The darker shade of life (Suicide, Assisted Suicide, Euthanasia)
4 March 2016 | Criminal Law
The recent spate of exchanges in the local media concerning euthanasia has focused our attention on an area that is not exactly all that enthralling to pick upon as a theme. This said, certain wrong ideas or misconceptions regarding the position under current Maltese law deserve to be better clarified and, if need be even rectified, before voicing one’s opinions on the matter.
It may come as a surprise to somepeople to know that suicide as such is not considered a criminal offence under Maltese law. In fact, it is nowhere mentioned in our Criminal Code (Chapter 9, Laws of Malta). This would also consequently imply that in a case of a botched-up suicide, the offence of attempted suicide does not exist either.
In other words, no action can be taken by the police against the person directly involved in the attempt.
The position is entirely different in the case of person or persons providing assistance to commit the act. Providing assistance to someone to commit suicide is considered to be a criminal offence punishable by imprisonment. The Maltese Criminal Code in its typical direct way of listing the offence, states as follows (art 213),
“Whosoever shall prevail on any person to commit suicide or shall give him any assistance, shall, if the suicide takes place, be liable, on conviction, to imprisonment for a term not exceeding twelve years.”
Incidentally, one notes that the 12-year imprisonment by way of maximum punishment is not among the highest punishments normally associated with the violent death of a person.
The above might look straightforward enough at first glance but on closer scrutiny there is much more underneath than meets the eye. A number of questions come readily to mind. For example, what if such assistance is provided by a citizen of Malta to someone outside Malta’s jurisdiction and where such an act is not deemed to be against local law?
Suicide as such is not considered a criminal offence under Maltese law and again, would it make a difference at law if the person receiving such assistance is another Maltese citizen?
Art 5 of the Criminal Code deals with the jurisdiction of Maltese courts to prosecute offences, even those committed outside Malta. Whereas the Maltese courts would have jurisdiction to prosecute individuals who commit, or assist in the commission of, willful homicide or a bodily harm against a Maltese citizen, the courts do not have jurisdiction to prosecute for assisted suicide where this is committed beyond the territory of Malta. Assisted suicide, in other words, is excluded from the court’s jurisdiction even though it is classified as an offence against the person, a family of offences which includes willful homicide and bodily harm.
The European Court of Human Rights has been kept quite busy in the last decade on the issue of assisted deaths. According to the court, the right to life could not be interpreted as conferring the diametrically opposes right, namely a right to die (Pretty v. UK, 2001).
Although assistance in suicide had been decriminalised in certain states, at least partly, the vast majority of them appeared to attach more weight to the protection of the individual’s life than to his right to end it (Haas v. Switzerland, 2011).
The Strasbourg court had also occasion to examine cases involving the withdrawal of life-sustaining treatment where it was stressed that there was no consensus among Council of Europe member states (Lambert and Others v. France, 2015).
When it comes to the sphere concerning the end of life, states must be afforded a margin of appreciation. The court was very much aware of the complex and highly delicate issues raised by such cases from a medical, legal and ethical perspective. Above all, it recalled that those intending to lodge a complaint before the European Court of Human Rights against a state must first use and exhaust the remedies provided for by the national legal system.
Stefano Filletti is a practising criminal lawyer and also the head of the Department of Criminal Law.
See: https://timesofmalta.com/article/The-darker-shade-of-life.605040