ESSEX PAPER 3: INITIAL GUIDANCE ON THE INTERPRETATION AND IMPLEMENTATION OF THE UN NELSON MANDELA RULES The Essex Group recommended that prison staff should be trained in methods to identify whether there are grounds for searching in the first place, whether searches are necessary and proportionate and which alternatives can be used. Rule 51 requires the prison administration to keep records of the search including the identity of the officials who conducted the search and the reasons and results of the search. The experts particularly emphasized the importance of recording why intrusive searches are necessary given the harm they can have on prisoners as set out below. The experts also noted that evidence of the specific alternatives considered should be included in the documentation and records of the use of searches. The experts discussed that in order to ensure accountability, as explicitly captured in Rule 51, records need to include whether and which alternatives to searching had been considered and why they were not deemed suitable in the circumstances. Intrusive Body Searches Rule 52(1) specifies that intrusive body searches may only be used if absolutely necessary. This is because intrusive searches can be particularly harmful and have an adverse impact on prisoners’ human dignity, particularly for women prisoners, and can amount to a violation of the prohibition of torture and other ill-treatment, depending on how they are carried out. It is for this reason, the InterAmerican Commission on Human Rights39 and some national jurisdictions have prohibited intrusive body searches altogether.40 The Essex Group suggested that ‘absolutely necessary’ should be understood in the same way in which it is applied to the use of instruments of restraint, meaning situations in which there is an immediate risk to the prisoner or other persons41. The Essex Group pointed out that intimate, strip and cavity searches may be conducted using force, with an even heightened potential of misuse by prison officials seeking to assert power and control over new prisoners. As noted above, in such cases, it may also violate the prohibition of torture and other ill-treatment.42 In line with international standards and norms, Rule 52(1) requires that alternatives should always be pursued instead of intrusive body searches.43 Where available, technology should be used such as electronic detection scanning methods44 although certain forms of technology will not pick up an organic package, for example. Principle XXI, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas: “Intrusive vaginal or anal searches shall be prohibited by law.” 39  See Article 57 of the 2009 French Prison Law. In Brazil, five states have also prohibited invasive searches: Paraíba, Goiás, Rio Grande do Sul, Rio de Janeiro and Minas Gerais. 40  See Rule 48 of the Nelson Mandela Rules. 41  Iwanczuk v Poland, Application No. 25196/94 (ECHR,15 November 2001); EL Shennawy v France Application no. 51246/08 (ECHR, 20 January 2011) (during two weeks, the applicant was subjected to 4 to 8 searches a day, when going and leaving the tribunal; during the first week, searches were video recorded and carried out by hooded law enforcement personnel; these searches, under these conditions and frequency, were not justified by pressing security need); Valasina v Lithuania, Application No. 44558/98 (ECHR, 24 July 2001)(a male prisoner was obliged to strip naked in the presence of a woman prison officer, and then his sexual organs and his food were touched with bare hands; this constituted a degrading treatment); Frerot v. France, Application No. 70204/01 (ECHR, 12 June 2007). 42  See, for example, Rule 20 of the Bangkok Rules and Principle XXI of the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas. 43  UN Committee against Torture, Observations of the Committee on the revision of the United Nations Standard Minimum Rules for the Treatment of Prisoners (SMR), (16 December 2013) UN-Doc. CAT/C/51/4, para.31. See also, Principle XXI of the Inter-American Principles And Best Practices On The Protection Of Persons Deprived Of Liberty. 44  Penal Reform International and the Essex Human Rights Centre | 16