European Court of Human Rights

Information Note on the Court’s case-law No. 161

March 2013

Rappaz v. Switzerland (dec.) - 73175/10

Decision 26.3.2013 [Section II] See: [2013] ECHR 508 (French Text)

Article 2

Positive obligations

Decision to force-feed rather than release prisoner on hunger strike: inadmissible

 

Article 3

Degrading treatment

Inhuman treatment

Possible force-feeding of prisoner on hunger strike in protest at his detention: inadmissible

 

Facts - In 2000 the applicant was sentenced to sixteen months’ imprisonment for drug trafficking. He began a hunger strike in prison. He was released for thirty days and then returned to prison and finished serving his sentence without major incident. In 2008 the Cantonal Court sentenced the applicant to five years and eight months’ imprisonment for various offences. The day he began serving his sentence in March 2010 he embarked on a hunger strike, seeking the legalisation of cannabis use and protesting against his sentence, which he considered excessively harsh. Arguing that his health was suffering, the applicant applied to be released. On 26 August 2010 the Federal Court rejected his application, finding that force-feeding was a viable alternative to release. In December 2010 the applicant ended his hunger strike without having been force-fed.

Law - Article 2: Where a prisoner went on hunger strike, the potential consequences for his or her state of health would not entail a violation of the Convention provided that the national authorities had duly examined and dealt with the situation. This was particularly the case where the person concerned continued to refuse food and drink despite the deterioration in his or her health. In the present case the administrative and judicial authorities concerned had immediately recognised the risk which the hunger strike posed to the applicant’s health and even his life and had taken the measures they deemed necessary in order to avert that risk. Thus, the applicant had first been released for fifteen days. He had subsequently been redetained and after resuming his hunger strike had been transferred to hospital to serve his sentence under medical supervision, before being placed under house arrest. When he was imprisoned again following the Federal Court judgment of 26 August 2010 he had again refused food and drink and had been transferred once more to hospital. The applicant’s condition had started to give cause for alarm in October 2010. By that time, he had no longer been in prison but had been admitted to the prison wing of the hospital. There he had been under the constant supervision of a medical team who had kept the authorities informed of any change in the situation and had declared their willingness to “make [the applicant] as comfortable as possible” should he persist with his decision to end his life. Furthermore, in order to prevent further deterioration of the applicant’s health, the administrative authority, followed by the Cantonal Court, had ordered that he be force-fed. When the doctor treating the applicant had refused to perform such a step against his patient’s will, the Cantonal Court had even gone so far as to serve a formal injunction on him in person, with which he had to comply or face prosecution. It could therefore not be said that the national authorities had not duly examined and dealt with the situation as required by Article 2 of the Convention, nor was their intention to protect the applicant’s life open to doubt. Moreover, it had in no sense been established that, while in hospital, the applicant had not received the same care he would have been given had he embarked on a hunger strike outside prison.

Conclusion: inadmissible (manifestly ill-founded).

Article 3: With regard to the decision to force-feed the applicant, it was not established that it had actually been implemented. As to the issue of medical necessity, the order to force-feed the applicant had been given when his state of health had begun to give cause for alarm, and was to be carried out by a qualified medical team in a hospital setting which was likely to be equipped to deal with such situations; the only objections raised by the doctors had been of an ethical rather than a medical nature. As far as the existence of procedural safeguards was concerned, the regulations governing the situation of prisoners on hunger strike did not lay down specific provisions concerning force-feeding. However, the decisions ordering the doctor treating the applicant to begin force-feeding him had been based on the Federal Court judgment of 26 August 2010, which had examined the issue in depth and had established several principles which henceforth represented the state of Swiss law in this sphere. The Federal Court had also considered the general law and order clause laid down in the Federal Constitution to provide a sufficient legal basis, allowing as it did restrictions to be placed on fundamental rights by means other than legislation in the event of a serious, imminent and direct threat. The Court had already held that a similar provision satisfied the relevant requirements of foreseeability, clarity and proportionality. Accordingly, even if the decision to force-feed the applicant had been implemented - if he had not ended his hunger strike - there were no grounds for asserting a priori that this would have resulted in treatment exceeding the minimum threshold of severity required by Article 3 of the Convention. Any such assertion at that juncture would be mere speculation.

Conclusion: inadmissible (manifestly ill-founded).

(See also Horoz v. Turkey, no. 1639/03, 31 March 2009, Information Note no. 117; and Nevmerzhitsky v. Ukraine, no. 54825/00, 5 April 2005, Information Note no. 74)

 

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