Suicidio asistido y libre desarrollo de la personalidad en la República Federal de Alemania

Abstract

This paper analyses the legal controversy aroused in the Federal Republic of Germany around the prohibition of commercial encouragement of suicide. In its first section, the legal framework for end-of-life decisions is briefly explained. To this end, the work emphasises the contentious criminal act in force in the country since 2015 and reflects the state of the art according to the main scientific literature in this regard. The second part analyses the recent ruling of the German Federal Constitutional Court
that declares unconstitutional the above-mentioned prohibition of commercial encouragement of suicide. In particular, this section looks into the construction of a right to a self-determined death carried out by the final arbiter of the German Fundamental Law. Thirdly and lastly, the paper
draws two conclusions from the prior analysis. The first one is of functional
nature and, since the German Federal Constitutional Court did not exclude such a possibility, refers to the feasibility of alternative concepts of legislation. The second corollary has a dogmatic nature and consists of assessing the significant omission of the right to life in the argumentation of the German highest court.

Summary:
1. The prohibition of commercial encouragement of suicide in the Federal Republic of Germany. 1.1. A brief reference to German criminal regulation in relation to euthanasia and assisted suicide. 1.2. The scientific
controversy over § 217 StGB. 2. The right to a self-determined death in the Federal Republic of Germany. 2.1. The scope of protection of the right to free development of personality. 2.2. The limits of the right to free development of personality. 2.2.1. The justification for interferences (I): legitimate purpose, adequacy and necessity. 2.2.2. The justification for interferences (II): adequacy or proportionality in the strict sense. 3. Two corollaries by way of conclusion. 3.1 Functional correction and discretion of the legislator. 3.2. The Bundesverfassungsgericht and the right to life.