Suicide kits sent by post: who is legally responsible?

The case raises questions that go beyond the criminal proceedings against Law himself, and which are also legally relevant for the Netherlands. Martin Buijsen, Professor of Health Law at Erasmus School of Law, spoke about this case on RTL Nieuws and offers legal insight. For how does the law apply when assisted suicide takes on an international dimension?

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Suicide is not a criminal offence, but assisting in suicide sometimes is

To answer that question, it is worth first looking at what Dutch criminal law says about suicide and aiding it. Suicide is not a criminal offence in the Netherlands. Anyone who takes their own life is not breaking the law. However, anyone who aids them in doing so may well be. Article 294 of the Criminal Code distinguishes between two forms of involvement. On the one hand, incitement to suicide; on the other, providing assistance or supplying the means to do so. These acts are only criminal offences if death actually ensues. Buijsen explains why this also applies to seemingly ordinary products. “Whether or not a substance is legally available for sale is not really relevant.”

Suppose someone sells a preservative for general use. That is legal. But if that same person sells the substance with the intention of assisting suicide, provides accompanying instructions, and the buyer actually dies, then this constitutes the criminal offence of assisting suicide. The legality of the product itself does not alter this. The court is now applying precisely this framework to the Law case. Giving advice on suicide, including online, does not, incidentally, fall within the scope of criminal law. In principle, this is not a criminal offence, according to Buijsen. The line is crossed as soon as someone actually supplies the means.

A case of international scope

 What makes the Law case particularly complex is its international dimension. The internet and postal services pay no heed to national borders. Law operated from Canada, but the consequences of his actions were felt in dozens of countries simultaneously. 

 The Netherlands can exercise jurisdiction over a criminal offence when its consequences occur on Dutch territory. But prosecuting a suspect who is abroad requires international cooperation, extradition and mutual legal assistance. Although the Netherlands does have an extradition treaty with Canada, this does not, in practice, make prosecution from abroad any easier.

Buijsen takes a pragmatic view on this. When it comes to assisted suicide, international cooperation between states is virtually non-existent. “It doesn’t exist,” he says. The fact that Canada was ultimately only able to convict Law for fourteen cases in the province of Ontario, whilst his parcels were sent to more than forty countries, illustrates just how limited the options are once national borders come into play. 

 Online platforms can also play a legal role. Law used digital sales platforms and forums to organise his trade. Where a platform plays a supporting role in the commission of a crime and also had the intention to do so, complicity may be an issue. Platforms must therefore ensure that their services do not contribute to criminal offences.

Self-determination and the protection of vulnerable people

Behind the legal complexity lies a fundamental tension. The right to self-determination, including the right to decide for oneself on the end of one’s life, has been recognised by the European Court of Human Rights as part of the right to respect for private life under Article 8 of the European Convention on Human Rights. States may restrict this right, and due to the significant differences in opinion among them, the Court allows Member States considerable discretion in this regard. 

 But that freedom does not come without a duty. For people who are not fully capable of making an informed choice about the end of their lives, states have a positive obligation under Article 2 of that Convention, the right to life. Law demonstrably targeted young people. The youngest known client was seventeen years old. Buijsen emphasises that the desire to decriminalise assisted suicide must be achieved through democratic means. “If you want to decriminalise euthanasia entirely, then you try to achieve that politically. Not by systematically breaking the law.”

A structural issue  

The Kenneth Law case demonstrates that national legislation on suicide and assisted suicide was designed for a world with borders, whereas the internet and postal services know no such boundaries. Information and resources are readily available worldwide, regardless of what national legislators decide. At the same time, there is a lack of international agreements to tackle this effectively. Buijsen is clear on this point: “Complete protection is impossible. Whether or not assisted suicide is permitted, the state will always have to protect vulnerable people.” It is precisely here that the structural issue lies: how can states protect people when the enforcement of national standards has become dependent on international cooperation that, in practice, is virtually non-existent?