Conseil d’État
6 juin 2013
Facts
The non-governmental organisation “International Prison Observatory” (Observatoire International des Prisons) requested from the judge to suspend the execution of an instruction established by the head of a prison. This instruction organised, for a period of three months, a system of systematic full-body searches for all prisoners leaving the visiting rooms.
Complaint
The NGO complained that this instruction violated the constitutional principles of respect for human dignity and the right not to be exposed to inhuman and degrading treatment, as guaranteed by Article 3 of the Convention.
Court’s ruling
The Council of State first explained that body searches should not be systematic and should be justified on the grounds provided by the law, and that full-body searches should be subsidiary to searches by palpation or the use of electronic detection devices. The Court accepted that full-body searches could be justified by the necessity to maintain public order and the practical difficulties faced by the prison, for example in this case the lack of electronic detection devices in the visiting rooms due to work maintenance in the prison. However, the Court found that these full-body searches should be organised in a manner that is adapted to the personality of the prisoners. This means that the head of prison should take into account the behaviour of each prisoner, his/her previous actions and the circumstances of his/her encounter with visitors before deciding to pursue a full-body search. Therefore, the instruction constituted, due to its systematic nature, a serious violation of the fundamental freedoms and rights, including Article 3 of the Convention.