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CASE OF LINGS v. DENMARK
CASE OF LINGS v. DENMARK
JUDGMENT
STRASBOURG
12 April 2022
This judgment will become final in the circumstances set out in Article 44 §
2 of the Convention. It may be subject to editorial revision.
LINGS v. DENMARK JUDGMENT
INTRODUCTION
1. By a final judgment of the Supreme Court of 23 September 2019, the
applicant, a retired physician, and member of an association in favour of
euthanasia, was convicted of two counts of assisted suicide, and one count of
attempted assisted suicide under Article 240 of the Danish Penal Code. He
was sentenced to 60 days’ imprisonment, suspended. Maintaining that he had
merely provided general advice about suicide, the applicant complained that
his conviction was in breach of Article 10 of the Convention.
THE FACTS
2. The applicant was born in 1941 and lives in Kværndrup. He was
represented by Mr Jonas Christoffersen, a lawyer practising in Copenhagen.
3. The Danish Government (“the Government”) were represented by their
Agent, Mr Michael Braad, from the Ministry of Foreign Affairs, and their
Co-Agent, Ms Nina Holst-Christensen, from the Ministry of Justice.
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he had written: “If you are able to go through with it, you will be 100%
certain. Remember in that case that it is necessary to put a rubber band around
the neck.” On 10 August 2018, C had been found dead in her bed with a
plastic bag over her head.
16. In its judgment of 23 September 2019, the Supreme Court stated:
“Liability for assisted suicide or attempts at assisted suicide
By the High Court judgment, [the applicant] was found guilty on two counts of
violation of section 240 of the Penal Code for assisted suicide and one count of an
attempt at assisted suicide. This case concerns whether, according to the findings of fact
of the High Court, the acts performed by [the applicant] as described in the three counts
are punishable because they are considered assistance as set out in the provision, and
whether the conditions for imposing a sentence for the attempt have been met. In that
case, there is also the issue of the length of the sentence.
It is a punishable offence under section 240 of the Penal Code to assist another person
in ending his or her life, but it is not a punishable offence to attempt to take one’s own
life. Accordingly, this provision independently criminalises assisted suicide. The
Supreme Court finds that it will be determined based on an interpretation of this
provision what kinds of assistance fall within the scope of the liability, for which reason
it is not possible simply to use as a basis those kinds of complicity that are punishable
under the general rule of law set out in section 23 of the Penal Code as complicity in
offences. Minor assistance may fall outside the scope of criminal offences under section
240.
As regards count 2), [the applicant] has been found guilty of violation of section 240
of the Penal Code because he procured medications for B prior to B’s death on 7 May
2017, knowing full well that the medications were intended for his suicide. As regards
count 1), [the applicant] has been found guilty of attempted violation of section 240
because he procured medications for A, knowing full well that the medications were
intended for A’s suicide, which suicide failed, however.
The Supreme Court concurs in the finding that [the applicant’s] acts as described in
count 1) and count 2) are punishable as assisted suicide as set out in section 240 of the
Penal Code. As regards count 1), the Supreme Court concurs in the finding that the
conditions for sentencing someone for an attempt have been met as the maximum
penalty under section 240 of a fine or imprisonment for a term not exceeding three years
makes it possible to sanction attempts, see section 21(3) of the Penal Code. [The
applicant’s] submission concerning the legislative history of section 240 cannot lead to
a different conclusion.
As regards count 3), [the applicant] has been found guilty of having in emails
exchanged with C advised her about suicide methods, including by confirming the
choice of medications and by confirming that it was a good idea to combine them with
a plastic bag and by writing, ‘If you are able to go through with it, you will be 100%
certain. Remember in that case that it is necessary to put a rubber band around the neck.’
Thereby, he assisted her in committing suicide by taking medicines and putting a plastic
bag over her head and closing it with a rubber band.
Opinion of three judges ... concerning count 3):
We concur in the finding that by giving advice in his email exchange with C, [the
applicant] assisted her in a specific and significant way in committing suicide, and that
the advice is not exempt from punishment due to the circumstance that his advice was
based on a general guide that had lawfully been uploaded to the website of ‘Physicians
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in Favour of Euthanasia’. In this context, we have also taken into account that the
specific advice offered by [the applicant] to C was suited to a greater extent than the
general guide to intensifying her desire to commit suicide. In our opinion, there is no
basis for finding that it would be contrary to Article 10 of the European Convention on
Human Rights to convict the defendant on this count.
Opinion of [two] judges ... concerning count 3):
It appears from the case file that C contacted [the applicant] in July 2018 and indicated
in her emails that she was 85 years old and suffered from many infirmities, that she
wished to end soon and that things had been clarified with her close family. She had
procured the necessary pills, and her intention was also to combine them with a plastic
bag. She was very frightened of the potential risk that she would fail, and she was
nervous as to whether she would be able to go through with it on her own. [The
applicant] then passed on information from the lawful guide on the website, but he did
not pass on any information not already available from the website. He neither
advocated nor encouraged her to commit suicide. In these circumstances, we find that
the information given by [the applicant] to C was not of such a nature that the
information can independently be considered to constitute a punishable act of assistance
in her ending her life. Accordingly, we find that [the applicant] must be acquitted on
this count of violation of section 240 of the Penal Code, which must also be considered
to accord best with Article 10 of the European Convention on Human Rights on the
right to receive and give information, see in this respect the judgment delivered on
29 October 1992 by the European Court of Human Rights in cases 14234/88 and
14235/88, Open Door and Dublin Well Woman v. Ireland.”
17. The Supreme Court, by a majority of three judges, sentenced the
applicant to 60 days’ imprisonment, suspended. It was taken into account as
an aggravating circumstance that to a certain extent the acts were committed
in a systematic manner and that the applicant had been charged on three
counts, the last act being committed after he had been provisionally charged
by the police for violation of section 240 of the Penal Code. It was considered
a mitigating circumstance that the applicant was almost 78 years old. The
minority of two judges found that the applicant should have a suspended
sentence of imprisonment for a term of 30 days, since count 1) was merely an
attempt and under count 3) he had not assisted to a significant extent.
Moreover, the minority of the judges found that the acts had not been
committed in a systematic manner.
Section 21
(1) Acts aimed at inciting or assisting the commission of an offence are punishable as
attempts if the offence is not completed.
(2) The penalty prescribed for an offence may be reduced for attempts, especially
where an attempt reflects little strength or persistence of criminal intent.
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(3) Unless otherwise provided, attempts will only be punished if the offence is
punishable by imprisonment for a term exceeding four months.
Section 23
(1) The penalty provided for an offence applies to everybody who is complicit in the
act by incitement, aiding or abetting. The punishment may be reduced where a person
intended only to provide minor assistance or support an intent already formed, and
where the offence has not been completed or intentional complicity failed.
(2) The punishment may also be reduced where a person is complicit in the breach of
a special duty to which he is not subject.
(3) Unless otherwise provided, the punishment for complicity in offences that do not
carry a sentence of imprisonment for a term exceeding four months may be remitted
where the accomplice intended only to provide minor assistance or support an intent
already formed, and where his complicity was due to negligence.
Section 239
Any person who kills another at such other person’s explicit request is sentenced to
imprisonment for a term not exceeding three years.
Section 240
Any person who assists someone in deliberately ending his life is sentenced to a fine
or imprisonment for a term not exceeding three years.
19. Assisted suicide has been criminalised since 1930. Section 240 of the
Penal Code was given its current wording by Act No. 218 of 31 March 2004.
20. In November 2004, the Ministry of Justice requested the Standing
Committee on the Criminal Code (Straffelovrådet), which is an advisory body
tasked with making recommendations on legislative issues related to criminal
law, issues of principle relating to the stipulation of administrative criminal
law provisions and the implementation in practice of crime policy measures,
to consider the issue of whether to criminalise also general encouragement of
suicide or suicide “recipes” not aimed at specific persons. In its Report
No. 1462/2005 the said committee did not recommend the criminalisation of
general encouragement to suicide. In respect of the scope of section 240 of
the Penal Code it stated as follows:
“2.2.1. It is not a punishable offence to attempt to take one’s own life, but it is a
punishable offence under section 240 of the Penal Code to assist another person in
ending his or her life. The maximum sentence is a fine or imprisonment for a term not
exceeding three years. The offence is consummated when the victim dies. Depending
on the circumstances, it is possible to sentence a person for an attempt at assisting
another person in ending his or her life, see section 240, read with section 21, of the
Penal Code. Attempts comprise any act aimed at inciting or assisting in the commission
of an offence, see pp. 119ff of The Annotated Criminal Code (Den kommenterede
straffelov) (on General rules). The question is whether section 240 only applies to
physical and mental assistance of a qualified nature, or whether in accordance with the
general Danish law rule on complicity set out in section 23 of the Penal Code, the
provision also applies if the offender, by incitement, aiding or abetting, deliberately
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assists a particular person in committing suicide, see pp. 206ff (on General rules) and
p. 314 (on Special rules) of The Annotated Criminal Code. For an act to be punishable
under section 240, it is required in any circumstances that the offender must have
performed a specific act of assistance with the intent that one or more specific persons
commit suicide. Encouragement of suicide and descriptions of methods to commit
suicide do not fall within the scope of section 240 if not directed at specific persons.
Therefore, the presentation or dissemination of suicide recipes through Internet
websites or the like cannot normally be punished under section 240.
As mentioned above, a person can be sentenced for assistance under section 240 of
the Criminal Code only if the purpose of the offence of assistance is a specific act of
assistance. [...]”.
21. The issue of euthanasia and assisted suicide has regularly been the
subject of public and political debate in Denmark, but so far there has not
been a political majority in Parliament in favour of amending section 240 of
the Penal Code.
22. The issue of euthanasia and assisted suicide has also been considered
by the Council of Ethics (Det Etiske Råd). The Council of Ethics is an
independent body established in 1987 to advise Parliament, ministers and
public authorities on ethical issues in health care while respecting the
integrity and dignity of humans and future generations. In 1996, 2003 and
2012, the Council of Ethics published reports and recommendations on
euthanasia and assisted suicide. A large majority of the seventeen members
of the Council was against the legalisation of euthanasia and assisted suicide
in all three reports. The Council has balanced the considerations, on the one
hand factors like the right to personal autonomy and on the other hand factors
like the sanctity of human life as a fundamental ethical standard and the
incompatibility of euthanasia with an ethically appropriate relationship
between a physician and a patient. The Danish Council of Ethics discussed
the subject again in 2021 on the basis of a judgment delivered by the German
Federal Constitutional Court in February 2020, which had ruled that the
maintenance of a prohibition of assisted suicide was unconstitutional.
23. In 2018 Parliament amended the Danish Health Care Act
(sundhedsloven), enhancing patients’ right to refuse treatment, including life-
sustaining treatment, which means that a patient who has come to terms with
circumstances and does not want any life-sustaining treatment can refuse the
treatment offered even though the consequence of withdrawing from life-
sustaining treatment is that the patient will die right away. Moreover, a system
of living wills has been set up under which individuals can make binding
advance decisions to refuse life-sustaining treatment in specific situations that
may occur some time in the future if they become permanently incompetent
and are no longer able to exercise their right to personal autonomy. Prior to
the adoption of the amendment bill, it was discussed at the readings in
Parliament what is a dignified death and what is the right to personal
autonomy, and it was discussed that it must be ensured that health care
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COMPARATIVE LAW
26. In 2012 a comparative research in respect of forty-two Council of
Europe Member States (see Koch v. Germany, no. 497/09, § 26, 19 July 2012)
showed that in thirty-six countries (Albania, Andorra, Austria, Azerbaijan,
Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic,
Denmark, Estonia, France, Georgia, Greece, Hungary, Ireland, Latvia,
Lithuania, the Former Yugoslav Republic of Macedonia, Malta, Moldova,
Monaco, Montenegro, Norway, Poland, Portugal, Romania, Russia, San
Marino, Spain, Serbia, Slovakia, Slovenia, Turkey, Ukraine and the United
Kingdom) any form of assistance to suicide was strictly prohibited and
criminalised by law. In Sweden and Estonia, assistance to suicide was not a
criminal offence; however, Estonian medical practitioners were not entitled
to prescribe a drug in order to facilitate suicide. Conversely, only four
member States (Switzerland, Belgium, the Netherlands and Luxembourg)
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THE LAW
33. The applicant complained that the Supreme Court’s judgment of
23 September 2019 breached his right to freedom of expression guaranteed
by Article 10 of the Convention, which reads as follows:
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“1. Everyone has the right to freedom of expression. This right shall include freedom
to hold opinions and to receive and impart information and ideas without interference
by public authority and regardless of frontiers. This Article shall not prevent States from
requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation or rights of others,
for preventing the disclosure of information received in confidence, or for maintaining
the authority and impartiality of the judiciary.”
A. Admissibility
34. The Court notes that the application is neither manifestly ill-founded
nor inadmissible on any other grounds listed in Article 35 of the Convention.
It must therefore be declared admissible.
B. Merits
1. Parties’ arguments
35. The applicant submitted, inter alia, that the case concerned, on the one
hand, the general right to receive information on assisted suicide, a matter in
which the Government’s previous wide margin of appreciation should now
be decreased due the growing legalisation of assisted suicide in Europe and
the increasing shift in public opinion on this subject.
36. On the other hand, the case concerned the applicant’s right to freedom
of expression. In essence the applicant had been convicted for orally
providing individuals with information, which he could legally provide in
writing to the general public in his guide on suicide. He referred to the finding
of the minority of the Supreme Court in respect of count 3). Such an
interference with his right to freedom of expression, which did not relate to
the actual subject of the expression or information but rather to how and to
whom it was provided, could not be considered proportionate.
37. The Government pointed out, inter alia, that encouragement of
suicide and descriptions of methods to commit suicide fell outside the scope
of section 240 of the Penal Code if it was not directed at specific persons.
However, it was punishable under the said provision if the offender
performed a specific act of assistance with the intent that an individual
commit suicide. Thus, the guide to commit suicide, prepared by the applicant,
was legal, whereas it was illegal for him to provide specific advice to
particular persons on how they could commit suicide. In addition, under
counts 1) and 2), the Supreme Court had unanimously found that, besides
having given specific advice, the applicant had also performed specific acts,
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the primary responsibility to secure the rights and freedoms defined in the
Convention and the Protocols thereto, and in doing so they enjoy a margin of
appreciation, subject to the supervisory jurisdiction of the Court. Through
their democratic legitimation, the national authorities are, as the Court has
held on many occasions, in principle better placed than an international court
to evaluate local needs and conditions (see, inter alia, Lekić v. Slovenia [GC],
no. 36480/07, § 108, 11 December 2018; see also Protocol No. 15, which
entered into force on 1 August 2021).
45. It is not in dispute between the parties that the applicant’s conviction
constituted an interference, prescribed by law, namely section 240 of the
Penal Code, which pursued the legitimate aims of the protection of health and
morals and the rights of others. The Court notes that regarding counts 1) and
2) the applicant was convicted not only for having provided guidance, but
also for having, by specific acts, procured medications for the persons
concerned (see paragraphs 13 and 14 above). The Court therefore finds reason
to doubt whether in respect of these counts there was indeed an interference
with the applicant’s right to freedom of expression within the meaning of
Article 10. Nevertheless, in the following it will proceed on the assumption
that there was.
46. Assisted suicide has been criminalised in the Danish legislation since
1930. The current wording of section 240 of the Penal Code is from 2004.
For an act to be punishable under section 240, it is required that the offender
must have performed a specific act of assistance with the intent that one or
more specific persons commit suicide. Encouragement of suicide and
descriptions of methods of committing suicide do not fall within the scope of
section 240 if not directed at specific persons. Therefore, the presentation or
dissemination of suicide recipes through Internet websites or the like cannot
normally be punished under section 240 (see paragraph 20 above).
47. In the present case, the Court is not required to determine whether the
criminalisation of assisted suicide is justified. Under the Court’s
well- established case-law, in proceedings originating in an individual
application under Article 34 of the Convention, its task is not to review
domestic law in abstracto. Instead, it must determine whether the manner in
which it was applied to, or affected, the applicant gave rise to a violation of
the Convention. It can thus only review whether or not the application of
section 240 of the Penal Code in the case of the applicant was “necessary in
a democratic society” within the meaning of Article 10 § 2 of the Convention
(see, inter alia, Perinçek v. Switzerland, cited above, § 226).
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48. The answer to the question whether such a necessity exists depends
on the need to protect the “health and morals” and “the rights of others” in
issue by way of criminal law measures.
49. Turning first to its case-law, the Court found in Haas v. Switzerland
(no. 31322/07, § 54, ECHR 2011) that Article 2 of the Convention, which
creates for the authorities a duty to protect vulnerable persons, even against
actions by which they endanger their own lives, also obliges the national
authorities to prevent an individual from taking his or her own life if the
decision has not been taken freely and with full understanding of what is
involved.
50. In Koch v. Germany (no. 497/09, § 51-52, 19 July 2012, and the
references cited therein), the Court acknowledged that an individual’s right
to decide in which way and at which time his or her life should end, provided
that he or she was in a position freely to form his or her own will and to act
accordingly, was one of the aspects of the right to respect for private life
within the meaning of Article 8 of the Convention.
51. Moreover, in Gross v. Switzerland (no. 67810/10, §§ 58-60, 14 May
2013) the Court considered that the applicant’s wish to be provided with a
dose of sodium pentobarbital allowing her to end her life fell within the scope
of her right to respect for her private life under Article 8 of the Convention.
It will be recalled that the case was referred to the Grand Chamber, which on
30 September 2014 declared it inadmissible for abuse of the right of
application within the meaning of Article 35 § 3 (a) of the Convention.
52. There is no support in the Court’s case-law, however, for concluding
that a right to assisted suicide exists under the Convention, including in the
form of providing information about or assistance that goes beyond providing
general information about suicide (compare, under Article 2, Pretty v. the
United Kingdom, no. 2346/02, § 40, ECHR 2002-III). Accordingly, as the
applicant was not prosecuted for providing general information about suicide,
including the guide on suicide that had been made publicly available, but was
prosecuted for having assisted suicide through specific acts, the Court finds
that the present case is not about the applicant’s right to provide information
that others under the Convention had a right to receive.
53. Before the Supreme Court, the applicant submitted that he had only
assisted A, B and C by providing guidance and information, which was
already legally accessible on the internet, and which failed to reach the
threshold under section 240 of the Penal Code. He relied specifically on
Article 10 of the Convention.
54. As regards counts 1) and 2) the Supreme Court found unanimously
that the applicant had not only provided guidance, but had also, by specific
acts, procured medications for the persons concerned, in the knowledge that
it was intended for their suicide. Such acts were clearly covered by
section 240 of the Penal Code, and implicitly, did not give rise to an issue
under Article 10.
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