In its decision today, the Federal Constitutional Court has annulled section 217 of the German Penal Code. Leading politicians such as Angela Merkel and Jens Spahn must now be accused of having voted in 2015 for a law that is not grounded in the German constitution. A report from Karlsruhe by Michael Schmidt-Salomon.
After the oral hearing in April 2019, which was considered a "stellar moment for the Federal Constitutional Court", expectations were high - and they were not disappointed: The pronouncement of judgement on the constitutional complaints against section 217 of the German Penal Code (StGB), which Andreas Voßkuhle opened at 10.00 a.m. this morning, became a lesson in fundamental rights: The judges informed the attending politicians that the individual's right to self-determination at the end of life must not be put up for debate. The "law on the criminalization of business-like promotion of suicide" passed in 2015 was declared unconstitutional due to its "anti-autonomousness" and thus null and void.
The constitutional judges emphasized that the German Basic Law is derived from the autonomously deciding person. This person has the right to decide on their own life and death. Section 217 of the German Penal Code had de facto prevented this, as people who were willing to die could no longer find competent helpers after the law had been passed. Although the state has the right to prevent suicide, it may not interfere with the personal rights of the individual. Nor may the state materially define the conditions under which a wish to die is legitimate or illegitimate. Only the self-responsible individual may decide on this. The state must not make restrictive criteria, such as the presence of an "incurable disease", a prerequisite.
In their reasons for the judgement, the judges also called for a new version of the Medical Professional Codes and the Narcotics Act, which in their current versions are "constitutionally questionable". With today's ruling, the legal status quo of 2015 has been restored - and more than that: never before has a German court acknowledged the individual's right to self-determination over his or her own life and death with such clarity. A historic judgement with which the departing president of the Federal Constitutional Court, Andreas Voßkuhle, has set a monument to himself and his colleagues on the court bench.
For further information, read the statement presented by Michael Schmidt-Salomon as an "expert third party" at the oral hearing on the constitutional complaints against section 217 StGB in Karlsruhe: "§ 217 StGB does not help the protection of life, but self-proclaimed life protectors!"
Addendum of 27/02/2020:
- gbs advisory board member Eric Hilgendorf (professor of Criminal Law in Würzburg and co-initiator of the resolution of 150 criminal law teachers against the Parliament's efforts towards prohibition) saw the verdict as a "coup de liberation". With its clear commitment to personal autonomy, the Federal Constitutional Court had written "legal history".
- Rolf Schwanitz (former Minister of State in the Federal Chancellery), member of the gbs advisory board, evaluated the judgement from Karlsruhe as a "wake-up call to the Bundestag", which ought to trigger a "hard and self-critical re-examination" among the parliamentarians, since 360 members of parliament had after all "disregarded and broken the right of self-determination, the heart of our basic and human rights" with the unconstitutional Brand-Griese-Vogler-Terpe motion.
- By the way: Among the parliamentarians who, despite a previous, extensive clarification, had voted for the unconstitutional "Euthanasia Prevention Act" (a list of the parliamentarians can be found here) was also Stephan Harbarth, who is considered the most promising candidate to succeed Andreas Voßkuhle as President of the Federal Constitutional Court (!). On its Facebook page, the gbs asked the responsible persons in the Federal Council: "Do you really want to elect a man who as a politician obviously did not show the necessary commitment to the constitution as president of the Federal Constitutional Court? The next sessions of the Federal Council, during which the decision could be made, will take place on March 13 and April 3. A two-thirds majority is required to elect the president of the Federal Constitutional Court.