CRIMINALIZATION OF ASSISTING SUICIDE VIEWED THROUGH THE PRISM OF THE RIGHT TO LIFE

Abstract

Purpose: The right to life is the most fundamental right guaranteed by the Constitution of the Republic of Serbia and a number of international treaties. It belongs to the range of human rights that cannot be derogated from. However, there are inherent limitations to the right to life. Therefore, the dilemma arises whether the right to life, one of the non-derogatory rights in which certain inherent limitations are incorporated, is of an absolute character? If deprivation of life is allowed in some situations, does that, by the nature of things, deny it its absolute character? There are numerous decisions of the European Court of Human Rights that we will deal with on this occasion and try to determine how a right that is limited by its very definition (Article 2, paragraph 2 of ECHR) can be of an absolute nature. A special place will be taken by the analysis of the decision of the Federal Constitutional Court of Germany, in which we find that the criminalization of assisting suicide is unconstitutional. Also, of great importance is the ECtHR decision Mortier v. Belgium, which for the first time examined whether the act of euthanasia was in accordance with the ECHR and where the nature and scope of the state’s positive obligations (material and procedural) based on Article 2 were clarified in a very specific context.

Design/Methods/Approach: The work will be divided into several parts. The first part will deal with the provisions that guarantee the right to life in the most important international sources and the provision of Article 24 of the Constitution of the Republic of Serbia, with a special emphasis on the ECHR and the limitations of that right arising from the Convention itself. The second part opens the legal-philosophical dilemma of whether a person’s right to self-determination provides an opportunity for a person to decide on his own death. In this connection, Article 119 of the Criminal Code of Serbia is being considered in particular. The third part provides an overview of the practice of the ECtHR, as a basis for passing a final judgment on the character of Article 2 of the ECHR and Article 24 of the Constitution of the Republic of Serbia. And in the fourth part, we have a discussion, followed by conclusions. The author uses the legal-dogmatic method, the method of comparative, formal-logical analysis and the case study method.

Findings: Proceeding from the provisions of the Constitution of the RS and the provisions of the ECHR, as well as the basic features of criminal law and Article 3 of the Criminal Code, which states that the protection of human beings and other basic social values is the basis and limit for determining criminal acts, prescribing criminal sanctions and their application, to the extent in which it is necessary to suppress those acts, we come to a conclusion about the character of the right to life.

Originality/Value: The topic is of importance both nationally and internationally and can resolve numerous newly opened dilemmas related to criminal-law protection.