Derechos a pesar del titular: caso de personas privadas de la libertad en huelga de hambre sometidas a alimentación forzosa

Abstract

This article aims to analyze the collision that exists between the right to protest by persons deprived of liberty and the limitation in its exercise through the actions undertaken by the prison authorities, who are in the position of guarantor by part of the State towards persons deprived of liberty, so that it is proposed to characterize, from the constitutional model of fundamental rights, the two dimensions, one subjective and the other objective, based on the jurisprudence of the Spanish Constitutional Court from the perspective of their protection. in ownership, that is, rights with the owner, without the owner and despite the owner; rights despite the headline is the proposed category to delve into, insofar as this is articulated with the objective and subjective dimension of rights that apply in the specific case of persons deprived of their liberty who undergo hunger strikes, but are forced by the State to feed itself in order to avoid starvation, it is concluded that the limitation in the ownership of fundamental rights towards persons deprived of liberty directly affects the conditioning of their effective enjoyment; It should be noted that this jurisprudential thesis has been assumed by constitutional courts, as well as the Colombian case in the position of guarantor as a mechanism that empowers the State to interrupt the hunger strike of those deprived of liberty when their lives are in imminent risk.