Force-feeding a prisoner who went on a hunger strike, with the sole purpose of suppressing the protests! Inhuman and degrading treatment
JUDGMENT
Yakovlyev v. Ukraine 08.12.2022 (app. no. 42010/18)
SUMMARY
The case concerned the applicant’s force-feeding whilst in prison for robbery, after going on hunger
strike in protest against his conditions of detention and the attitude of the prison officials.
Given the relatively short time that had elapsed since the start of his hunger-strike, the lack of any
explanation in the medical report as to the imminent risk to his life, the absence of any need for
hospitalisation, and the fact that he was well enough to attend a domestic court hearing, the Court
was not convinced that it had been medically necessary to force-feed Mr Yakovlyev. The judge had
ordered that he be force-fed without responding to his concerns and without exploring whether
there could be an alternative course of action, and the force-feeding had been carried out in the
absence of any legal regulations on the procedures to be followed. Therefore, the Court was not
convinced that the domestic courts had fulfilled their role of effective procedural safeguard against
abuse. Lastly, an investigation into the real reasons behind the hunger-strike protest and a
meaningful response to their complaints and demands would have been the right way for the State
to examine and manage the situation. As the only response to the inmates’ hunger strike had been
to force-feed them, the Court could not rule out that the aim behind the force-feeding had been to
suppress the protests in Zamkova Prison.
The Court concluded that the State had not properly managed the situation in relation to
Mr Yakovlyev’s hunger strike and had subjected him to excessive physical restraint and pain.
PRINCIPAL FACTS
The applicant, Andriy Yakovlyev, is a Ukrainian national who was born in 1983. His current place of
residence is unknown.
In November 2014 Mr Yakovlyev was found guilty of robbery and was sentenced to nine years’
imprisonment. In early 2015 he began serving his sentence in Zamkova Prison which was a former
monastery dating back to the 17th century, and in which there were ongoing conflicts between the
prison administration and inmates due to poor conditions of detention.
On 22 January 2018 at least ten inmates, including Mr Yakovlyev, went on hunger strike in protest
against those conditions of detention and the attitude of the prison officials. Three days later,
Mr Yakovlyev was placed in a disciplinary cell for two weeks ostensibly for having refused to clean
the walking yard. On 29 January he was examined by the head of the prison’s medical unit and a
doctor from the Izyaslav Primary Health Care Centre, who diagnosed that he was suffering from starvation, lower than normal potassium levels (hypokalaemia), exacerbation of chronic pancreatitis and general poisoning of his system. They felt that he should be force-fed.
In deciding whether to grant the prison governor’s subsequent application for force-feeding, the
Izyaslav Court heard the head of the prison’s medical unit and the doctor, who submitted that the
applicant’s health was deteriorating, and that his health and life were in danger. Despite that, they
stated that he did not require hospitalisation and that force-feeding would lead to his quick
recovery. Mr Yakovlyev, who was present at the court hearing, objected, maintaining that he was
not seriously ill and claiming that there were no legal regulations governing force-feeding
procedures.
The court held that there was sufficient proof that Mr Yakovlyev’s health was at risk and that his life
was in danger. It granted the prison governor’s application for immediate enforcement of forcefeeding on 31 January 2018, and also extended that to three other inmates who had started a hunger strike at the same time as Mr Yakovlyev. A few days later, similar orders were issued in respect of six additional hunger strikers in the prison.
From 1-5 February 2018, Mr Yakovlyev was subjected to force-feeding on a daily basis. He described
having his hands handcuffed behind his back and being held down by several prison officers whilst
one of the prison officers forced a rubber tube down his throat causing severe pain and making him
choke. The process lasted between 30-90 minutes.
On 5 February 2018 the applicant lodged an appeal, stating that the Code on the Execution of
Sentences explicitly prohibited force-feeding of prisoners on hunger strike and that such a measure
could be applied only when there was a risk of permanent damage to their health or if their lives
were in danger. While there was no legally established procedure for force-feeding in Ukraine, one
of the prison officials had specified in the court hearing that the prisoner would be fed a nutritional
liquid mixture down a tube and that, if he resisted, he would be handcuffed and a “mouth-widener”
applied so that the rubber tube could be forced down his throat. Mr Yakovlyev submitted that such
treatment amounted to torture. On 6 February 2018 he ended his hunger strike.
The appellate court rejected his appeal, holding that his arguments that the force-feeding method
was traumatic and not provided for by law were “groundless.”
THE DECISION OF THE COURT…
Article 3
The Court observed that Mr Yakovlyev complained of the lack of any medical necessity for his forcefeeding and of the cruelty of that procedure, alleging that the authorities’ real intention had been to suppress the protests in the prison. It noted that, as soon as Mr Yakovlyev had informed the prison administration of his hunger strike, he had undergone a medical examination. At a further
examination one week later, although the doctor considered that his medical condition was not serious enough for him to be put in hospital, he concluded that he needed to be force-fed as his life was in danger. Despite the lack of further explanation, the Izyaslav Court accepted that conclusion as sufficient grounds for Mr Yakovlyev to be force-fed, even though he was fit enough to participate in
the hearing in person and maintained that there was no serious deterioration to his health.
Given the relatively short time that had elapsed since the beginning of his hunger-strike, the lack of
any explanation in the medical report as regards the imminent risk to his life, the absence of any
need for hospitalisation, and the fact that he had been well enough to attend the court hearing, the
European Court was not convinced that the force-feeding had been medically necessary. Moreover,
the judge had ordered that he be force-fed without responding to his concerns and without
exploring whether there could be an alternative course of action. His submission that there were no
legally established procedures for force-feeding in Ukraine had been left unanswered, and the
appellate court had simply dismissed his arguments as “groundless” and “not worthy of attention”.
Therefore, the Court was not convinced that the domestic courts had fulfilled their role of effective
procedural safeguard against abuse.
Furthermore, the force-feeding had been carried out in the absence of any legal regulations on the
procedures to be followed in such cases. The Ombudsman had noted that “any prison staff member
[could] carry out … force-feeding at his entire discretion”. That and the lack of any evidence as to
how it had indeed been implemented were sufficient for the Court to accept Mr Yakovlyev’s account
of the events, including that he had suffered excessive physical restraint and pain.
Lastly, the Court noted that, as acknowledged by the domestic authorities themselves, inmates of
Zamkova Prison had been raising grievances about violations of their rights by the prison
administration for years, but to no avail. Under such circumstances, the hunger strike started by
Mr Yakovlyev together with other inmates on 22 January 2018 could indeed be regarded as a form
of protest prompted by the lack of other ways of making their demands heard. An investigation into
the real reasons behind the protest and a meaningful response to their complaints and demands
would have been the right way for the State to examine and manage the situation. However, no
such investigation had been carried out and the only response to the inmates’ hunger strike had
been to force-feed them. The Court therefore could not rule out that, as submitted by Mr Yakovlyev,
his force-feeding had in fact been aimed at suppressing the protests in Zamkova Prison.
The Court concluded that the State had not properly managed the situation in relation to
Mr Yakovlyev’s hunger strike and had subjected him to ill-treatment in breach of Article 3 of the
Convention.
Articles 6 § 1 and 8
The Court found that it was not necessary to examine the admissibility and merits of the remaining
complaints.
Just satisfaction (Article 41)
The Court held that Ukraine was to pay the applicant 12,000 euros (EUR) in respect of non-pecuniary
damage.
