Yakovlyev v. Ukraine (Application no. 42010/18)
A selection of key paragraphs can be found below the judgement.CASE OF YAKOVLYEV v. UKRAINE
47. All these elements – namely the lack of any explanation in the medical report in question of the nature and imminence – especially given the relatively short time passed since the beginning of the hunger-strike – of the risk of the applicant’s continued fasting to his life, the absence of any need for his hospitalisation, and his satisfactory health condition allowing him to attend the court hearing – indicate that the medical necessity for the applicant’s force-feeding was not convincingly shown to exist (compare Nevmerzhitsky, § 96, and Ciorap, § 81, both cited above).
48. Although the applicant insisted in his submissions before the Izyaslav Court that, apart from some general weakening, he felt well and that he did not understand what made the doctors think otherwise to the point of seeking his force-feeding, the judge ordered the applicant’s force-feeding without having duly responded to that legitimate concern (see paragraphs 17 and 18 above) and without having explored alternative means to avert the alleged risk to the applicant’s health. Nor did the Izyaslav Court comment on the applicant’s submission about the absence of any legally established procedures for force-feeding in Ukraine. As regards the appellate court, it simply dismissed the applicant’s arguments as “groundless” and “not worthy of attention” (see paragraphs 25 and 26 above). That being so, the Court has doubts as to the effectiveness of the judicial control as a procedural safeguard against abuse in the circumstances of the present case.
49. Furthermore, the applicant’s force-feeding was carried out in the absence of any legal regulations on the procedures to be followed in such cases. This lacuna was observed, in particular, by the Ombudsman, who noted that “any prison staff member [could] carry out … force-feeding at his entire discretion” (see paragraph 28 above). The existence of such unfettered discretion for the staff of Zamkova Prison in carrying out the applicant’s force-feeding, together with the lack of any evidence as to how it actually took place, are sufficient for the Court to accept the applicant’s account of the events, according to which he suffered excessive physical restraint and pain (see paragraph 21 above).
50. Lastly, the Court notes that, as acknowledged by the domestic authorities themselves, inmates of Zamkova Prison had been raising arguable grievances about violations of their rights by the prison administration for years, but in vain (see paragraphs 8 and 28 above). Under such circumstances, the hunger strike started by the applicant, 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. 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, would have been essential for the proper examination and management of the situation by the State (see, mutatis mutandis, Makharadze and Sikharulidze, § 83, and Ünsal and Timtik, § 37, both cited above). However, no such investigation was apparently carried out and the only response to the inmates’ hunger strike was their force-feeding. The Court therefore cannot rule out that, as submitted by the applicant, his force-feeding was in fact aimed at suppressing the protests in Zamkova Prison (compare Ciorap, cited above, § 83).
51. In the light of all the foregoing considerations, the Court concludes that the State did not properly manage the situation in relation to the applicant’s hunger strike and subjected him to ill-treatment in breach of Article 3 of the Convention. There has therefore been a violation of that provision.