CEDH · CASELAW;CLIN;ENG — 19 juin 2007

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Moldova - 12066/02 Judgment 19.6.2007 [Section IV] Article 3 Inhuman punishment Torture Force-feeding of prisoner on hunger strike in protest against prison conditions: violation   Article 6 Civil proceedings Article 6-1 Access to court Wrongful refusal by the Supreme Court to hear, for failure to pay the prescribed fee, an appeal in a case of alleged torture: violation   Facts : The applicant, a second degree invalid diagnosed as suffering from “mosaic schizophrenia”, complained of the conditions in a remand centre where he was serving a prison sentence for fraud-related offences while awaiting trial on other charges. His complaints concerned overcrowding, a shortage of beds, rodent and parasite infestation, damp, a lack of proper ventilation or access to daylight, restricted electricity and water supplies, and a poor diet. He periodically went on hunger-strike to protest about the conditions and in 1994 and 1995 spent periods of up to 10 days in solitary confinement, apparently as punishment for his refusal to take food. At the beginning of August 2001 he went on a fresh hunger-strike to protest against violations of his and his family's rights. Two weeks later he cut his veins and attempted to set fire to himself. He was kept under medical supervision. On 24 August a doctor found his health to have deteriorated and ordered force-feeding. From then until 10 September he was force-fed a total of seven times. On each occasion the doctors noted that his health was “relatively satisfactory” or “satisfactory” and he was apparently fit enough to make two court appearances. He ended his hunger‑strike on 4 October 2001. In October 2001 he lodged a complaint about the pain and humiliation caused by the force-feeding, a process he described as follows. He was always handcuffed, despite never physically resisting. The prison staff forced him to open his mouth by pulling his hair, gripping his neck and stepping on his feet until he could no longer bear the pain. His mouth was then fixed in an open position by means of a metal mouth‑widener and his tongue was pulled out of his mouth with a pair of metal tongs. A hard tube was inserted as far as his stomach through which liquidised food was introduced, provoking, on some occasions, sharp pain. When the metal holder was removed from his mouth, he bled, could not feel his tongue and was unable to speak. The instruments were not fitted with single-use, soft protection layers to prevent pain and infection. As a result of the process, one of his teeth had been broken and he had contracted an abdominal infection. The applicant's claims were ultimately rejected, the district court finding that his force-feeding was based on medical necessity and that handcuffing and other restrictive measures had been necessary for his own protection. The applicant's cassation appeal lodged with the Supreme Court of Justice was not examined by that court because he had failed to pay a (3 EUR) court fee. The applicant also complained that letters addressed to him personally from law-enforcement agencies, human-rights organisations and even a psychiatric hospital had been censored by the prison administration and of severe restrictions on visits from his relatives and girlfriend, which were conducted through a glass partition, making privacy and physical contact impossible. The Supreme Court found that the partition was justified for security reasons. Law : Article   3 – (a)     Conditions of detention – The conditions in which the applicant had been held for a prolonged period were inhuman, in particular as a result of extreme overcrowding, unsanitary conditions and the low quantity and quality of food. Conclusion : violation (unanimously). (b)     Force-feeding – A measure which was of therapeutic necessity from the point of view of established principles of medicine could not, in principle, be regarded as inhuman and degrading. The same could be said about force-feeding when aimed at saving the life of a person on hunger-strike. However, the Court had to be satisfied that (i) medical necessity had been convincingly shown, (ii) the procedural guarantees had been complied with and (iii) the manner in which the force-feeding was carried out had not attained the proscribed level of severity. (i) medical necessity – The applicant had been on hunger-strikes in the past, without being force-fed or considered to be in danger. Indeed, the punishment he had received as a result had included two 10-day periods of solitary confinement, which suggested that the force-feeding was not aimed at protecting his life but rather at discouraging further protest. Various inconsistencies were noted in the Government's case. For instance, although the applicant's condition had been considered serious enough to warrant force-feeding, he had been allowed to attend court hearings and deemed fit to continue his hunger strike. There was no evidence of medical tests being carried out before the initiation of force feeding. The applicant's health had repeatedly been assessed as “relatively satisfactory” or even “satisfactory” by the duty doctor. In sum, there was no medical evidence that the applicant's life or health had been in serious danger and sufficient grounds to suggest that his force-feeding was in fact aimed at discouraging him from continuing his protest. (ii) procedural guarantees – Basic procedural safeguards prescribed by domestic law, such as clarifying the reasons for starting and ending force-feeding and noting the composition and quantity of food administered, had not been respected. (iii) the manner in which the force-feeding was carried out – The Court was struck by the manner of the force-feeding, including the unchallenged, mandatory handcuffing regardless of any resistance and the severe pain caused by metal instruments to force the applicant to open his mouth and pull out his tongue. Less intrusive alternatives, such as an intravenous drip, had not even been considered, despite the applicant's express request. In short, the applicant's repeated force-feeding had not been prompted by valid medical reasons but rather with the aim of forcing him to stop his protest. It had been performed in a manner which unnecessarily exposed him to great physical pain and humiliation. Accordingly, it could only be considered as torture. Conclusion : violation (unanimously). Article   6 § 1 – The applicant was denied access to a court as a result of the Supreme Court's refusal, because of his failure to pay the court fee, to examine his complaint regarding the force-feeding. In view of the serious nature of his claim (torture), he should have been exempted from paying the fee, regardless of his ability to pay. Conclusion : violation (unanimously). Article   8 – (a)     Correspondence – There was clear evidence that at least some of the applicant's correspondence had been opened by the prison administration. However, the applicant was not given access to the relevant prison rules until December 2003 and the Government had not submitted any evidence to show that the court orders required by domestic law had been obtained. The opening of the correspondence was not, therefore, “prescribed by law”. Conclusion : violation (unanimously). (b)     Private and family life – The very general wording of the only provision that could be considered as a legal basis for installing a glass partition in the cubicle for prison visits gave a very wide discretion to the authorities in individual remand centres. That fact, coupled with the failure to publish the applicable prison rules, strongly suggested that the interference with the applicant's rights was not in accordance with the law. However, it was unnecessary to take a definitive view on that issue as the interference was, in any event, not “necessary in a democratic society”. The domestic courts had confined themselves to a perceived general need to preserve the safety of detainees and visitors. However, the applicant was accused of fraud and allowing him to meet his visitors would not have created a security risk. That conclusion was reinforced by the fact that he was in fact allowed such visits subsequently. Relevant also was the effect on the applicant of the lack of physical contact with his visitors for a lengthy period and of a relationship maintained solely by correspondence and communication through a glass partition. In the absence of any demonstrated need for such far-reaching restrictions, the authorities had failed to strike a fair balance between the aims relied on and the applicant's rights. Conclusion : violation (unanimously). Article   41 – EUR 20,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes