News: Switzerland court allows defence of necessity in a case of termination of life on request

While the legal position of assisted suicide in Switzerland is well-known, termination of life on request has been less discussed. In addition to the offence of murder, some civil law jurisdictions have a separate, lesser offence of consensual homicide or termination of life on request. This is the case in Switzerland, where Article 114 of the Penal Code provides that: ‘Every person who shall for honourable reasons, especially mercy, kill a person on his or her serious and pressing request, shall be liable to imprisonment.’

In 2009, Daphné Berner, a retired physician who was a member of the organisation Exit, terminated the life of a woman with Amyotrophic Lateral Schlerosis (ALS) who had, subsequent to her repeated requests for assistance with suicide, lost the ability to perform the suicidal act herself as a result of a sudden deterioration in her condition. The judge in Neuchâtel found that it “would have been cruel not to act” and that the defence of necessity was applicable to the defendant’s actions and therefore acquitted her.

The decision may have limited value as a precedent as the judge found it significant that the defendant’s initial intention had been only to assist a suicide; the termination of life on request was not “premeditated”. Moreover, the decision is likely to be appealed by the prosecutor to the Tribunal fédéral, and until then it is not in force.

Update (4 January 2011): the prosecutor has decided not to appeal but he stated publicly that the decision of the Neuchâtel court would not be binding on other courts.

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