Ethical and Legal Aspects of Acceptance of Decisions by the Investigating Judge and Court on Forced Feeding of Convicts and Persons Kept in Custody

Abstract

The article deals with the ethical and legal issues of decision- making by the investigating judge and the court on the forced feeding of a convict and a person in custody. It is noted that given that the court decision on forced feeding of convicts or persons in custody is related to medical intervention, its adoption and implementation is not only in the realm of law, but also of legal and medical ethics. The article attempts to simultaneously highlight and analyze international ethical, medical and legal norms and principles, as well as the legal positions of the ECtHR on the issue of forced feeding of a convicted person or a person in custody. The criteria for compliance of forced feeding with the requirements of Article 3 of the Convention on the Protection of Human Rights and Fundamental Freedoms were analyzed, namely: establishing the medical necessity of the forced feeding procedure, compliance with procedural guarantees and the method of carrying out the procedure should not exceed the standard of the minimum level of cruelty established in the practice of the Court. It was concluded that international medical associations recognize the forced feeding of a person who directly and deliberately refused food as unjustified with certain exceptions: for example, if the patient is no longer able to make decisions on his own and, at the same time, has not left any instructions for this case. Given the fact that Ukraine belongs to the list of states in which forced feeding of a person whose freedom is restricted is allowed at the legislative level, it is necessary to develop and approve the procedure for carrying out forced feeding in the event that the petition is granted by the court. An analysis of domestic judicial practice on the issue of force-feeding a convict or a person in custody was carried out. It was concluded that the vast majority of relevant petitions (submissions) are satisfied by the courts. At the same time, as a rule, courts in such decisions do not assess the necessity of forced feeding in accordance with the criteria of the European Court of Human Rights, but limit themselves to indicating that, according to the practice of the Court, such feeding is not considered treatment that degrades human dignity. Attention is drawn to the fact that the current legislation of Ukraine defines the procedural procedure for forced feeding exclusively in relation to the convicted. If a suspect or accused in custody refuses to eat for a long time, which, in turn, creates an obvious threat to his life, then in this case there is no legal mechanism for applying forced feeding to him.