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ECtHR: body search allowed only in justified cases

The European Court of Human Rights has pronounced the judgment in the case of Milka v. Poland, finding that unreasonable body searches of an inmate had constituted a violation of the European Convention on Human Rights.

“The Helsinki Foundation for Human Rights voiced concerns in respect of such practices already in April 2010. We wrote to the Minister of Justice that the then-applicable regulations on body searches of prisoners may be arbitrarily exercised or abused. Now, this has been confirmed by the European Court of Human Rights”, HFHR lawyer Marcin Wolny says.

Over the period of his incarceration in penitentiary facilities, Sławomir Milka has repeatedly refused to submit to body searches. In consequence, governors of the prisons where the applicant was detained imposed on him a few disciplinary penalties, including a reprimand, the prohibition of receiving food parcels, and placement in solitary confinement. His appeals lodged with a penitentiary court were all rejected.

The ECtHR held that there had been a violation of Article 8 of the ECHR, which provides that everyone has the right to respect for their privacy. The ECtHR said that such an interference with the physical and moral integrity of an individual must be proportionate to the aim pursued. Because of this, personal searches should be performed in an appropriate way, the ECtHR held.

The Strasbourg Court noted that there was no evidence that the applicant could have any dangerous objects on his person. According to the ECtHR, highly invasive or even debasing measures like personal checks or strip searches require a plausible justification presented by the administration of a penitentiary facility.

At the same time, the ECtHR noted the position statement of the Human Rights Defender from December 2014, in which the Ombudsman indicated that inmates were unable to contest Prison Service officers’ decisions to subject them to body searches. In the opinion of the ECtHR, the absence of such an effective remedy substantially hinders domestic enforcement of the requirement that a sufficient justification for personal checks or strip searches must be presented.

“This is an important decision for inmates staying at penitentiary facilities”, Marcin Wolny comments. “It calls for a change in the laws governing personal checks of prisoners. The legislators should eliminate the arbitrariness of a body search and establish a judicial review mechanism administered by penitentiary courts. Furthermore, the proportionality requirement should be more strictly observed in applying the measure. For instance, several types of personal checks can be established, each presenting a different degree of interference with the physical integrity of an individual”, adds Mr Wolny.

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