The case of the prisoners staging hunger strike: What are the obligations of the state?

Analysis

Radio Free Europe

The accused Shaig Kazimov, who was on hunger strike for 62 days, died in the Baku Investigation Detention Center No. 1. He was detained by the police on May 24 and found guilty of illegal drug trafficking. The prisoner, who was on hunger strike demanding an objective consideration of his case, died on July 30 after losing 66 kilograms of weight.

Shaig Kazimov's mother Narmina Alakbarova claims that her son was tortured. The complainant noted that after her son was transferred to the detention center, he called her and said that he was slandered and that there was no healthy place in his body. Two days after this call, Shaig tried to commit suicide by cutting his veins. Narmina Alakbarova noted that she appealed to the President, Vice-President, Prosecutor General, and Ombudsman in the last two months. After the complaints, doctors were sent, and the doctors told them that his son did not stage a hunger strike.

Elshad Hajiyev, acting as the head of the press service of the Ministry of Internal Affairs, told the press that the allegations were groundless. According to him, the words of the mother are defensive and can be investigated if appealed. The Penitentiary Service said that they would report on the issue after investigation.

Tribunat analyzed the obligations of the state regarding the prisoners who died as a result of hunger strike.

Azerbaijan has joined a number of international and regional documents related to improving the conditions of detention of prisoners and protecting their health and has undertaken to implement the obligations arising from those documents. Examples of these documents include the European Convention on Human Rights and the European Prison Rules.

Chapter 3 of the European Prison Rules is devoted to health protection and health care. Article 39.1 of the Rules states that prison authorities shall safeguard the health of all prisoners in their care.

Furthermore, the rules of conduct for prisoners are defined in the manual on the conditions of detention of prisoners who refuse to eat in penitentiary institutions, as well as the conditions of detention of arrested persons and their forced feeding.

Regarding deaths due to hunger strikes, the precedent judgments of the European Court of Human Rights (hereafter ECtHR) defined some points related to the obligation of the state to protect and not to harm under Articles 2 and 3 of the Convention.

In Renolde v. France, the ECtHR held that Article 2 may imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual from another individual or, in particular circumstances, from himself. There are general measures and precautions that will be available to diminish the opportunities for self-harm, without infringing personal autonomy. Whether any more stringent measures are necessary in respect of a prisoner and whether it is reasonable to apply them will depend on the circumstances of the case (Renolde v. France, § 81 and § 83).

The Court considers that in the case of patients who are hospitalised following a judicial order, and therefore involuntarily, as the specific measures, the Court, in its own assessment, may apply a stricter standard of scrutiny (Fernandes de Oliveira v. Portugal [GC], § 124).

In similar judgments of the ECtHR regarding prisoners on hunger strike, it is stated that “force-feeding of a person contains elements of humiliation which may, in certain circumstances, be considered treatment prohibited by Article 3 of the Convention. But ... if a prisoner goes on hunger strike, this may inevitably lead to a conflict between the individual's right to physical integrity and the positive obligation of the State under Article 2 of the Convention – a conflict which the Convention does not resolve”.

At the same time, the Court notes that a measure which is of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading. The same can be said about force-feeding that is aimed at saving the life of a particular detainee who consciously refuses to take food.

However, the Convention organs must nevertheless satisfy themselves that the medical necessity has been convincingly shown to exist. Furthermore, the Court must ascertain that the procedural guarantees for the decision to force-feed are complied with. Moreover, the manner in which the applicant is subjected to force-feeding during the hunger strike shall not trespass the threshold of a minimum level of severity envisaged by the Court's case law under Article 3 of the Convention (Nevmerzhitsky v. Ukraine, p. 94).

That is, there is a conflict with Articles 2 and 3 of the Convention, which define the negative obligation of the state, in cases of force-feeding during hunger strikes. As in the ECtHR judgment mentioned above, the Convention does not resolve this conflict. Only in these cases, a more serious investigation is applied, it is checked whether the internal standards regarding force-feeding have been followed and whether extra physical force has been used.

This was also the main issue in the case of Horoz v. Turkey (2009). It was related to the cases of prisoners taking only sugar and vitamin water and staging a hunger strike in protest of being transferred from a dormitory-type prison to a cell-type prison. As a result of the action, the prisoner fell into a coma and died. Although the prisoner's health deteriorated due to the hunger strike, the authorities refused to release him. This refusal is based on the convict's refusal of obvious medical intervention. However, when the need for hospitalization arose several times, the prisoner was admitted to the hospital even though he refused any help. In the end, the prisoner fell into a coma and died. This does not mean that the state remains passive (negative obligation) but it shows that the state must be able to prove that it took steps to protect the prisoner's life (positive obligation) without interfering with personal liberties. In other words, the authorities have a duty of care, just as in cases of suicide prevention. Specifically, in the case of Horoz v. Turkey, the state was able to prove that it fulfilled these obligations: the prison doctor checked the condition of the prisoner 11 times, gave him vitamins, and he was admitted to the hospital and emergency departments. But another question arises: what would happen if the prison force-fed the prisoner? The ECtHR has made it clear that force-feeding without medical necessity is a violation of Article 3. So at some point, force-feeding may have been a medical decision. In such situations, when a person's life is in imminent danger, states may still be advised to engage in forced feeding.

In the case of Ciorap v. Moldova, the Court concluded that "the repeated force-feeding of the applicant was not based on valid medical reasons, was intended to force the applicant to stop protesting, and was carried out in a manner that unnecessarily subjected him to great physical pain and humiliation, which can only be considered as torture."

In a concrete example, according to the claim of the mother, who is the legal heir of Shaig Kazimov, after the doctor’s examination, it was said that her son was not on hunger strike. Shaig was admitted to the hospital on the last day and died there. Furthermore, it is not clear whether there were any medical interventions during the period when he lost 66 kilograms. The penitentiary service has not made a statement about it.

According to the Instructions on conditions of detention of convicts who refuse to eat in penitentiary institutions, as well as arrested persons and their force-feeding, before force-feeding, the medical worker informs the person who refuses to eat that life-threatening changes have begun in his body and explains the importance of eating. If a person refuses food and resists force-feeding, then his movement is restricted in accordance with the rules of the internal regime. At the same time, the person being forcibly fed is placed in an appropriate position to carry out the feeding procedure. Force-feeding of prisoners and detained persons is carried out by a small medical team with the direct participation and appointment of a doctor through a probe (or with medicines), as well as with the participation of representatives of the prison authorities.

However, there is no information on whether or not force-feeding was applied in the mentioned case and on the implementation of the provisions of this Instruction.

Tribunat concludes that the state's statements regarding Shaig Kazimov are not sufficient, and the government must prove that it has fulfilled its positive obligation properly.