CHANCELLOR OF JUSTICE AS NATIONAL PREVENTIVE MECHANISM
PART IV
PART III
PART II
PART I
5.4. Security check without a legal basis
The inspection revealed that supervisory staff at Tapa Special School perform security checks
of the pupils arriving at the school, involving both visual as well as pat-down checks. Routine
security checks are carried out in respect of all the pupils returning from a home visit or a
short-term leave, and sometimes also in case of pupils’ movement inside the school. The school
supervision manager justified the security checks with the need to ensure that pupils do not
possess any prohibited items or substances.
The Chancellor understands the practical need to perform, in case of a reasoned suspicion,
security checks of pupils arriving at the school, but cannot accept the restriction of fundamental
rights of persons without a legal basis. § 20(1) of the Constitution establishes everyone’s right
to liberty and security of person (the fundamental right to liberty of person). Under § 20(2) of the
Constitution, liberty of person may be restricted only in the cases and pursuant to a procedure
provided by law. The Supreme Court has also noted that obliging a person to show the items
in their pockets interferes with the right to liberty of person under § 20 of the Constitution and
this may be done only in the cases and pursuant to the procedure provided by law.48
The Juvenile Sanctions Act does not authorise supervisory staff of special schools to perform
security checks of pupils. The director of a school for pupils in need of special treatment due
to behavioural problems or a person authorised by the director has the right to confiscate
prohibited items and substances from a pupil in the presence of the pupil, as well as open
postal and other consignments sent to a pupil in the presence of the pupil. However, the above
does not provide for the right to perform a pat-down check of pupils and their clothing.
The power to perform security checks of children in need of special treatment due to behavioural
problems does not arise from any other legislation either. The Police and Border Guard Act
provides for the right of the police to perform security checks of persons but this right does not
extend to the supervisory staff of special schools. Similarly, the provisions of the Security Act
authorising security guards, when apprehending a person, to carry out a security check of the
person and the items carried by them in order to verify that the apprehended person is not in
possession of items or substances with which they could endanger themselves or others, do
not extend to supervisory staff of special schools. Supervisory staff of Tapa Special School are
neither security guards nor guards of an in-house guarding unit in the meaning of the Security
Act. Thus, in case of a reasoned suspicion that a pupil may be in possession of prohibited items
or substances, the school should contact the police.
As a result of the inspection, the Chancellor recommended the Minister of Education and
Research to analyse whether certain staff of special schools should be given the right to
perform security checks of pupils under certain conditions. The Chancellor also recommended
the Minister of Education and Research to provide clear guidance to special schools on how
to ensure that pupils do not have any prohibited items or substances until the staff of special
schools do not have the right to perform security checks.
5.5. Right to the confidentiality of messages and inviolability of private life
The inspection revealed that the possibilities of pupils at Tapa Special School to communicate
with their next of kin were extremely limited. The pupils had no possibility to communicate
with their next of kin via the internet as the use of the internet was allowed only for study
purposes and under the supervision of a member of staff. Pupils could communicate with their
next of kin by telephone at the designated times and only if a parent himself of herself called
the school. The maximum length of a conversation was limited to 7 minutes at a time and the
phone call took place under the supervision of a member of staff. The only possibility of private
communication with next of kin was by letter.
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48 The Supreme Court Criminal Chamber judgment of 19 May 2005, No 3-1-1-43-05, para 7.
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