Chapter 8 • International Legal Standards for the Protection of Persons Deprived of Their Liberty
State Responsibility for Prisoners on Hunger Strike
The Case of R., S., A. and C. v. Portugal (cont.d)
The deadlock was resolved on the twenty-sixth day of applicant R.’s hunger strike,
“when the prison authorities allowed the applicants to be visited by a team consisting
of a doctor appointed by the Medical Council, the prison doctor and a doctor of their
choice”. The team asked that the applicants be “hospitalised as a matter of urgency”,
which was done a few days later.100 The Commission’s reasoning in this case deserves
to be quoted in full:
“18. As the Commission has already emphasised, the Convention
requires that the prison authorities, with due regard to the ordinary
and reasonable requirements of imprisonment, exercise their
custodial authority to safeguard the health and well-being of all
prisoners, including those engaged in protest, in so far as that may be
possible in the circumstances. ... In situations of serious deadlock,
the public authorities must not entrench themselves in an
inflexible approach aimed more at punishing offenders against
prison discipline than at exploring ways of resolving the
deadlock... .
19. In the instant case, regrettable as it may be that the applicants
received no medical care for a long period during their hunger strike,
the fact remains that they were themselves to a large extent
responsible for this situation. In respecting the applicants’ refusal to
be examined by certain doctors, whose competence could not be
disputed, the Government acted in a manner about which the
applicants cannot complain. The Commission is unable to conclude
from the specific circumstances of these cases that the Portuguese
authorities showed inflexibility and allowed the applicants’ situation
to deteriorate to the extent that they were victims of inhuman
treatment or torture violating article 3 of the Convention.”101
The reasoning in the Portuguese case was based on the McFeeley case, which
arose in the dramatic context of Northern Ireland. The applicants in this case wanted to
be recognized as political prisoners and therefore, inter alia, refused to wear prison
clothes and work in prison. In return, they were given multiple punishments including
periods of cellular isolation. In that particular case the Commission stated that it
“... must express its concern at the inflexible approach of the State
authorities which has been concerned more to punish offenders against
prison discipline than to explore ways of resolving such a serious deadlock.
Furthermore, the Commission is of the view that, for humanitarian
reasons, efforts should have been made by the authorities to ensure that
the applicants could avail of certain facilities such as taking regular exercise
100 Ibid., p. 208, para. 17.
101 Ibid., paras. 18-19; emphasis added.
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Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers
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