpractice, if the patient otherwise had not
consented to the treatment, (cf. Supreme Court OGH 07.02.1989, 1 Ob 713/88;
25.01.1990, 7 Ob 727/89; 18.12.2019, 5 Ob 179/19p).
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If the physician regards a person of age as incapable of taking a decision, he/she
has to demonstrably make every effort to consult relatives, other persons close
to the patient, persons of trust and experts experienced in dealing with people in
such difficult situations, who can support the person of age in regaining his/her
decision-making capacity (section 252 paragraph 2 first sentence ABGB). An
exemption from this obligation is granted (only) if the resultant delay would be
associated with a danger to the patient’s life, the risk of a severe health hazard
or severe pain (section 252 paragraph 4 ABGB).
Furthermore, medical treatment of a person incapable of deciding requires the
consent of his/her representative (section 253 paragraph 1 ABGB). If a person
incapable of deciding indicates to his/her attorney on health care questions or
adult guardian or physician that he/she refuses medical treatment or its continu-
ation, consent to treatment by the attorney on health care questions or adult
guardian is subject to approval by the court (section 254 paragraph 1 ABGB). If
the attorney on health care questions or adult guardian does not consent to the
treatment or the continuation of treatment of a person incapable of deciding
and thus does not act in accordance with the will of the person represented, the
court can overrule the representative by giving its consent or appoint another
representative (section 254 paragraph 2 ABGB).
As stated above, an exemption from the aforementioned provisions is granted in
the event of danger to the patient’s life, the risk of a severe health hazard or
severe pain (section 252 paragraph 4 ABGB).
3.6. Section 110 of the Criminal Code (StGB) refers to the criminal offence of
“unauthorized curative treatment”. The patient’s consent, which precludes the
objective offence covered by section 110 paragraph 1 of the Criminal Code
(StGB), is effective only if given by the person authorized to do so and capable of
consent. Consent must have been given seriously and in the absence of vitiated
consent, which is conditional, in particular, on the necessary medical information
on the curative treatment (cf. Soyer/Schumann, § 110 StGB, in: Höpfel/Ratz [ed.],
Wiener Kommentar zum StGB2, 158. Lfg. 2016, point 15 et seq.).
3.7. The Living Will Act (Patientenverfügungs-Gesetz – PatVG), Federal Law
Gazette BGBl. I 55/2006, as amended by Federal Law Gazette BGBl. I 12/2019,
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regulates the requirements for and the effectiveness of an expression of will by
which a patient refuses medical treatment and which is to become effective if
the patient is unable to decide at the time of treatment (“living will”).
In a so-called legally binding living will, the medical treatments subject to refusal
must be described in concrete terms or clearly inferable from the overall context
of the directive. Furthermore, it must be inferable from the living will that the
patient correctly assesses the consequences of the living will (section 4 PatVG).
The establishment of a so-called binding living will must be preceded by infor-
mation within the meaning of section 5 PatVG; section 6 PatVG stipulates the
formal requirements for the establishment of a living will. A so-called legally
binding living loses its binding nature eight years after its establishment, unless
the patient has set a shorter deadline. It can be renewed after the necessary
information of the patient, whereby the deadline is extended by another eight
years or a shorter period determined by the patient.
Moreover, the Living Will Act determines the significance of so-called other living
wills (cf. sections 8 et seq. PatVG).
4. The (admissible) subject matter of these review proceedings exclusively
concerns the constitutionality of the (admissibly challenged) section 78 of the
Criminal Code (StGB), which prohibits the inducement to suicide and assistance
to suicide as punishable offences. However, in these review proceedings the
Constitutional Court is not called upon to pronounce on the constitutionality of
the (inadmissibly challenged) prohibition of killing a person on their serious and
emphatic request (section 77 StGB).
5. The democratic state under the rule of law, as constituted by the Austrian
Constitution, is premised on the principle of freedom and equality of all people.
This is laid down, inter alia, in Article 63 paragraph 1 of the Treaty of Saint-
Germain, which (since the adoption of the Constitution on 1 October 1920) ranks
as constitutional law pursuant to Article 149 of the Constitution (B-VG) and reads
as follows: The State “undertakes to assure full and complete protection of life
and liberty to all inhabitants of Austria without distinction of birth, nationality,
language, race or religion”.
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This is expressed in concrete terms in several guarantees of fundamental rights,
in particular the right to private life pursuant to Article 8 of the ECHR and the
right to life pursuant to Article 2 of the ECHR as well as the principle of equality
pursuant to Article 2 of the Basic State Law (StGG) and Article 7 paragraph 1 of
the Constitution (B-VG), from which the constitutionally guaranteed right to free
self-determination is derived. This right to free self-determination comprises the
right to order one’s life as well as the right to die in dignity.
5.1. Pursuant to Article 8 of the ECHR, everyone has the right to respect of their
private life. Any interference with the exercise of this right is permitted only if
such interference is provided for by law and necessary in a democratic society in
the interests of national security, public safety, the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health and
morals or for the protection of the rights and freedoms of others.
According to the case law of the European Court of Human Rights (ECtHR 29 April
2002, case of Pretty, application 2346/02, ÖJZ 2003, 311 [point 61 et seq.]),
denying a person willing to commit suicide the wish to end a life felt to be pro-
foundly undignified and distressing with the assistance of a third party consti-
tutes an interference with the right to respect for private life pursuant to Article
8 of the ECHR. Without in any way negating the sanctity of life protected under
the Convention, the European Court of Human Rights considered that, in a time
of growing medical sophistication combined with longer life expectancies, many
people are concerned that they should not be forced to linger on in old age or in
states of advanced physical or mental decrepitude which conflict with strongly
held ideas of self and personal identity (ECtHR, case of Pretty, points 65 and 67;
cf. also ECtHR 19 July 2012, case of Koch, application 497/09, EuGRZ 2012, 616
[point 51]).
In light of this judgment in the Pretty case, the European Court of Human Rights
held in its judgment in the case of Haas (ECtHR 20 January 2011, application
31.322/07, NJW 2011, 3773 [point 50 et seq.]) that an individual’s right to decide
in which way and at what time to end his/her life, provided that the individual is
in a position to freely decide and act accordingly, is one of the aspects of the
right to respect for private life within the meaning of Article 8 of the ECHR (cf.
ECtHR, case of Haas, point 51; case of Koch, point 52). In the opinion of the
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European Court of Human Rights, this right must be guaranteed in a manner that
is not merely theoretical or illusory (ECtHR, case of Haas, point 60; cf. also ECtHR
13 May 1980, case of Artico, application 6694/74, EuGRZ 1980, 662 [point 33]).
At the same time, in the case of Haas the European Court of Human Rights
recalled that in assessing a potential violation of Article 8 of the ECHR it is neces-
sary also to consider Article 2 of the ECHR, which protects the right to life.
According to the latter, the authorities are obliged to protect vulnerable persons
from acts by which they endanger their own life and to prevent an individual
from putting an end to his/her life if the decision to do so has not been taken
freely and in full knowledge of the circumstances (ECtHR case of Haas, point 54;
cf. also ECtHR 5 June 2015 [GK], case of Lambert, application 46.043/14,
NJW 2015, 2715 [point 136 et seq.]).
As there are considerable divergences in the law of the States Party to the
Convention and, consequently, there is no consensus on this issue, the European
Court of Human Rights ultimately recognizes that the States have a broad margin
of appreciation in respect of the right of the individual to decide freely on when
and how to end their life (ECtHR, case of Haas, point 55; case of Koch, point 70;
case of Lambert, point 144 et seq.). If a country adopts a liberal approach in this
matter, the European Court of Human Rights holds the opinion that appropriate
implementing measures and adequate precautions to prevent abuse must be
taken. In particular, the right to life protected by Article 2 of the ECHR obliges the
States to establish a procedure capable of ensuring that an individual’s decision
to end his/her life does indeed correspond to the free will of the individual
concerned (ECtHR, case of Haas, point 56 et seq.)
5.2. Article 2 paragraph 1 of the ECHR, which protects every human being’s right
to life, obliges the State to protect the right to life not only against danger ema-
nating from state actors, but also from dangers emanating from non-state actors.
According to the case law of the European Court of Human Rights, this includes,
under certain qualified circumstances, measures to protect persons at risk of
committing suicide (e.g. ECtHR 22 November 2016, case of Hiller, application
1967/14, NLMR 2016, 503). However, it is not part of the State’s task and duty of
protection to protect an individual against freely desired suicide (cf. Ber-
ka/Binder/Kneihs, Die Grundrechte2, 2019, 286).
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5.3. The right of the individual to free self-determination as regards his/her way
of life and the decision on (the point in time for) a dignified death emanates from
the principle of equality pursuant to Article 2 of the Basic State Law (StGG) and
Article 7 paragraph 1 of the Constitution (B-VG): Given its elementary message
that all people are equal before the law, the principle of equality postulates that
every human being, as an individual, is different from all other human beings,
from which the specific personality and individuality of a person can be inferred
(cf. Holoubek, Art 7/1 S 1, 2 B-VG, in: Korinek/Holoubek et al [ed.], Bundesverfas-
sungsrecht, 14. Lfg. 2018, point 62 et seq.). The system of fundamental rights
guarantees the freedom of the individual, who is personally and individually
responsible to himself/herself.
6. On the one hand, free self-determination encompasses the individual’s deci-
sion how to conduct his/her life. On the other hand, free self-determination also
includes the decision if and for what reasons an individual wants to end his/her
life in dignity. All of that depends on the individual’s convictions and attitudes
and is a matter of autonomous decision-making.
The right to free self-determination, as derived from the Constitution, covers not
only the decision by and the action of the person willing to commit suicide, but
also that person’s right to avail himself/herself of the assistance of a third party
(willing to provide such assistance). The person willing to commit suicide may, in
various ways, be dependent on another person’s assistance in order to actually
implement his/her self-determined decision to end his/her life by the means
chosen. Hence, the person willing to commit suicide has the right to self-
determined dying in dignity; to this end, he/she must have the possibility of
using the assistance of a willing third party.
7. The Constitutional Court already dealt with the provision of section 78 of the
Criminal Code (StGB) in its decision VfSlg. 20.057/2016. At that time, the issue
was brought before the Court on the occasion of the planned establishment of
an association for self-determined dying (“Letzte Hilfe – Verein für selbstbe-
stimmtes Sterben“), which was prohibited by the competent public authority on
account of it being in conflict with section 78 of the Criminal Code (StGB). In
complaint proceedings pursuant to Article 144 of the Constitution (B-VG) and,
hence, against the background of a specific case (rather than in judicial review
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proceedings), the Constitutional Court assessed section 78 of the Criminal Code
(StGB) to be in conformity with the Constitution. This means that the Court did
not rule on the constitutional concerns regarding section 78 of the Criminal Code
(StGB) to be judged in the present case in a manner that would have been
binding upon the Constitutional Court.
Any position taken in the decision VfSlg. 20.057/2016 other than that expressed
in this decision is not maintained.
The two cases covered by section 78 of the Criminal Code (hereafter referred to
as StGB) both qualify participation in suicide as a punishable offence, although
(attempted) suicide as such is not punishable. Moreover, the first and second
cases covered by section 78 StGB are both conditional on the person willing to
commit suicide to do so himself/herself.
Nevertheless, in the opinion of the Constitutional Court a distinction has to be
made between the two cases covered by section 78 StGB when assessing them in
terms of fundamental rights.
The following statements exclusively refer to the second case covered by section
78 StGB (“or assists them in doing so”), but not to the first case of section 78
StGB (“Anyone who induces another person to kill themselves”). The first case
covered by section 78 StGB will be dealt with in paragraphs 18 and 19.
In the opinion of the Constitutional Court, the prohibition of suicide with the
assistance of a third party can constitute a particularly intensive form of interfer-
ence with the right of the individual. As the second case covered by section 78
StGB prohibits assisted suicide without exception, this provision may, under
certain circumstances, induce the individual to end his/her life in a degrading
manner if he/she freely decides that a self-determined life in personal integrity
and identity and, hence, human dignity is no longer guaranteed in the current
situation. This position is not changed by section 49a paragraph 2 of the Physi-
cians Act 1998 (ÄrzteG 1988), which (only) applies to the dying within the
framework of measures of palliative medicine, i.e. at a point in time when the
process of dying essentially is within the exclusive sphere of responsibility of
physicians.
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If the legal system allows the person concerned to end his/her life in dignity and
on the basis of free self-determination at the time chosen by him/her, this may
prolong the person’s life, as he/she does not feel forced to end his/her life in a
degrading manner. Hence, the life of the person concerned may be prolonged, as
he/she has the possibility of ending his/her life at a later point in time with a
third party’s assistance. By prohibiting assisted suicide without exception, the
second case covered by section 78 StGB deprives the individual of the right to
decide when to end his/her life in dignity.
8. In this context, the Constitutional Court does not share the opinion of the
Federal Government, according to which the legislator is free to act within a wide
margin of appreciation in regulating assisted dying.
As the provision of section 78 (second case) StGB concerns the existential deci-
sion on how to live and die and, thus, essentially affects the individual’s right to
self-determination, the margin of appreciation by the legislator is not wide at all.
9. When assessing the second case of section 78 StGB in terms of constitutional
law, the point at issue is not to weigh the protection of life against the right to
self-determination of the individual willing to commit suicide. If it is beyond
doubt that the decision to commit suicide is based on free self-determination, it
must be respected by the legislator. In the opinion of the Constitutional Court, it
is a priori wrong to infer a duty to live from the right to the protection of life
enshrined in Article 2 of the ECHR and thus make the subject of this fundamental
right an addressee of the State’s duty of protection.
10. Given that suicide is irreversible, the corresponding free self-determination
of the person determined to end his/her life must be based on a decision of
lasting effect (rather than a transient mood). Both the protection of life and the
right to self-determination oblige the legislator to allow assistance to suicide by a
third party, provided the decision is based on free self-determination, i.e. on an
informed act of will. The legislator also has to take into account that the assisting
third party has sufficient grounds to infer that the person willing to commit
suicide has indeed taken the decision to end his/her life on the basis of free self-
determination.
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11. In this context, the Constitutional Court wishes to refer to the fact that the
legislator recognizes and regulates in detail the individual’s right to self–
determination in many respects, including in cases relating to the life and health
of the person concerned:
11.1. Every patient has to consent to medical treatment and is free to withdraw
consent at any time (cf. section 252 et seq. ABGB). An exemption from the
requirement of consent is allowed (only) if the delay caused by obtaining the
patient’s consent would result in danger to his/her life, a risk of serious health
hazards, or severe pain (section 252 paragraph 4 ABGB).
11.2. The right to self-determination is also protected by the criminal offence of
“unauthorized curative treatment” regulated in section 110 StGB. With this
provision, the legislator underlines the importance of information of the patient
prior to medical treatment, including curative treatment, as well as the patient’s
ultimate power of decision-making (cf. Soyer/Schumann, loc.cit., point 1). The
patient’s consent, which precludes the objective criminal offence of section 110
paragraph 1 StGB, is effective only if given by the person authorized and able to
consent. Consent must have been given seriously and in the absence of vitiated
will; this is conditional, in particular, on the necessary information about the
curative treatment (cf. Soyer/Schumann, loc.cit., point 15 et seq.)
11.3. The patient’s right to self-determination also provides the basis for the
Living Will Act (cf. e.g. explanatory notes on government bill 1299 BlgNR 22nd
legislature, 2 and 4 et seq.). The living will is intended to guarantee the patient’s
right to self-determination also in the event of the patient being no longer able
to express the refusal of medical treatment in a binding manner at the relevant
point in time. In a living will, the refusal of medical treatment can therefore be
laid down with binding effect (section 1 paragraph 2 of the Living Will Act –
PatVG).
In order to ensure that the living will corresponds to the patient’s informed will –
expressed through free self-determination – strict formal requirements have to
be met (cf. sections 4 et seq. of the Living Will Act – PatVG).
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11.4. These provisions all show that the legislator attributes great importance to
the individual’s right to self-determination in the field of medical treatment. The
living will further guarantees that the treating physician is obliged to act in
accordance with the patient’s will in respect of the refusal of any or all medical
treatments, thus respecting the patient’s right to self-determination, if the
patient is no longer able to decide at the relevant point in time. The provisions
governing the living will clearly show that the legislator recognizes the individu-
al’s right to self-determination also in connection with end-of-life decisions.
11.5. The Constitutional Court finds that from a fundamental rights perspective it
makes no difference if a patient, within the framework of his/her sovereignty
over treatment or exercising his/her right to self-determination within the
framework of a living will, refuses life-prolonging or life-maintaining medical
measures, or if a person willing to commit suicide wants to end his/her life with
another person’s assistance by exercising his/her right to self-determination in
order to die in dignity, as desired by the person willing to commit suicide. In any
case, the decisive aspect is that the decision is taken on the basis of free self-
determination.
12. Furthermore, by adopting section 49a (inserted through the amendment in
Federal Law Gazette BGBl. I 20/2019) in conjunction with section 2 paragraph 2
subparagraph 6a of the Physicians Act 1998 (ÄrzteG 1998), the legislator created
a provision according to which active (indirect) euthanasia is explicitly declared
permissible within certain narrow limits: According to section 49a paragraph 2
leg.cit., “measures taken within the framework of indications of palliative
medicine, in particular for dying patients, the benefit of which in relieving the
most severe pain and suffering outweighs the risk of an accelerated loss of vital
functions, are permitted”. With this form of euthanasia, the physician accepts
the patient’s accelerated death effected through pain-relieving measures as an
unavoidable side effect of the physician’s action.
In Austria it is widely recognized that indirect active euthanasia – notwithstand-
ing section 49a paragraph 2 of the Physicians Act 1998 (ÄrzteG 1988) – does not
qualify as homicide; according to the doctrine prevailing in Austria, indirect
active euthanasia, following the established concept of homicides, qualifies as
socially adequate conduct. This is justified, inter alia, by the fact that the stated
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or presumed interest of the dying in pain relief clearly outweighs the interest of
being kept alive “at any cost”.
The legal system furthermore permits euthanasia by omission (so-called passive
euthanasia): The performance of any medical measure affecting the patient’s
physical integrity or freedom requires the patient’s (explicit or presumable)
consent (cf. e.g. sections 252 et seq. ABGB and section 110 StGB). The patient
can withdraw consent at any time. The reason why a patient capable of consent-
ing refuses to consent to a medical treatment, e.g. a life-saving or life-prolonging
measure of treatment, is irrelevant.
In this context, the Living Will Act contains special provisions aimed at a priori
precluding any doubt about the patient’s presumable will. Accordingly, a patient
can refuse certain medical treatments, including, in particular, life-saving and
life-prolonging measures. A living will – which remains in effect for up to eight
years (cf. section 7 paragraph 1 PatVG) – is intended to take effect only if the
patient is not capable of deciding at the time of treatment.
So-called passive euthanasia is a case in which the principle of patient sovereign-
ty over treatment applies; in a way, passive euthanasia is outranked by the
patient’s sovereignty over treatment. The treating physician must comply with
the informed decision of the patient if and when to consent to or refuse a medi-
cal treatment measure in any case, regardless of whether this decision is expedi-
ent from a medical point of view or not.
The Constitutional Court holds that the prohibition of any assistance to suicide,
as laid down in the second case of section 78 StGB, is in contradiction, on the one
hand, to the patient’s sovereignty over treatment based on (constitutional) law
and, on the other hand, to section 49a paragraph 2 of the Physicians Act 1998
(ÄrzteG 1998) – at least if the patient has made a living will. If, on the one hand,
the patient (by refusing or withdrawing consent) is free to decide if his/her life is
to be saved or prolonged through medical treatment and, on the other hand, the
premature death of a patient within the framework of medical treatment is
accepted under the requirements laid down in section 49a paragraph 2 ÄrzteG
1998, denying the patient assistance to suicide by another person in whatever
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form and negating the right to self-determination without any exception is not
justified.
13. The Constitutional Court does not fail to recognize that free self-
determination is also influenced by a variety of social and economic circum-
stances. The legislator therefore (also) has to provide for measures (safeguards)
to prevent abuse, ensuring that the person concerned does not decide to end
his/her life under the influence of third parties.
14. In connection with the right to self-determination, as it relates to suicide, it
must not be overlooked that, given the reality of social circumstances, people’s
living conditions leading to such a decision may vary greatly.
In such a decision, circumstances not within the exclusive sphere of control and
influence of the person willing to commit suicide may play a crucial role, such as
the family situation, the availability of income and assets, conditions of care, the
degree of helplessness, the limited range of activity, the real conditions of the
expected process of dying and support provided, as well as other circumstances
and consequences to be expected.
Legislative and other government-initiated measures are therefore necessary to
counteract differences in the living conditions of the persons concerned and to
ensure access to palliative care for all (see the report by the Parliamentary Study
Committee on the topic “Dignity at the end of life”, 491 BlgNR 25th legislature).
Regardless thereof, the freedom of the individual to decide on their life in condi-
tions of integrity and personal identity and, consequently, decide to end life with
third-party assistance, must not be denied as such.
15. Under certain circumstances, it may be difficult to determine if a person’s
decision to end his/her life with a third party’s assistance and the final act of
suicide are based on free self-determination. However, this must not be taken as
justification for an absolute prohibition of assistance to suicide in whatever form
pursuant to the second case of section 78 StGB and for denying, under all cir-
cumstances, an individual capable of free self-determination and of assuming
responsibility for his/her own acts the right to end his/her life with a third party’s
assistance.
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As section 78 second case StGB absolutely prohibits any form of assistance to
suicide, which makes it impossible for the person willing to commit suicide to die
in dignity, as desired, this provision violates the right to self-determination
derivable from the Constitution.
16. The fact that the legislator, through sentencing rules and the extraordinary
right of mitigation in sentencing pursuant to section 41 StGB, provides for in-
struments that allow differentiation in sentencing commensurate with the
criminal offence in the presence of (substantial) mitigating grounds, does not
change the unconstitutionality of section 78 second case StGB. Case-by-case
sentencing does not eliminate the objective allegation of wrongdoing attributed
by section 78 second case StGB without differentiation to all conceivable forms
of assistance to suicide.
17. Given this result, it is no longer necessary to elaborate on the other concerns
expressed in the application regarding the constitutionality of section 78 second
case StGB and the question of applicability of the Fundamental Rights Charter.
18. The concerns expressed by the applicants on grounds of fundamental rights
do not apply to the first case of section 78 StGB (“Anyone who induces another
person to kill themselves”):
As the above said clearly shows, the decision by a person willing to commit
suicide with a third party’s assistance can enjoy protection as a fundamental
right only if this decision is taken freely and without influence by others. Given
that, a priori, this requirement is not met in the first case covered by section 78
StGB, this provision violates neither the principle of equality pursuant to Article 2
of the Basic State Law (StGG) and Article 7 paragraph 1 of the Constitution (B-
VG), nor the right to respect of private life pursuant to Article 8 of the ECHR or
any other constitutionally guaranteed right.
19. As regards the applicants’ concerns raised over the vagueness (pursuant to
Article 18 of the Constitution) of the (likewise) challenged provision of section 78
first case StGB (“Anyone who induces another person to kill themselves”), the
application proves to be unfounded in that:
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The applicants reprimand the penal provision of section 78 first case StGB for
violating Article 18 of the Constitution (B-VG) by arguing that the wording of the
penal provision does not clearly indicate when the definition of the act of “in-
ducement” is met.
The principle of legal certainty enshrined in Article 18 paragraph 1 of the Consti-
tution (B-VG) – and in Article 7 of the ECHR – generally demands that the con-
duct of public authorities or courts be pre-determined by the content of laws.
However, in view of the subject matter of the respective legal norm, it may be
necessary for the legislator, in describing and wording the legal criteria, to use
indeterminate legal terms and, given the lack of clarity necessarily resulting
therefrom, to abstain from exactly determining the action of the public authority
(cf. VfSlg. 20.279/2018, 13.785/1994 with further references; on Article 7 ECHR
cf. ECtHR 8 January 2007, case of Witt, application 18.397/03, NJW 2008, 2322).
As there may be various forms of actively exercising psychological influence
which (deliberately) trigger another person’s decision to commit suicide, which
are hard to predict in advance, the legislator deliberately refrained from a final
and definitive wording. Hence, the act of “inducing” to suicide pursuant to
section 78 first case StGB (necessarily) remains open to a certain extent. Howev-
er, in particular with a view to the relevant case-law on section 78 first case StGB,
the penal provision is accessible to interpretation: According to the Supreme
Court, the term “inducement” in section 78 StGB (first case) is to be interpreted
as incitement (Supreme Court OGH 27.10.1998, 11 Os 82/98 et al.; cf. also
explanatory notes on government bill 30 BlgNR 13th legislature, 196 et seq.). The
concerns raised by the applicants against section 78 first case StGB from the
angle of Article 18 of the Constitution (B-VG) are therefore unfounded.
20. The Constitutional Court has to limit the scope of the provisions to be re-
viewed and, if need arises, repealed in such way that, on the one hand, no
provisions other than those having triggered the current case are eliminated
from the body of law and that, on the other hand, the remaining part is not
changed in its meaning. As it is never possible to reach both goals completely
and at the same time, it has to be weighed in each individual case if and to what
extent one or the other goal is to be given priority (VfSlg. 7376/1974,
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16.929/2003, 16.989/2003, 17.057/2003, 18.227/2007, 19.166/2010,
19.698/2012).
Thus, it is sufficient to repeal the phrase “or assists them in doing so” in section
78 StGB in order to establish conformity of the law with the Constitution. Neither
are the first and second cases of section 78 StGB inseparably connected, which
would require that section 78 StGB be repealed in its entirety.
21. In conclusion, the Constitutional Court states that the considerations
resulting in the repeal of section 78 second case StGB cannot automatically be
transferred to the question of the constitutionality of the inadmissibly challenged
section 77 StGB, as this provision differs from section 78 second case StGB in
essential respects.
V. Result
1. The phrase “or assists them in doing so” in section 78 of the Federal Law on
Acts subject to judicial sanctions of 23 January 1974 (Bundesgesetz vom 23.
Jänner 1974 über die mit gerichtlicher Strafe bedrohten Handlungen [Strafge-
setzbuch – StGB]), Federal Law Gazette BGBl. 60/1974, is to be repealed as
unconstitutional.
The setting of a deadline as of which the repealed phrase of the legal provision is
no longer effective is based on Article 140 paragraph 5, third and fourth sen-
tence, of the Constitution (B-VG).
The sentence that earlier legal provisions shall not re-enter into force is based on
Article 140 paragraph 6, first sentence, of the Constitution (B-VG).
The obligation of the Federal Chancellor to publish the repeal and the other
pronouncements associated with it derives from Article 140 paragraph 5, first
sentence, of the Constitution (B-VG) and section 64 paragraph 2 of the Constitu-
tional Court Act (VfGG) in conjunction with section 3 subparagraph 3 of the
Federal Act on the Federal Law Gazette (Bundesgesetzblattgesetz – BGBlG).
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2. The application, as far as it refers to section 77 of the Criminal Code (StGB), is
rejected.
3. The application is otherwise dismissed.
4. The decision on the award of expenses is based on section 65a of the Constitu-
tional Court Act (VfGG). Given that the applicants only succeeded with one part
of their application, they are to be awarded only half of the flat-rate court fee (cf.
e.g. Constitutional Court 13.12.2019, G 211/2019 et al.). The expenses awarded
include a joinder-of-parties surcharge of EUR 218.00, value added tax of EUR
261.60 and the reimbursement of submission fees in the amount of EUR 240.00.
Vienna, 11 December 2020
The President:
GRABENWARTER
Recording clerk:
Josefa BREITENLECHNER