The woman was convicted of homicide on demand by the Stendal Regional Court in the first instance. (§ 216 para. 1 StGB ) was sentenced to a suspended prison sentence of one year. The former nurse had administered a fatal overdose of insulin to her seriously ill husband in 2019 after he had repeatedly expressed his wish to die and at his request, as he was unable to do so due to his illness.
BGH sees no criminal offense
The Federal Court of Justice in Leipzig has now acquitted the woman: The defendant’s actions, according to the ruling, “did not constitute killing on demand by her husband through active action, but rather assisted his suicide without punishment”. In view of the husband’s long-term plan and firm decision, a distinction “cannot meaningfully be made on the basis of a naturalistic distinction between active and passive action”, according to the court’s ruling. Rather, “a normative consideration” of the overall event is required. In the specific case, an evaluative approach would lead to the conclusion that it was not the defendant but her husband who controlled the events leading to her death.
Erwin Kress, spokesperson for the Humanist Association of Germany – Federal Association, considers the balance between “naturalistic distinction” and “normative consideration” to be difficult to understand and difficult to comprehend in practice. Overall, he describes the BGH’s decision as a “double-edged sword”. On the one hand, he sees it as a strengthening of the right to self-determination: every person capable of making a decision has the right to voluntarily end their life and to make use of assisted suicide for this purpose. “All members of the Bundestag who now want to enshrine a curtailment of this right in the Criminal Code should bear this in mind once again,” demanded Kress with a view to the current inter-party draft legislation on the new regulation of assisted suicide.
At the same time, Kress criticizes the ruling: “The Federal Court of Justice has made the clear boundary to killing on demand permeable, at least allowing an interpretation of when suicide ends and killing by others begins.”
Clear distinction needed between assisted suicide and non-punishable assisted suicide
In its decision, the Federal Court of Justice also spoke out in favor of a constitutional exception to the previous rigid interpretation of Section 216 (1) StGB (killing on demand): With regard to the ruling of the Federal Constitutional Court in 2020, in which the “ban on assisted suicide in the course of business” (Section 217 StGB) was overturned, the BGH judges stated that an exception was needed at least in those cases “in which it is de facto impossible for a person willing to die to implement their decision, made free of any lack of will, to depart from life themselves, but rather they are dependent on another person to carry out the act directly leading to death”. In other words: Anyone who is physically incapable of ending their own life should be allowed to seek (non-punitive) help.
In the Netherlands, for example, it is legally possible to initiate an euthanasia by a doctor using an injection. However, Kress considers this to be “unacceptable” in Germany, particularly in light of the country’s history of euthanasia.
On the contrary, the Humanist Association of Germany considers the criterion of active authorship to be ethically indispensable and viable. On this basis, it is possible to distinguish between permitted assisted suicide and prohibited homicide in a generally understandable way. Kress also argues: “For everyone, even an almost completely paralyzed person who can still express free will, there are possibilities and techniques to initiate the use of a lethal means through their own actions.” The assistance then only relates to the provision, not to an act of killing. “For us, it is important that the person who is capable of voluntary suicide always has full control over the act and that abuse of assistance is ruled out,” Kress continued.
The HVD Federal Association had already in May 2020 a draft for a “Act on the Management of Assisted Suicide and Suicide Conflicts” and furthermore in February 2022 corresponding points of reference for the new regulation to the members of the Bundestag.
