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"§ 217 StGB does not help the protection of life, but self-proclaimed life protectors!"

Statement by Michael Schmidt-Salomon before the Federal Constitutional Court


Federal Constitutional Court; Photo: © Evelin Frerk

Philosopher and spokesman for the board of the Giordano Bruno Stiftung, Michael Schmidt-Salomon, demanded the deletion of the paragraph without substitution in the oral hearing on the constitutional complaints against § 217 of the German Criminal Code. We document his statement translated from German.

Mr. President,
Judges of the Federal Constitutional Court!

The dignity of the individual is determined by the fact that the individual determines their dignity - not the state or the church. The rule of law must therefore ensure that the plurality of citizens' dignity definitions is taken into account in legislation. Thus, the State must enable a strict Catholic to follow the convictions of Pope John Paul II, who said that life is a "gift of God" which man cannot have at his disposal. Likewise, however, the legislator must also allow a follower of Friedrich Nietzsche's philosophy to be "free for death and free in death".

As early as 1965, the Federal Constitutional Court noted that only a state that adheres to the principle of worldview neutrality can be a "home" for all citizens. Precisely this, however, was ignored when § 217 StGB (German Criminal Code) was passed. For this paragraph privileges the moral ideas of a religious minority and discriminates against all those who do not share these ideas. While 80 percent of the citizens pleaded for more self-determination at the end of life, their parliamentary representatives decided to massively curtail this right for self-determination by punishing qualified suicide assistants.

The fact that § 217 is not ideologically neutral can already be inferred from its historical origin. The draft for the law originated from a church-related foundation established by the Order of Malta. Leading protagonists of the law such as the Minister of Health at the time, Hermann Gröhe (CDU), or the SPD member of parliament, Kerstin Griese, justified their position not least through their Christian faith.

A "legal obligation to live"?

That many parliamentarians were not aware of the ideological imbalance of § 217 was probably also due to the fact that the bill did not directly attack the right to suicide, but merely indirectly. De jure, § 217 does not criminalize suicide as such, but de facto the prohibition of medical suicide assistance amounts to a prohibition of suicide in violation of human rights and thus to a "legal obligation to live", which the state may not presume.

One can clarify this point by transferring the provisions of § 217 to the provisions on "abortion": Imagine a new version of § 218 StGB which does not per se deny pregnant women the possibility of abortion, but forces them to either carry out the abortion on their own or to resort to the help of persons who do not practice commercially in this field, i.e. not professionally, because they are not doctors! Of course, such a regulation (courtesy of the women's movement!) could never be enforced. However, severely suffering patients do not have a comparable lobby, which is why they are now forced either to renounce their right to self-determination or to expose themselves to the danger of ending their lives without professional medical help in an undignified, painful way.

It would have been more honest to describe the "Law on the Criminality of the Commercial Promotion of Suicide" as "Law on the Criminality of the Competent Support of Severely Suffering People". This is exactly at stake: normally, in life-and-death situations, we require the presence of experts who know exactly what they are doing and who disclose the criteria of their decisions in a comprehensible way. Only in the case of suicide assistance shall laypersons be allowed to do what experts are forbidden to do, without specialist knowledge and without transparency criteria.

§ 217 does not help to protect life

The law thus exposes the most severely suffering persons to a tremendous risk – not only because laypeople generally do not know what they are doing, but also because many affected persons can now only turn to their relatives, who – unlike doctors – could actually have an economic interest in the premature death of their family members. § 217 StGB therefore does not serve the "protection of life", as is so often claimed, instead it rather serves self-proclaimed "life protectors" who place outdated religious norms above the right of self-determination of the individual.

In this context, one important argument to which my colleague in the foundation, criminal lawyer Reinhard Merkel, recently referred should be noted: § 217 states a so-called "abstract dangerous offence" which assumes that professional suicide assistance (in contrast to amateur assistance) is accompanied by an increased risk of "unfree" suicide. This assertion, however, is taken from empirical nothingness. While the legislature may define and prohibit "abstract dangers", it may not invent them. I therefore agree with Merkel's assessment that § 217 StGB is also unconstitutional because "abstract facts of endangerment", which are not based on any real danger, violate the principle of guilt (Article 1.1, Article 20.3 of the German Basic Law).

As a matter of fact, there is no "business with death" worth mentioning, but there is a "multi-billion euro business with the prolongation of suffering". It is also a fact that all arguments put forward in defence of the law have been empirically refuted by the experiences of countries in which professional suicide assistance takes place. More still: We can provide evidence that the availability of suicide accompaniments has accelerated palliative medicine and led to a significant reduction in desperation suicides and attempts. (Incidentally, the fact that many psychological reports do not distinguish between rational balance suicides and irrational desperation suicides can only be interpreted as an expression of – perhaps unconscious – ideological bias.)

Conclusion: The deletion of § 217 StGB without substitution

To conclude, the rule of law may only infringe civil liberties if it can present a rational, evidence-based, and worldview neutral justification. The legislator has not complied with this obligation to substantiate its decision. Without comprehensive justification, § 217 StGB affects several fundamental rights in their "essence", namely Articles 1, 2, 3, 4, 9, and 12 of the German Basic Law. Moreover, it is contrary to the European Convention on Human Rights. In this context, I refer only to the ECHR ruling in the "Haas vs. Switzerland" case, which speaks of a "positive obligation on the part of the state" to "take the necessary measures to permit a dignified suicide". § 217 aims at the exact opposite, it makes a "dignified suicide" impossible.

The German Bundestag should never have passed the law, since the conscience principle of the constitution, to which many parliamentarians have referred, is by no means aimed at the private or even religious conscience of members of parliament, but rather at the professional consciences of professional politicians who should make their decisions "as representatives of the entire people" to the "best of their knowledge and conscience". Therefore, in this case there is only one constitutional solution to the problem, namely the deletion of § 217 StGB without substitution! In our estimation, a constitutional interpretation of the paragraph is not possible, as we have demonstrated in our written statements.

Ladies and gentlemen, I would like to conclude by saying that I am presenting all this not least on behalf of the many desperate people who have contacted me over the last four years. These were by no means just people who were close to death and were looking for a dignified way out of their hopeless situation, but above all people with severe neurological diseases who are afraid of having to lead a life – buried in their own bodies – that they do not want to lead. Please consider in your decision the real need of the people who are dependent on "last aid"! These desperate men and women have the right to determine their own lives and deaths – a right which is scandalously taken away from them by § 217 StGB! Thank you for your attention.