illegal introduction of telephones to compensate the difficulties accessing legal equipm ent, should
justify this restriction of fundamental rights.
Considering that this was not a question of going back over the outright ban on systematic
full-body searches, that the searches authorised by the bill could technically be less invasive than
full-body searches and that the requirement for special grounds and for proportionality provided a
legal framework striking a balance between prisoners' rights and public security obligations,
Parliament adopted the measure put forward. That said, since it does not exclude the possibility
that abuses could arise, it is counting on its own and the CGLPL's supervisory missions to anticipate
or prevent them.
Article 57 of the Prison Act of 24 November 2009 thus now includes the following
provision: "when there is serious reason to suspect the introduction within the prison of banned substances or objects
constituting a threat to the security of people and property, the head of institution can also order searches in locations
and for a set period of time, irrespective of the personality of the persons detained. These searches must be strictly
necessary and proportionate. Special grounds must be cited in their regard and a detailed report submitted to the
relevant competent Public Prosecutor and the prison administration department".
As might have been expected, this provision was the subject of rumours
circulating in prisons going far beyond what it authorises. It was explained to
the CGLPL on several occasions that the reform had reinstated the systematic
nature of searches and, at the very least, scrapped the need for providing
justification. We can only regret, therefore, that the administration has allowed
such rumours to spread by neglecting to adopt implementing measures to
coincide with the passing of the legislation. Indeed, there was an interval of
more than four months between the adoption of the 3 June 2016 Act, which
has been wrongly (albeit widely) interpreted as doing away with all guarantees,
and that of an implementing circular finally on 14 October 6 which sets out the
conditions for implementing the new provisions.
Note, above all, that, the measure according to which "full-body searches shall only be possible if
frisking or the use of electronic detection means prove insufficient," stemming from the initial drafting of the
2009 Act, is applicable to the search policy "when there is question of collective risk" established
in June 2016 and the initial search policy "for reasons related to the individual" alike. The circulation
of mobile phones in places of detention – cited as key grounds for the new system – should logically
be excluded then, insofar as it cannot seriously be claimed that these cannot be detected by frisking
or electronic detection means.
It is therefore extremely timely that the aforementioned circular of 14 October 2016 recalls
that "the different search measures practised by prison staff on the person of prisoners must, pursuant to Article 57
of the Prison Act, meet the criteria of necessity, proportionality and subsidiarity, whether they are carried out on
their own or in combination with technical detection means." The merit of this text is also that it restates the
physical conditions under which searches are carried out and makes clear the prohibition of their
systematic nature, as well as the principles of necessity, proportionality and subsidiarity that must
guide the decision to conduct a search.
Concerning the interpretation of Paragraph 2 (new) of Article 57 of the Prison Act, the
administration gives a very timely reminder of the fact that the legislation does not go back over
the principle of the prohibition of systematic searches or the need to abide by the principles of
necessity, subsidiarity and proportionality.
This circular also clarifies the requirements for formalism specific to non -individualised
search measures:
6
Note on the legal framework governing certain check procedures carried out on prisoners dated 14 October 2016.
20
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