Yesterday, the Constitutional Court (TC) declared some of the rules of the decree that regulates medically assisted death as unconstitutional, in response to the request for preventive inspection by the President of the Republic.
The announcement was made in session at the headquarters of the TC, in Lisbon, by the reporting judge, Maria Benedita Urbano, and was later explained, in a statement read by the president, João Caupers. The decision was taken by a majority of seven judges against six.
This was the third decree approved in parliament on euthanasia and the second time that the head of state, in this matter, requested preventive inspection, on January 4th.
Following this announcement, the President of the Republic will have to veto the diploma and return it to the Assembly of the Republic.
According to the reporting judge, Maria Benedita Urbano, the TC ruled for the "unconstitutionality of the rule contained in paragraph f) of article 2.º, in conjunction with the rule contained in number one of article 3" of the decree."
Paragraph f) in question defines in the text "high intensity suffering" as "physical, psychological and spiritual suffering, resulting from a serious and incurable illness or permanent injury of extreme gravity, with great intensity, persistent, continuous or permanent and considered intolerable by the person himself".
Article 3, number one, establishes that "a non-punishable medically assisted death is considered to be that which occurs by decision of the person, of age, whose will is current and reiterated, serious, free and clear, in a situation of suffering of great intensity, with definitive injury of extreme gravity or serious and incurable disease, when practiced or helped by health professionals".
As a result, the judges also found unconstitutional the rules contained in Articles 5, 6 and 7 regarding the "advising physician's opinion", "confirmation by a specialist physician" and "confirmation by a specialist in psychiatry ".
The TC also considered unconstitutional the norms of article 28 of the decree, in the part where it amends articles 134.º number three, 135.º number three and 139.º number two of the Penal Code, articles that respectively regulate "homicide to victim's request", "incitement or assistance to suicide" and "suicide propaganda".
The judges who voted for this decision were: Maria Benedita Urbano (proposed by the PSD), Gonçalo Almeida Ribeiro (PSD), Afonso Patrão (PSD), Lino Rodrigues Ribeiro, José Teles Pereira (PSD), Pedro Machete (vice-president) and the TC president, João Pedro Caupers.
The judges Mariana Canotilho (PS), Joana Fernandes Costa (PS), José João Abrantes (PS), António José da Ascensão Ramos (PS), Assunção Raimundo (PS) and José Eduardo Figueiredo Dias (PSD) voted in favour of the decree.
This is the second time that the Constitutional Court has rejected a decree on the issue of medically assisted death. The first time was in March 2021, when the judges gave reason to the doubts raised by the President regarding the “excessively indeterminate concepts, in the definition of the permission requirements for the decriminalization of medically assisted death, and enshrines the delegation, by the Assembly of the Republic , of matter that it was responsible for densifying".
Since then, the diploma has been politically vetoed by Marcelo Rebelo de Sousa in November 2021 – who asked parliament to clarify the use of different expressions in defining the type of diseases required for resorting to medically assisted death - and a new version, based on initiatives by the PS, BE, IL and PAN, was sent to the President at the beginning of this month, who subsequently asked the TC for preventive inspection.
In a message published on the official website of the Presidency of the Republic on January 4th 2023, Marcelo justified the sending by recalling that "in 2021, the Constitutional Court formulated, in a very expressive way, requirements when appraising the diploma on medically assisted death - which it considered unconstitutional - and that the text of that statute was substantially amended by the Assembly of the Republic”.
Source Lusa - Photo by Manuel Almeida
