The LG Fulda has accused of attempted homicide P, acc. § § 212, 22, 23 I 12 I 25 II of the Criminal Code, sentenced to a prison sentence of nine months and subjected to the enforcement of the sentence. The original co-defendants Mrs. G. has acquitted the district court of law.
The defendant is a for the field of medical law specialist lawyer. According to the findings of the LG Fulda, he advised co-defendant wife GG was the daughter born in 1931 and since October 2002 a vegetative state lying Mrs. K. K was in a nursing home through one line in the abdominal wall, a so-called PEG tube, fed artificially. An improvement of their health status was no longer anticipated.
According sought an oral K in September 2002 expressed desire for such a case, the siblings to the cessation of artificial nutrition in order to allow her mother to die in dignity. G had been ordered by this time carer for her mother K. After conflicts with the nursing home management, by the end 2007 on a compromise under which the home staff should care only about the care activities in the strict sense, while the Children should adjust the patient's own diet on the probe, perform the necessary palliative care and assist her mother in death. After
G had ended on 20/12/2007 the food supply through the probe, the business performance of the entire company had on 21.12.2007 but the home line, the artificial feeding to resume immediately. The children of the K was a home ban on the case threatened that they should declare hereby do not agree. It gave the accused P of G on the same day the Council, the tube through the PEG tube to separate just above the abdominal wall.
G cut minutes later with the assistance of her brother Hose through. had after the home staff discovered this after a few more minutes and turned on the home line, the police, K on the orders of a prosecutor against the wishes of their children was taken to a hospital, where she set a new g-tube and tube feeding was resumed. She died there two weeks later of natural causes due to their disease.
The LG Fulda, the actions of the accused as a jointly with Mrs. G committed attempted murder by positive action, as opposed to mere termination of life-sustaining treatment failure (according to § 13 StGB) are recognized, neither by an alleged agreement by Ms. K still according to the principles of emergency aid, according to. § 32 II StGB, or the state of emergency, acc. § 34 of the Criminal Code was justified. Even on an apologetic state of emergency, acc. § 35 of the Criminal Code could not claim the defendant. Unless it is in a so-called permission error, which is treated according to § 17 StGB, have found that this was for him have been avoided as relevant specialized lawyer. The co-defendants
G has acquitted the district court because it found itself in the face of the legal council of the accused in an unavoidable permission error.
According to the relevant legal consequences of § 17 StGB why she acted without fault.
The 2nd Criminal Division of the Supreme Court has Now the decision on the revision of the defendants, and lifted him acquitted.
The question assumed the conditions under which in cases of actual consent, inability of a patient's will is binding was time of the crime by another is not readily compatible decisions of the Supreme Court has not been clarified. Divergences in the case concerned the liability of so-called living wills and the question of whether the admissibility limits of the termination of life-sustaining treatment on fatal and irreversible progressive disease of the patient or independent of the type and stage of the disease, also capture the requirement of judicial approval of a decision of the legal Facilitator of such a measure.
The legislature has specifically dealt with these questions now by the so-called living will law with effect from 01.09.2009. The Senate could decide, therefore, without being bound by previous decisions of other tribunals.
The LG Fulda in the results correctly assumed that was lawful because the compromise with the home management's decision to abstain from further artificial nutrition and that the announcement by the home management recovery could be seen as an unlawful attack against the self-determination of the patient. In September 2002 expressed consent of the patient, who tested their carers and confirmed, had developed binding and set both by the since 01.09.2009 and after the time of the crime is the current legal justification would violate dar. this now, as is now § 1901 a Section 3 BGB expressly provided, regardless of the type and stage of disease.
contrast, makes the evaluation of the district court not to, the defendant had made through his active involvement in the prevention of the resumption of food offense of attempted manslaughter. By the supervisors, in accordance with the now justified in force provisions of § § 1901 a, 1904 Civil Code, consent of the patient tested not only the termination of treatment simply by making no further food, but also a positive action, the termination or prevention was one of her not or no longer intended treatment.
A is only the externals of action or inaction based distinction of unpunished euthanasia of criminal killing of the patient not the substantive difference between the wing of a euthanasia killing and practices that allow the disease-related death leave with the consent of the affected its course requirements.
Conclusion: On the basis of this case was decided by the Supreme Court over basic questions of euthanasia. In this decision, he first clearly self-determination of patients strengthened. The Supreme Court had left open, however, whether representing the actual criminal act of the P. an active act or an omission. The Senate, however, also state clearly that justifies the consent of the patient is not only a treatment interruption by omission, but also a positive action that serves the termination or prevention of unwanted treatment, because the external appearance of "doing" and "Stop" key to should be the establishment of criminal and non-punishable euthanasia. Also makes clear that a substantive difference between a directed termination of life on criminal homicide and unpunished behavior that the disease-related death leave have run its course, there is.
has in the present decision, the court therefore expanded the conditions permitted passive euthanasia. Criminal liability of direct active euthanasia is not, however, called into question.
BGH Judgement of 25/06/2010 - 2 StR 454/09
Bundesgerichtshof - Press Office Communication No 129/2010
0 comments:
Post a Comment