Information Note on the Court’s case-law
Judgment 8.12.2022 [Section V]
Force-feeding of prisoner on hunger strike, in protest against prison treatment, without medical necessity and sufficient procedural safeguards, subjecting him to excessive physical restraint and pain: violation
Facts – On 22 January 2018 the applicant went on hunger strike along with other inmates in protest against their treatment in Zamkova Prison (“the prison”). By an order of the Izyaslav Court, the applicant was subjected to force-feeding daily from 1 February to 5 February 2018. He described the procedure, which he claimed lasted from thirty to ninety minutes, as follows: he was handcuffed with his hands behind his back, restrained by several prison officers, one of whom forcefully inserted a special rubber tube deep into his throat causing him serious pain and making him choke. The applicant unsuccessfully appealed against the order. On 6 February 2018 he stopped his hunger strike.
Law – Article 3:
As in the case of Nevmerzhitsky v. Ukraine, the applicant had not argued that he should have been left without any food or medicine regardless of the possible lethal consequences. Instead, he had complained of the lack of any medical necessity for his force-feeding and the cruelty of that procedure. He had also alleged that the authorities’ true intention had been to suppress the protests in the prison.
There had been no explanation in the medical report, based on a repeated medical examination of the applicant, recommending his force-feeding as being necessary to save his life and health, of the nature and imminence of the risk of the applicant’s continued fasting to his life especially given the relatively short time that had passed since the beginning of the hunger-strike and the absence of any need for his hospitalisation. The Izyaslav Court had accepted the medical report’s conclusion as sufficient grounds for ordering the applicant’s force-feeding, despite his satisfactory health condition allowing him to attend the court hearing and the applicant’s arguments in this respect. Consequently, the medical necessity for his force-feeding had not been convincingly shown to exist.
Furthermore, the Izyaslav Court had not duly responded to the applicant’s submissions that, albeit generally weaker, he had felt well and that he had not understood why the doctors thought otherwise to the point of seeking his force-feeding. It had not explored alternative means to avert the alleged risk to the applicant’s health or commented on his submission about the absence of any legally established procedures for force-feeding in Ukraine. The appellate court had simply dismissed the applicant’s arguments as “groundless” and “not worthy of attention”. That being so, the Court had doubts as to the effectiveness of the judicial control as a procedural safeguard against abuse in the circumstances of the present case. Moreover, the applicant’s force-feeding had been carried out in the absence of any legal regulations on the procedures to be followed in such cases, a lacuna that had been observed by the Parliamentary Commissioner for Human Rights of Ukraine. The existence of unfettered discretion for the prison staff in carrying out the applicant’s force-feeding, together with the lack of any evidence as to how it had actually taken place, were sufficient for the Court to accept the applicant’s account of the events, according to which he had suffered excessive physical restraint and pain.
Lastly, inmates of the prison had been raising arguable grievances about violations of their rights by the prison administration for years, but in vain. Under such circumstances, the hunger strike that had been started by the applicant, together with other inmates, could indeed be regarded as a form of protest prompted by the lack of other ways of making their demands heard. Launching an investigation aimed at ascertaining the true intention of and real reasons for the inmates’ protest, as well as ensuring a meaningful response to their complaints and demands, had been essential for the proper examination and management of the situation by the State. However, this had not been done and the only response to the inmates’ hunger strike had been their force-feeding. It could not therefore be ruled out that the applicant’s force-feeding had been in fact aimed at suppressing the protests in the prison.
Accordingly, the State had not properly managed the situation in relation to the applicant’s hunger strike and had subjected him to ill-treatment.
Conclusion: violation (unanimously).
Article 41: EUR 12,000 in respect of non-pecuniary damage.
(See also Nevmerzhitsky v. Ukraine, 54825/00, 5 April 2005, Legal Summary; Ciorap v. Moldova, 12066/02, 19 June 2007, Legal Summary)