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On The Value of Guilt and Moral Charges – Anticipating the ECtHR’s Judgment in Karsai v. Hungary

In the wake of the summer of 2015, a solemn prognosis was delivered by a leading physician at the Medical Centre of the Hungarian Defense Forces. The news foretold a gradual decline in my liver function, painting a stark reality where, by the age of 40, my survival would hinge on a necessary liver transplant. I’m not here to delve into specifics of the autoimmune disease afflicting me; statistics reveal its rarity, impacting an estimated 1-16 individuals per 100,000. I think I won’t let the cat out of the bag when admitting: within the current landscape of medical science, one cannot find an effective cure for this condition.

Amyotrophic Lateral Sclerosis—the name of the illness diagnosed in August 2022 in Dániel Karsai, a renowned Hungarian constitutional lawyer. The abbreviated medical description released by the Mayo Clinic likely falls short in encapsulating the tragedy unfolding within the patient’s body and mind throughout the progression of this condition: ’[ALS] is a nervous system disease that affects nerve cells in the brain and spinal cord. ALS causes loss of muscle control. The disease gets worse over time… Eventually ALS affects control of the muscles needed to move, speak, eat and breathe. There is no cure for this fatal disease.

Drawing a comparison between my situation and that of Dániel Karsai would undoubtedly be unfair and unethical. It’s akin to comparing apples to oranges. Obviously, I won’t even attempt it. However, both these life circumstances undeniably equip me with a deep sense of empathy toward the constitutional lawyer navigating through his early forties.

Hence, I find it impossible to disregard the profoundly intimate and subjective arguments presented by Daniel Karsai in favor of assisted suicide. In short, contemplating Dániel Karsai’s story has stirred within me the wish to aid him, a brother in pain, in any way I can.

This is because at one point of Dániel Karsai’s life he will find himself at a pivotal juncture, facing an illness that compels him to contemplate ending his journey. However, the assistance he requires to proceed with this decision comes with a severe legal consequence in Hungary. Individuals, be they doctors, friends, or any other support figure, who extend assistance in such matters risk prosecution under the Hungarian Criminal Code and associated laws governing assisted suicide.

Consequently, Dániel Karsai, armed with comprehensive knowledge of the relevant domestic and international legal frameworks, has embarked on a mission. His goal is to submit a legal brief to the European Court of Human Rights, intending to shape a more liberal approach by the Strasbourg jurisprudence concerning assisted suicide. Through this, he aims to trigger a transformative shift in Hungary’s relevant regulations, culminating as a quasi-capstone to his professional career.

Should Dániel Karsai succeed, Strasbourg’s final decision could impose obligations on Hungary, potentially commanding it to eliminate the criminal liability associated with assisting terminally ill patients in their end-of-life decisions.

The impact factor of the case is exemplified by the Hungarian National Election Office’s latest decision. Dániel Karsai introduced a joint referendum initiative aimed at relaxing the criminal law regulations on assisted suicide, which was rejected by the National Election Commission. A key argument put forth is that a successful referendum would necessitate an amendment to the Basic Law itself, which is prohibited.

I concur with the Commission’s stance to the extent that the Fundamental Law of Hungary articulates, in various instances (besides the National Avowal, in Article R, paragraph 4), that the Hungarian legal framework is designed to govern lives within the context of Christian culture. Any shift towards liberalism would likely impact this provision, at the very least.

Furthermore, his success could not only align the Strasbourg practice but also promise a liberal shift across Europe concerning euthanasia-related issues.

Considering these possibilities, my concerns regarding Dániel Karsai’s endeavors create a profound divide between my fundamentally conservative worldview and my deeply personal sense of empathy.

What Dániel Karsai is asking for is essentially an abstract ex-post review (posterior norm control). The Hungarian Constitutional Court has jurisdiction to perform this. If the Constitutional Court finds the petition appropriate, it will rule on the merits of the case. If the Constitutional Court ultimately rejects the petition, Dániel Karsai could have appealed to Strasbourg in possession of a decision he did not like.

What Dániel Karsai seeks from the European Court of Human Rights should have been pursued within the Hungarian Constitutional Court, had circumstances allowed it. Nevertheless, given the legislative shifts that have occurred some years ago, he finds himself unable to undertake this personally. Yet, indirect routes could have been explored, such as leveraging the Commissioner for Fundamental Rights or obtaining the backing of a quarter of the Members of Parliament. Admittedly, this latter path is fraught with political complexities, but perhaps this case could have catalyzed the opposition’s quest for a reformed political identity amid their search for solid ground.

I concede that Dániel Karsai’s direct approach to the European Court of Human Rights might indeed prove more efficient. His choice might be attributed to his subjective sense of what we commonly perceive as boundless: time, slipping away day by day.

At the same time, and partly because of these circumstances, I hope that the European Court of Human Rights in Strasbourg will stick to the essence of its current practice:

’The consistent emphasis in all the cases brought before the Court under this provision has been the obligation of the State to protect life and the Court was not persuaded that the right to life could be interpreted as involving a negative aspect. Article 2 is unconcerned with issues to do with the quality of living or what a person chooses to do with his or her life and it cannot, without a distortion of language, be interpreted as conferring a right to die, nor can it create a right to self-determination in the sense of conferring on an individual the entitlement to choose death rather than life. Accordingly, no right to die, whether at the hands of a third person or with the assistance of a public authority, can be derived from Article 2.’

Moreover, according to the European Court of Human Rights, states retain the authority to evaluate the potential risks associated with decriminalizing assisted suicide. They also might, if deemed appropriate, opt to decriminalize such interventions.

However, I’ll abstain from delving into a discourse on these risks within this personal piece, as they might appear cumbersome. Instead, I’ll adhere to pragmatism, a stance closely aligned with my own perspective, albeit tinged with idealism.

What can a person with no criminal record, who is not a repeat offender or recidivist, who confesses and repents, expect before the Hungarian courts if he or she is involved in the execution of a suicide? We might easily find ourselves on roads untraveled among the fields of Hungarian jurisprudence, lacking notable recent precedents after the 1990s (or substantial publicity, if any cases have been prosecuted since).

Assisted suicide indeed carries the weight of a potential prison sentence ranging from 1 to 5 years under Hungarian law. Yet, whether a suspended sentence is even a conceivable consideration lies within the discretionary powers of the judiciary in each instance.

I hold a certain conviction that such considerations are plausible, even given the current stringency of the Criminal Code on this matter. Nonetheless, I harbor no desire to inhabit a society where a court refrains from deeming someone ‘guilty’ if they’ve played any role in another person’s demise.

Gergely Dobozi is a commentator and editor holding a law degree from ELTE University. Currently he is a Research Fellow at Danube Institute and editor-in-chief at Hungarian Conservative Online. He began his career as a commentator at Mandiner in 2020 where he maintained the column titled ‘Precedens’ that covered and analysed developments in the world of law. As a third-year PhD student at the University of Public Service, his areas of expertise include state sovereignty, judicial activism, international and EU law.

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