Dejnek v. Poland: Strip Searches of a Prisoner

The applicant alleged, in particular, that the strip searches to which he had been subjected while in detention at Lublin Remand Centre had been in breach of Articles 3 and 8 of the Convention.

6.  On 10 October 2008 the applicant was arrested on suspicion of the attempted murder of his brother, K.D.

7.  On 25 March 2009 a bill of indictment against the applicant was lodged with the Lublin Regional Court.

8.  On 12 December 2011 the Lublin Regional Court convicted the applicant and sentenced him to 10 years’ imprisonment.

9.  The applicant appealed.

10.  On 21 August 2012 the Lublin Court of Appeal upheld the conviction.

11.  On 7 December 2012 the applicant’s lawyer lodged a cassation appeal with the Supreme Court.

12.  On 10 June 2013 the Supreme Court dismissed the cassation appeal as manifestly ill-founded.

13.  Following his arrest, on 11 October 2008 the applicant was remanded in custody in the Lublin Remand Centre.

14.  On 22 August 2009 the prison authorities discovered 132 pills of psychoactive drugs hidden in the applicant’s clothes.

15.  On 26 August 2009 the applicant encouraged other prisoners to start a hunger strike. On the same day, the Penitentiary Commission, viewing the applicant as someone who posed a severe danger to the safety of the facility, classified him as a “dangerous detainee”. The applicant then went on a hunger strike which lasted until 7 September 2009. He was punished by being placed in solitary confinement for fourteen days.

16.  In November 2009 the applicant refused to continue to take part in his rehabilitation programme and was therefore excluded from it.

17.  On 18 February 2010 the special regime for dangerous detainees was lifted in respect of the applicant.

18.  Between 17 November 2009 and 31 March 2010 the applicant was detained in the Rzeszów Remand Centre. On the latter date he was transported back to Lublin.

19.   The applicant’s behaviour during 2011 varied: he was sometimes rewarded for good behaviour and sometimes faced disciplinary measures. Such measures were imposed in particular for illegal contact with other inmates, for commencing hunger strikes and for being active in the prison subculture.

20.  On 6 December 2011 prison officers found that the applicant had 80 Polish zlotys in cash from an unknown source. The money was seized and transferred to the applicant’s bank account.

21.  On 30 January 2012 the applicant attempted to go for a walk in the prison yard without permission from the supervising officer and was reprimanded on 1 February.

22.  On 4 February 2012 the applicant was visited by members of his family and tried to pass them an illegal message on a piece of paper. After the visit he was ordered to undergo a strip search.

23.  On 6 February 2012 the applicant complained about the strip search to the Lublin Remand Centre.

24.  On 17 April 2012 the director of the Lublin Remand Centre examined his complaint and found that the search had been performed in accordance with the law and that the applicant had not been debased or humiliated. The director also found that on 4 February 2012 the applicant had given a visiting member of his family a piece of paper with some notes on it. The director found that that “constituted a violation of discipline and order”.

25.  On 29 April 2012 the applicant complained about another strip search, which had taken place on 28 April 2012. His complaint was examined on 29 June 2012 by the director of the Lublin Remand Centre, who found that the search had been carried out in accordance with the law.

26.  On 5 June 2012 the applicant underwent a strip search which was accompanied by a search of his cell. The inspection of the cell was part of an action plan introduced at the Lublin Remand Centre in 2012 to increase security. The plan included the inspection of all the cells.

27.  In his observations before this Court, the applicant’s lawyer submitted that the applicant had been ordered to undergo a strip search on 5 June 2012, even though he had had severe back pain and had barely been able to walk. He had also had difficulties getting undressed.

28.  The applicant complained to the director of the remand centre. He submitted that after the search of his cell his personal belonging had been thrown on the floor, mixed in with other inmates’ possessions and that the cell had “looked like after a hurricane”. In the complaint he neither mentioned any irregularities as regards the strip search nor complained about back problems.

29.  On 9 August 2012 the remand centre director dismissed the complaint. He found that the search had been performed in accordance with the law and had respected the applicant’s rights and personal dignity. The relevant part of the director’s decision read as follows:

“The strip search and cell inspection were conducted in accordance with Article 116 §§ 2, 3, 4 and 5 of the Code of Execution of Criminal Sentences. The guards did not use offensive language and did not debase you. Nobody hit you. The objects which were inspected were not thrown around. Nothing was damaged during the search.”

30.  In 2012 the applicant was seen by a neurologist seventeen times and on two occasions by a neurosurgeon. On 16 October 2012 an operation, apparently for back pain, was scheduled for the applicant for 17 September 2013. The doctors did not advise against body checks of the applicant.

31.  On 25 August 2012 the applicant had a visit from his sister and brother-in-law and was afterwards ordered to undergo another strip search. He again complained to the director of the Lublin Remand Centre, submitting that the strip search had not been justified and had lacked legal grounds.

32.  On 30 October 2012 the director of the Lublin Remand Centre dismissed the complaint as ill-founded.

The relevant part of the decision read:

“The strip search you were subjected to was carried out in accordance with the relevant provisions and with respect for your personal dignity.”

33.  On 3 November 2012 the applicant received a visit from members of his family and was allowed to have direct contact with them. Afterwards, he was again ordered to undergo a strip search. The applicant stated that he had intense pain in his spine on that day and could barely stand and had therefore refused to undergo the search. The chief duty officer was then called. He arrived with three other guards and subjected the applicant to a strip search. He was ordered to strip naked, bend at the knees, show his penis and open his mouth. However, as he was deemed to have performed the guards’ orders “in a dilatory manner” he was punished on 6 November 2012 with a two-month ban on having direct contact with his family during visits, only being able to see them from behind a glass screen.

34.  On 3 November 2012 the applicant complained to the Central Board of the Prison Service about the way the strip search of 3 November 2012 had been conducted. He submitted, among other things, that he had had severe back pain after the family visit, had barely been able to move and had therefore refused to undress. The prison officers had apparently ignored his complaints and had “forced him to undergo the strip search”. He also submitted in the complaint that he had been unable to get dressed after the strip search because of the severe pain in his back and that he had been left standing in only his underpants for about fifty minutes. One of the officers had then opened the window to let in freezing air to make him get dressed quickly.

35.  On 7 November 2012 the applicant also complained about the imposition of the disciplinary penalty on him after the strip search of 3 November 2012.

36.  On 20 November 2012 the director of Lublin Remand Centre informed the applicant that his complaint of 3 November needed further investigation, which would last until 7 December 2012. The applicant did not provide any further information about the outcome of those proceedings.

37.  The complaint of 7 November 2012 was dismissed on 20 November 2012. The decision, issued by the deputy director of the Lublin Remand Centre, said that the “applicant refused to undergo a strip search and only agreed to comply when the chief duty officer was called”. The decision does not refer to the applicant’s submissions that the alleged reason for his refusal to undergo the strip search had been severe back pain. It also made no reference to his allegations that he had been left for about fifty minutes in a state of being unable to get dressed and that he had been forced to put his clothes on by someone letting freezing air into the room. The applicant then lodged a further complaint with the Lublin Regional Court, which, on 17 December 2012 upheld the decision given by the deputy director of the Lublin Remand Centre. The court found that the decision had been issued in accordance with the relevant provisions of the law and that it had no competence to examine whether the decision had been well-founded or not.

38.  On 12 September 2013 the Lublin Regional Court, in view of the applicant’s state of health and his neurological and orthopaedic problems, granted him leave to undergo the operation outside prison. The applicant was scheduled to return to prison on 12 January 2014.

50.  The applicant complained that the strip searches to which he had been subjected had amounted to a violation of Article 3 of the Convention, which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

51.  The Court also communicated the applicant’s complaints under Article 8 of the Convention, which provides:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

59.  As the Court has stated on many occasions, ill‑treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of that minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a time and caused either actual bodily injury or intense physical and mental suffering. It has been found to be “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. The question of whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account, but the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000‑IV). Allegations of ill‑treatment must be supported by appropriate evidence. To assess that evidence, the Court adopts the standard of proof of “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (ibidem, § 121).

60.  The Court has found that strip searches may be necessary on occasion to ensure prison security or to prevent disorder or crime (Iwańczuk v. Poland, no. 25196/94, § 59, 15 November 2001, and Van de Ven v. the Netherlands,no. 50901/99, § 60). They should be carried out in an appropriate manner with due respect for human dignity and for a legitimate purpose (Wainwright v. the United Kingdom, no. 12350/04, § 42). Even single instances of strip searching have been found to amount to degrading treatment in view of the manner in which the strip search was carried out, the possibility that its aim was to humiliate and debase and where there was no justification for it (Valašinas v. Lithuania, no. 44558/98, § 117).

61.  Turning to the instant case, the Court notes thatthe applicant submitted in his observations that the strip search of 5 June 2012 had been ordered despite him having severe back pain. However, it appears from the documents submitted by the applicant, in particular the copy of his complaint lodged after the search and the decision by the director of the Lublin Remand Centre on 9 August 2012 in reply, that the strip search was conducted in accordance with the relevant provisions of the law and that it respected the applicant’s rights and personal dignity. The applicant failed to raise his health problems in his complaint.

62.  Likewise, no irregularities have been shown as regards the strip search of 25 August 2012, about which the applicant again did not raise any particular objections. In his decision of 30 October 2012 the director of the Lublin Remand Centre submitted that the strip search had been carried out in accordance with the relevant provisions and had respected the applicant’s personal dignity.

63.  The Government confirmed that the applicant had been seen by doctors on several occasions in 2012. However, the doctors found no reason to stop strip searches of the applicant on health grounds.

64.  The Court considers that there is no basis for finding that the strip searches of 5 June and 25 August 2012 included any element of debasing or humiliating treatment which might give rise to a violation of Article 3 of the Convention (contrast Iwańczuk, cited above, § 57). Furthermore, as noted above, the applicant’s allegations as regards severe back pain during the searches have not been confirmed. The applicant himself failed to raise that issue in his complaints to the domestic authorities.

65.  On the basis of the above findings the Court considers that it has not been shown that the authorities’ treatment of the applicant during the strip searches of 5 June and 25 August 2012 attained the minimum level of severity necessary to bring Article 3 of the Convention into play.

66.  It follows that there has been no violation of Article 3 of the Convention.

70.The Court has already found that where a measure falls short of Article 3 treatment, it may fall foul of Article 8 of the Convention which, inter alia, provides for the protection of physical and moral integrity under the head of respect for the individual’s private life. There is no doubt that the requirement to undergo a strip search will generally constitute an interference under the first paragraph of Article 8 and must be justified in terms of the second paragraph, namely as being “in accordance with the law” and “necessary in a democratic society” for one or more of the legitimate aims listed therein. According to the settled case-law, the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (Wainwright, cited above, § 43).

71.  Turning to the present case, the Court notes that the orders for the strip searches had a basis in the provisions of domestic law, namely the Code of Execution of Criminal Sentences. The Court is also satisfied that the interference complained of pursued the legitimate aim of “the prevention of disorder or crime” and “the protection of the rights and freedoms of others”.

72.  It remains to be examined whether the body searches and strip searches to which the applicant was subjected were proportionate in the circumstances of the present case.

73.  The Government submitted that they had been justified by a suspicion that the applicant had been engaged in illegal trade because money from an unknown source and some psychoactive drugs had been found in his clothes. They also relied on the fact that on 4 February 2012 he had tried to pass an illegal message to a member of his family; that he had been active in the prison subculture; and had previously been classified as a dangerous detainee. The Court considers that all those factors are indeed of considerable significance for the overall assessment of the applicant’s attitude. However, they do not justify the strip searches on the particular dates referred to in the application. In that regard, the Court notes that the money had been found on the applicant in 2011. It also notes that the attempt to hand over an illegal message might have justified the search on 4 February 2012, which cannot be examined by the Court, and that the dangerous detainee regime had been lifted in respect of the applicant on 18 February 2010.

74.  The Government further submitted that the inspection of the applicant’s cell on 5 June 2012 had been part of a plan to implement security measures. However, they did not explain whether the applicant’s strip search had also been part of that plan and for what particular reasons it had been decided to make the applicant undergo a strip search. Furthermore, the Government submitted no reason at all for the strip search on 25 August 2012.

75.  The Court is aware of the need to ensure security in institutions where people are deprived of their liberty. It considers, however, that highly invasive and potentially debasing measures like body searches or strip searches require a plausible justification. It does not appear that such a justification was given to the applicant by the prison authorities in the instant case. The Court also notes that the Ombudsman recommended on 23 December 2014 that a person who had been notified that he was to undergo a body search should have the right to contest that decision in court. In the absence of such an effective remedy, it is difficult to enforce the requirement of a sufficient justification for body searches or strip searches at the domestic level.

76.  The foregoing considerations are sufficient to enable the Court to conclude that the authorities failed to provide sufficient and relevant reasons justifying the strip searches of the applicant on 5 June 2012 and 25 August 2012.

77.  There has accordingly been a violation of Article 8 of the Convention.

Dejnek v. Poland, application № 9635/13, judgment 01.06.2017