Situation of deprivation of liberty
requirements of the control, the features that the informed consent of
the inmate of the measure should meet, the criteria to be taken into
account to apply the principle of proportionality (the reasonableness
of the suspicions, the seriousness of the crime...), the need to request
a court order for body control if the inmate refuses to take the X-ray
test and the contents of such request to the Judge for Penitentiary
Surveillance, etc. Said Recommendation was rejected, notwithstanding the fact that, given the relevance of the matter, this Institution has
again requested that its proposals be taken into account.
103. Notwithstanding the need for a measure restricting fundamental rights to be contemplated by a basic law, since it is a measure of
control of a medical nature but adopted for regimental reasons, this
Institution must express its reservations on the matter, while mentioning that the criteria to found it must be well founded and restrictive.
Council Directive 97/43/Euratom on health protection of individuals
against the dangers of ionising radiation in relation to medical exposure, establishes that the responsible organisations and persons
using ionising radiation must reduce unnecessary exposure of patients to radiation. In addition, as stated in the “Referral guidelines for
imaging” of the Directorate-General for the Environment of the European Commission, measures for radiological protection commence by
not making unnecessary tests.
Performance of the test
should be based on founded
and strict criteria
In the opinion of this Institution, any conflict between self-respect and
the rights of the inmates and the duty of the Penitentiary Authority to
maintain the security and good regimental order of the CP, must be
resolved studying all possible alternatives and weighing up the risk/
benefit that may be caused in each case. Unless the medical services
consider that the life of the inmate is at risk for having within his body
a strange object or narcotic substance, among other measures less
detrimental to the rights of the inmates could also ensure the intended
purpose, such as their transfer to a facility containing a toilet system
that enables recovery of the narcotic substance, carrying out the appropriate medical monitoring and control of the inmate.
Possible alternatives should
be considered and the risk/
benefit should be weighted
104. At CP Puerto I (Cádiz) it was verified that, in the case of suspicion that inmates may conceal drugs in their body and that these do
not give their consent to submit to radiological controls, the customary
procedure is to restrain the inmate mechanically until the eventual
expulsion of the substance naturally or until he consents to the radiological control. In the specific case of one inmate, after a few hours of
immobilisation, he accepted to take the radiological test, the results
of which were negative. At CP Puerto III the application of the same
measure to one inmate was also observed. It cannot be agreed that in
cases such as these it may be considered that the inmate voluntarily
accepted to submit to such examination, since it may be inferred that
his reasons were to avoid his immobilisation, or that the measure of
mechanical restraint was suitable, since article 72 RP establishes that
coercive measures “shall only be applied where no other less burdensome measure exists to achieve the sought purpose”, such as that
mentioned in the above paragraph. In respect of the case observed
Mechanical restraint if the
inmate does not give consent
to submit to X-ray controls
99
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