ABSTRACT
In the presence of the detainees who activate fasting as a form of protest: quid juris by the legal system?
The theme raises the need for a balance between the interest in life and physical integrity, on the one hand, and the freedom of self-determination, on the other, which must be regulated according to the same plan which concerns either the free citizen or the prisoner.
In Italy, there have been various bills to regulate the hypothesis of enforcing the prisoner’s feeding, while some judicial decisions have admitted, in certain circumstances and in compliance with specific guarantees, the possibility of the prison administration to put such coercive treatment into practice. In Israel, the force-feeding of detainees who are on hunger strikes was provided by law in July 2015. The law allows penitentiary authorities to apply for a permit to feed a prisoner at court if a doctor recommends it and there is an imminent danger of serious deterioration of the prisoner's health. In the USA we can find a renowned case of the Supreme Court of Connecticut decision in the case of Commissioner of Corrections v. Coleman from 21 May 2009, that issued the injunction authorizing the prison authorities to forcibly feed a prisoner on hunger strike. The case was opposed by several leading bioethicists and doctors of the countries criticizing the state penitentiary system.
Moreover, the European Court of Human Rights (ECtHR) has repeatedly recognized the prevalence of the State’s obligation to protect the integrity of the detained person, as well as force-feeding should not always be considered illegitimate ab initio, art. 3 European Convention on Human Rights (ECHR), in some cases, requires the State to protect the physical integrity of restricted persons provided there is a proven medical need for coercive intervention and in accordance with the procedures laid down by the legislator (Nevmerjitsky v. Ukraine, 5 April 2015 and Ciorap v. Moldova, 19 June 2007).
