In September 2023, the relationship between euthanasia and criminal law came to the forefront of Hungarian public interest. While more and more countries are allowing active euthanasia, in November 2023 the European Court of Human Rights in Strasbourg will deliver a judgment in a case concerning Hungary, which will most likely rewrite the Hungarian regulatory framework.
Types of euthanasia
Euthanasia is a Greek term meaning „a good death”. In the ordinary sense, euthanasia is defined as any action aimed at painlessly shortening the life of a person who is close to death and no longer capable of leading a life worthy of human dignity, whether at the initiative of the victim (voluntary euthanasia) or not (involuntary euthanasia).
Euthanasia may be carried out by a doctor (active euthanasia = assisted dying) or by a doctor who fails to carry out the life-prolonging treatment (passive euthanasia = leaving a person to die).
Passive euthanasia in Hungarian criminal law
Voluntary passive euthanasia is allowed under Hungarian (criminal) law. The framework for this was established by the Constitutional Court in its decision 22/2003 (IV. 28.) AB.
Paragraph (1) of Article 15 of Act CLIV of 1997 on Health Care guarantees the patient the right of self-determination, in the exercise of which the patient may decide at his or her own discretion whether to receive health care or to consent to any intervention; this right therefore also includes the right to refuse care.
According to Article 20(3) of the Health Act, the right to refuse life-sustaining or life-saving treatment is available if, according to the current state of medical science, the disease is incurable even with the prescribed medical treatment, i.e. if it will lead to the patient’s death within a short period of time.
The passive euthanasia procedure
A refusal of life-prolonging treatment or intervention is valid only if a medical committee of three members, after examining the patient, unanimously declares in writing that the patient has made a decision in full knowledge of the consequences and, on the third day after the medical committee’s declaration, the patient reiterates his or her intention to refuse in front of two witnesses, and this declaration is recorded in a public or private document with full probative value.
Homicide
Thus, under the provisions of the Health Act, voluntary passive euthanasia is possible under the above legal conditions, but involuntary passive euthanasia is considered to be intentional homicide. Homicide can also be committed by omission. The relationship between manslaughter and euthanasia is illustrated by a case in my law practice in which the prosecution accused the head of the department of failing to provide appropriate care to a long-suffering, incurable elderly relative under pressure from the family. Clearly, there is no question of voluntariness in this case.
Likewise, active euthanasia is – currently in 2023 – considered homicide or assisted suicide.
Assisted suicide
Assisting in suicide is a less serious criminal offence than homicide. The difference between the two is in who the decisive motive arises, the person who commits suicide or the person who assists him.
The activities of the person who is involved in the suicide may be
- inducing another to commit suicide,
- assisting the person to commit suicide.
Inducing suicide is an act of persuasion which results in a determination to commit suicide. It is not necessary that this persuasive conduct be the sole or exclusive reason for committing suicide. But the persuader’s conduct must be a decisive motive in order to establish the offence.
Assisting suicide typically involves obtaining the means to commit suicide (e.g. poisons, firearms), assisting in the commission of the act, instructing in the use of the means or materials, providing premises for this purpose, giving advice and generally reinforcing the suicidal intentions already established by any means.
Offence committed abroad by a Hungarian national
In connection with the above, it is probably obvious to all readers that euthanasia is legal in many foreign countries, so that legal obstacles can be overcome with adequate financial resources.
However, the issue is not so simple.
Indeed, because of the personal and territorial scope of Hungarian criminal law, a Hungarian citizen (i.e. the family of the person concerned, for example) could not assist him or her in euthanasia even abroad, as this would constitute a criminal offence for which they could be held liable in Hungary. This is because a Hungarian citizen is obliged to comply with the rules laid down in the Hungarian Criminal Code abroad.
Pending the decision of the European Court of Human Rights on the issue of euthanasia
As I pointed out earlier, the Hungarian legal framework was established by the Constitutional Court’s decision 22/2003 (28.4.2003) AB, which allowed passive voluntary euthanasia under strict rules.
We are currently awaiting the judgment of the European Court of Human Rights, which is expected to be handed down in an emergency procedure in Karsai v. Hungary (no. 32312/23) on 28 November 2023.