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Amended Code of Execution of Criminal Sentences fails to address issues related to personal searches, HFHR writes to CoE Committee of Ministers

♦ The Helsinki Foundation for Human Rights has sent a communication to the Council of Europe’s Committee of Ministers referring to the execution of the ECtHR judgments entered in Milka v. Poland (application no. 14322/12) and Dejnek v. Poland (application no. 9635/13).

♦ In the judgments, delivered in 2015 and 2017, the ECtHR held that the application of invasive and potentially debasing measures, including personal searches, must always be based on a plausible justification presented by the authorities of the penitentiary facility concerned.

♦ In its communication, the HFHR addressed in detail a proposed amendment to the Code of Execution of Criminal Sentences concerning personal searches.

ECtHR: personal searches violated the right to privacy enshrined in the European Convention on Human Rights

On 15 September 2015, the ECtHR issued a judgment in the case of Milka v. Poland, finding a violation of the Convention that involved subjecting an inmate to personal searches despite the absence of reasons for doing so. The ECtHR judgment was delivered in the case of Sławomir Milka, who repeatedly refused to submit to personal searches during his detention in penitentiary facilities. As a result of the applicant’s conduct, prison governors punished the applicant with various disciplinary sanctions. These sanctions included a reprimand, the temporary withdrawal of food parcel privileges and solitary confinement. Mr Milka has unsuccessfully appealed to the penitentiary court.

The ECtHR found that in the Sławomir Milka’s case there has been a violation of Article 8 ECHR, which stipulates, inter alia, that everyone has the right to respect for their privacy. According to the judgment, such interference of the state with the physical and mental integrity of an individual must be proportionate to the aim pursued. Given the above, the ECtHR ruled that personal searches should be “conducted in an appropriate manner”.

The Court pointed out that there was no evidence to suggest that the applicant could have any dangerous objects on his person. The ECtHR noted that Mr Milka had not given the prison authorities any reason for suspecting him of smuggling any dangerous objects to the penitentiary facility’s premises. 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.

In the judgment issued on 1 June 2017 in the case of Dejnek v. Poland, the Court has once again found a violation of the Convention that involved subjecting an inmate to personal searches despite the absence of reasons for doing so. In contrast to the case of Stanisław Milka, Artur Dejnek was subject to personal searches because unauthorised money and psychoactive substances were found in his clothes. In Dejnek, the ECtHR held that some of the personal searches the applicant had been subject to had not been justified by particular reasons. Accordingly, the Court reiterated an argument presented in Milka v. Poland, ruling 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.” (Dejnek v. Poland, § 75).

In both judgements, the ECtHR referred to a position presented in December 2014 by the Polish Ombudsman, who noted that a prison inmate was unable to contest Prison Service officers’ decision ordering the personal search of their person. The ECtHR concluded that the absence of such an effective remedy significantly impedes the national implementation of the requirement to give sufficient justification for the decision to perform the personal search of an inmate.

A Strasbourg judgment is not the end

Following the delivery of a judgment by the European Court of Human Rights, the Council of Europe’s Committee of Ministers takes on the supervision of the judgement’s execution. Non-governmental organisations are in a position to submit their communications to the Council. The HFHR does this on a regular basis. NGOs prepare their communications to notify the Committee of Ministers of any actions taken on the national level after the judgment has been issued and to provide directions and recommendations for the domestic authorities.

HFHR’s communication to the CoE Committee of Ministers

The HFHR has sent a communication to the Council of Europe’s Committee of Ministers, which addressed in detail a proposed amendment to the Code of Execution of Criminal Sentences concerning personal searches. The new chapter creates, among other things, the possibility of manual examination of intimate parts of searched persons.

The amendment seeks to introduce a number of measures, including the possibility of appealing against the performed personal search to a penitentiary judge. Under the current law, a person deprived of liberty who has been subjected to a personal search may lodge a complaint in an internal procedure, i.e. to the prison administration or to the head of an organisational unit of the Prison Service. Upon the amendment’s entry into force, a penitentiary judge ruling on the defectiveness of a personal search may refer the case to a prosecutor and the competent district head of the Prison Service. According to the HFHR, this measure does not meet the requirements laid down in the ECHR. Such a measure would be in line with the provisions of the Convention only provided it was a penitentiary court and not a penitentiary judge that would examine the reasonableness, accuracy and legality of a personal search, following a complaint lodged against the complaint. Moreover, it would be recommended to provide for a means of seeking compensation for moral and financial losses for a personal search that was carried out unlawfully, improperly and without sufficient reason. At the same time, the HFHR believes that every personal search should be recorded and entered in a proper register.

Case timeline:

Milka v. Poland

⇒ 10 February 2012: S. Milka submits his application to the ECtHR.

⇒ 15 September 2015: the ECtHR enters the judgement.

⇒ 8 November 2017: the Polish Government presents an updated Report.

⇒ 12 July 2019: the Polish Government presents another updated Report.

Dejnek v. Poland

⇒ 14 January 2013: A. Dejnek submits his application to the ECtHR.

⇒ 1 July 2017: the ECtHR delivers the judgment.

⇒ 1 March 2018: the Polish Government presents a report.

⇒ 12 July 2019: the Polish Government presents another updated Report.

 

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