Thursday, October 28, 2010

Euthanasia and Assisted Suicide

Illustration Roel Venderbosch,

If a patient suffers unbearably and when there is no prospect of improvement, some regard the termination of life of the patient as the only option to end the unendurable suffering as quickly as possible.

The Merriam Webster dictionary defines euthanasia as: "the act or practice of killing or permitting the death of hopelessly sick or injured individuals (as persons or domestic animals) in a relatively painless way for reasons of mercy" [1]. In case of euthanasia, the death of the patient is caused by a third party. Self-assisted suicide on the other hand is not caused by a third party, but by the patient him or herself after he or she has been provided with the lethal means to commit suicide.

Euthanasia is a highly debated subject. In most countries it is a punishable offence. Euthanasia can be volunary or non-voluntary. In case of voluntary euthanasia a patient asks a physician to practice euthanasia in order to end his or her life to stop the unbearable suffering. When a patient cannot decide for him or herself, or cannot make his or her wishes known to other people (such as is the case when a person is in coma, or a young child, senile, mentally disturbed, severely brain damaged or severely mentally retarded), euthanasia performed on such a person is considered non-voluntary [2]. Euthanasia is considered involuntary when a patient is against the practice of euthanasia on his or her behalf. [3]

Euthanasia is considered passive when common treatments necessary for the continuance of life are witheld from the patient. In case of active euthanasia, lethal substances or means are used by a physician to end the life of a patient. [4]

In most countries the practice of euthanasia is illegal. Only in Washington (USA), Oregon (USA), Monatana (USA), The Netherlands, Belgium and Luxemburg, there are laws which permit the practice of euthanasia and assisted suicide under certain circumstances and when specific guidelines are followed. [5]

The Netherlands is the first country to legalise the practice of euthanasia. Since 2002 the Dutch Criminal Code of The Netherlands includes grounds for immunity from criminal liability. However, there are strict boundaries. The law on euthanasia is incorporated in Article 293 and inArticle 294 of the Ducth Penal Code. Article 294 describes the sanctions for the violation of the criminal law as specified in article 293.

In article 293 reference is made to Article 2 of the Termination of Life on Request and Assisted Suicide Act (Euthanasia Act) In article 2 the due care conditions are given for a performance of euthanasia or assisted suicide permitted by Dutch law [6]:

- The patient suffers unbearably and there is no prospect of improvement.
- The patient's request for euthanasia is voluntary and persists over time. When the patient's request for euthanasia has been made under the influence of others, a psychological illness or drugs, the request can however not be granted.
- The patient has to be fully aware of his or her condition, prospects and options.
- At least one or more independent doctors need to be consulted to consider the possibility of euthanasia. The physician needs to give a written opinion in which he confirms the above mentioned due care conditions.
- The euthanasia performed by the doctor or the assisted suicide by the patient itself needs to be carried out with due medical care and attention. The doctor needs to be present when assisted suicide is performed.
- The patient must be at least 12 years old. Patients between 12 and 16 years old need the consent of their parents when they request euthanasia on their behalf.

Dutch physicians who terminate a life at the request of a patient are not punishable when they act in accordance with the Dutch Criminal Code and the procedures of the euthanasia review committee. [7] A physician who practiced euthanasia has to report the death by non-natural causes to the regional euthanasia review committee. [8].

According to section 2 of Article 293 of the Dutch Penal Code, it is not punishable for a physician to end a life at the explicit request of a patient when he follows the procedure provided by the law and he complies with the due care criteria for euthanasia. Patient and doctor must discuss any alternative treatment. The patient has to suffer unbearably without a prospect of improvement. As long as there are alternative treatments available, there is prospect of improvement. [9] Article 294 of the Ducth Penal Code describes the sanctions for the violation of the criminal law as specified in article 293.

The Dutch Ministry of Security and Justice does not allow people from other countries to come to The Netherlands in order to seek termination of life or assisted suicide because the Dutch legislation permits these actions under certain cicumstances. [10]

In February 2010, a group of Dutch academics and politicians which calls itself 'Out of Free Will' launched a petition in support of assisted suicide or euthanasia for Dutch citizens over 70 who feel tired of life. This petition supports modification of the Euthanasia Act in order to legalise euthanasia and assisted suicide when an elderly person above 70 years of age is tired of life even if the due care criteria of the absence of the prospect of improvement and unbearable suffering are not be met. Such a modification of the Euthanasia act would imply that persons above 70 years of age should have the right to professional medical help to have their lives terminated when they feel tired of life. [11] So far the Dutch Euthanasia Act has not been modified yet.

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[1] As quoted from The Merriam-Webster Dictionary.
[2] As quoted from What is non-voluntary euthanasia? ,
[3] As quoted from Euthanasia Wikipedia
[4] Ibid.
[5] See Euthanasia and Assisted Suicide: Frequently Asked Questions, International Task Force on Euthanasia and Assisted Suicide
[6] As quoted from Article 2 of the Termination of Life on Request and Assisted Suicide Act (Euthanasia Act), For an English version, see for example, Termination of Life on Request and Assisted Suicide (Review Procedures) Act, Right to Die (NVVE)
[7]See Euthanasia, Rijksoverheid
[8] Ibid.
[9] See, for example, FAQ – Euthanasia in the Netherlands, Radio Netherlands Worldwide
[10] See Page nine of the brochure of the Dutch Ministry of Welfare and Sport about the Euthanasia Act of 2002.
[11] See Ruim 40.000 mensen steunen hulp zelfdoding , NRC Handelsblad

Tuesday, October 26, 2010

International and European criminal measures on intellectual property rights

On October 2, 2010, the 11th and final round of the negotiations for the Anti-Counterfeiting Trade Agreement (ACTA) was concluded successfully in Tokyo, Japan. The Government of Japan hosted the negotiations. Participants in the negotiations included Australia, Canada, the European Union (EU) - represented by the European Commission and the EU Presidency (Belgium) and the EU Member States- , Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States of America.

ACTA aims to establish a comprehensive international framework which will assist Parties to the agreement in their efforts to effectively combat the infringement of intellectual property rights, in particular the proliferation of counterfeiting and piracy. The draft of the agreement includes state-of-the-art provisions on the enforcement of intellectual property rights. This includes provisions on civil, criminal, and border enforcement measures, robust cooperation mechanisms among ACTA Parties to assist in their enforcement efforts, and establishment of best practices for effective intellectual property rights enforcement.

EU criminal measures and competence
The Presidency of the Council, representing the Member States, negotiated the criminal measures. It is uncertain whether the Presidency is competent to do so. According to art. 3.1 of the Treaty on the functioning of the European Union (TFEU), the European Union has exclusive competence in the area of common commercial policy. In this case, ACTA negotiations should possibly have been conducted by the European Commission. The Presidency of the Council may not be competent to initial criminal measures in trade agreements.

Until September 2005 it was commonly understood that the Treaty establishing the European Community conferred no power to define criminal offences or prescribe criminal sanctions. The extent of the European Union’s legislative competence in relation to criminal law and procedure was generally considered to be limited to title VI (provisions on Police and Judicial Cooperation in criminal matters, commonly referred to as the third pillar) of the treaty on European Union.

The Treaty of Lisbon entered into force on 1 December 2009. The EU is competent to make criminal law. Criminal measures on intellectual property rights have to be based on art 83.2 TFEU: “If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such directives shall be adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article 76.” Furthermore, the criminal measures have to comply with the Treaties, and measures have to be “essential” and comply with the principle of proportionality (see also the controversy competence cases of the European court of justice, case C-176/03 and case C-440/05, European Commission vs European Council).

The ACTA agreement's appropriateness should match the EU principle of proportionality. As a consequence of that EU principle, the qualification characteristics of the elements of a crime must be defined as clearly and narrowly as possible. The Max Planck Institute concluded in its statement on the proposal of the Criminal Measures IP Directive by the European Commission (COM/2005/276/FINAL), that harmonisation of criminal law in the field of intellectual property, must remain confined to cases of clear piracy and counterfeiting:

“14. Restricting the application of the directive to infringements carried out “on a commercial scale” fails to provide for an appropriate and sufficiently precise definition of the elements of a crime, all the more as it would practically only exclude acts undertaken in good faith by consumers. An example of a more precise definition of what constitutes counterfeiting and piracy can be found in Council Regulation (EC) No 1383/2003.
15. Indeed, when proper account is taken of the proportionality principle, harmonisation of criminal penalties can only be justified in relation to acts fulfilling the following elements cumulatively:
- Identity with the infringed object of protection (the infringing item emulates the characteristic elements of a protected product or distinctive sign in an unmodified fashion [construction, assembly, etc.]).
- Commercial activity with an intention to earn a profit.
- Intent or contingent intent (dolus eventualis) with regard to the existence of the infringed right.”

Since the broad definition of commercial scale in ACTA with “Commercial activity with an intention to earn a profit”, one can only conclude ACTA’s criminal measures fail to meet the EU principle of proportionality. According to an analysis of the FFII (Foundation for a Free Information Infrastructure) the Anti-Counterfeiting Trade Agreement is not in line with present EU laws.
An opinion of the European Court of Justice as to whether ACTA is compatible with the EU Treaties and laws should be obtained.

Publications in the Peace Palace Catalogue:
About ACTA
About European criminal law and EU competence
About European union, intellectual property and counterfeit

Monday, October 18, 2010

Religion and Constitutional Rights

Lately constitutional rights law cases are very much at the centre of public attention in the Netherlands. The cases have a common denominator: religion. The on-going case of Geert Wilders concerning his views on the issues of immigration, Islam and Islamic extremism and freedom of speech in an effort to defend Dutch culture and national identity; the dropping of the case against Dutch cartoonist Gregorius Nekschot (pseudonym), persecuted for several years for his anti-Islamic cartoons criticizing Islam’s perceived unwillingness to adopt the Dutch value of tolerance; and last but not least, the case against the ‘Staatkundig Gereformeerde Partij’ known by the Dutch acronym ‘SGP’, for not allowing women to stand for election.

The SGP is one of the oldest parties in the Netherlands. It was founded in 1918 by fundamentalist conservative Calvinists. Since entering parliament in 1922, the SGP has always been represented in parliament with two to three seats, because of its very loyal group of voters.
Not only does it reject the obvious subjects such as abortion, euthanasia, gay marriage and television, it also rejects women in politics. According to the SGP, the bible is very clear on these subjects. Men and women serve different roles in society and one of the consequences of this role is that women should not participate in politics.

Basing itself on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) the ‘Hoge Raad’ [Supreme Court] stated in a ruling* of 9 April 2010, that freedom of religion permits individuals the right to believe what they wish, and it also allows people the right to express their beliefs publicly. It does not, however, provide people with a free pass to violate national and international law. While members of the SGP are entitled to believe and practice their beliefs freely (even if those beliefs are anti-feminist), the party itself should not be allowed to practice those beliefs in a way that contradicts the law.

In a statement, the SGP criticized the ruling as “incomprehensible” and said it would have no immediate effect: “The SGP knows that it is dependent on God in all circumstances and will go on no less strongly carrying out its mission,” it said, “that is, bringing Biblical values into the governance and organization of the Netherlands.”

In its latest June election candidate list there were still only male candidates represented.

On Thursday 14 October 2010 the SGP announced that it would appeal the Supreme Court judgment before the European Court of Human Rights (ECtHR) in Strasbourg as the Supreme Court’s decision is at odds with with the ECtHR’s jurisprudence of the freedom of religion and the freedom of political association.

The CEDAW defines discrimination against women as "...any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field." With this in mind, the direct applicability awarded to the CEDAW in the Supreme Court decision can have far reaching consequences for other religions that discriminate against women in the Netherlands.

* Press Release [in Dutch only] ; Decision : LJN BK4549 [in Dutch only] and BK4547 [in Dutch only]

Friday, October 8, 2010

Shabtai Rosenne, London 1917- Jerusalem 2010

Professor Shabtai Rosenne, international jurist and diplomat, has died.

The Peace Palace has many memories of Rosenne. His activities as an international lawyer brought him there many times.
He lectured twice at the Hague Academy of International Law, in 1954 on United Nations Treaty Practice (Vol. 86, 1954 II) and in 2001 (Vol. 291, 2001) he gave an outstanding General Course. He was representative of Israel in the advisory proceedings before the ICJ in the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide Case (1951), and adviser in several cases (Elettronica Sicula S.p.A. (ELSI) (1987), Application of the Genocide Convention Case (1993). From 1994 to 1996 he was a Member of the Permanent Court of Arbitration, seated in the Peace Palace. He also was a member of this Court's Steering Committee.

In 2004 Rosenne was awarded The First Hague Prize for International Law. During the ceremony in the Peace Palace Judge Kooijmans read the Report of the Nominating Committee,‘Professor Rosenne has dedicated the greater part of his scholarly life to the study of the Courts’ [i.e., the International Court of Justice and its predecessor, the Permanent Court of International Justice] constitutional framework, their working-methods and their case-law. He is without peer in his chosen field and is universally respected. He is beyond any doubt the most authoritative expert on the Court and in pleadings his views are regularly invoked by the Parties, usually by both of them, since having Rosenne on your side is seen as an indisputable

Rosenne’s principal work on the ICJ “The Law and Practice of the International Court”is considered an indispensable guide for students in this field and is permanently available in the Reading Room of the Peace Palace Library.
This Library, specialized in international law, has an extensive collection of 195 publications (books, book chapters and articles) of Rosenne. From his early work “Israel’s Armistice Agreements” (1951) till his last article “The International Criminal Court and International Court of Justice”in 2009. The collection reflects his amazing knowledge of international law.
Professor Rosenne’s Peace Palace Library Registration Card:

Student of International Law!