Annual Report 2014 of the National Preventive Mechanism
may be contained in a provision of lower ranking including, among others, each and
every one of the events and requirements of the action, the features that the informed
consent by the inmate to the measure should meet, the criteria to be taken into account
to apply the principle of proportionality (reasonableness of the suspicions, seriousness
of the offence...), the need to apply for a court order for body searches if the inmate
refuses to have the radiological test carried out and the contents of such request to the
penitentiary surveillance judge, etc.
193. Regardless of the need for a measure limiting fundamental rights to be
contemplated in an organic act, this institution must express its reserves as regards
this mater, while mentioning that only very founded and restrictive criteria may
found the performance of radiological explorations on regimental grounds.
Any conflict between the dignity and rights of the inmates and the duty of the
penitentiary Authority to maintain the security and proper regimental order of the
Centre must be resolved studying the possible alternatives and weighing up the
ensuing risk/benefit in each case. Unless the medical services consider that the life of
the inmate is at risk because he carries a foreign body or narcotic drug in his body,
other measures less detrimental to the rights of the inmates could likewise ensure the
intended purpose, such as moving the inmates to a department containing a controlled
toilet system enabling the narcotic substance to be recovered, with the proper medical
monitoring and control of the inmate.
194. The application of mechanical immobilisation is not considered adequate
where, it is suspected that the inmates may conceal drugs in their body, but they do
not give their consent to submit to radiological controls, since article 72 RP
establishes that coercive measures “will only be applied where no other less
burdensome measure exists to achieve the intended purpose”, such as that mentioned
in the preceding paragraph.
195. In addition, in the exceptional cases in which radiological explorations are carried
out for regimental reasons, for further safeguard of the rights of the inmates, they
should be furnished with an informed consent form, informing them in terms they are
able to understand and in a sufficient and adequate manner, of the nature and effects
of the radiological test that it is intended to perform and of the consequences for their
health that the carrying of foreign bodies or narcotics in their body may have.
196. In addition, in the opinion of this institution, the request to the penitentiary
surveillance judge for a court order for radiological test, if appropriate, should
contain information on the risks and consequences of the test that is to be carried out
on the inmate, the specific reasons fore which such test is requested, the tests of the
same case carried out at least in the past year and their results, and any other
information that may be relevant.
197. In accordance with the recommendations of the World Health Organisation, the
healthcare services of the centre should be integrated into the public health
services. Although Act 16/2003, of 28 May, on cohesion and quality of the national
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