Body search of prisoners should be subject to court assessment Proceedings opened upon a motion of the Commissioner for Human Rights filed to the Constitutional Tribunal in 2016 for rendering Article 116(6) of the Code of Enforcing Judgments in Criminal Cases in relation to Article 7(1) of the same Code unconstitutional was dismissed on 26 November 2019 in the scope in which it does not provide for issuing a decision on inmate’s body search (Case ref. no K 5/16)86. The National Mechanism for the Prevention of Torture underlines that it is important that justification for and method of inmates’ body search be subject to external verification. Court verification fulfils preventive role and may be a deterrent to those who want to carry out body search where it is unnecessary. It is worth to note that situations occurred in the past, when a decision to carry out body search was not justified from the point of view of security, which has already been pointed out by the European Court of Human Rights in Strasbourg in judgments against Poland. ECHR Every day body search of inmates involving the need to strip down naked did not result from any specific security needs and were not related with suspicions resulting from inmate’s behaviour. Such practice must have made the inmate concerned feel humiliated, depressed and must have caused suffering which exceeded the unavoidable amount of humiliation and deprivation related with imprisonment87. Domestic legislation applied in practice did not ensure an effective measure for inmates to appeal against a decision to carry out body search. Due to a lack of such an effective measure it is difficult to enforce a country-wide obligation of sufficient justification for body search or frisking involving stripping down nude88. 86 87 88 Constitutional Tribunal held that the grounds for the motion for rendering unconstitutionality presented by the Commissioner of Human Rights are very terse. Thus, the motion cannot be examined as to its merit and as a consequence the proceeding must be dismissed as no judgment is admissible. A different opinion was presented by judge Piotr Pszczółkowski, in whose opinion the CHR motion fulfilled formal requirements which are a precondition for the examination of the motion as to its merit and the proceeding should have ended with a judgment, according to which Article 116 § 6 of the Act of 6 June 1997 – Code of Enforcing Judgments in Criminal Cases (Dz. U. of 2019, item 676 as amended) construed to mean that inmates’ body search does not require a decision of a detention facility manager which should be verified by court does not conform with Article 45.1 and Article 77.2 of the Constitution of the Republic of Poland. Judgment in the case Świderski versus Poland of 16 February 2016, complaint no 5532/10, paragraphs 60-61. Judgment in the case Milka versus Poland of 15 September 2015, complaint no 14322/12, paragraphs 30 and 48. Report of the Commissioner for Human Rights on the activities of the National Mechanism for the Prevention of Torture in Poland in 2019 41