Correctional institutions
2.5.6.2 Body searches in the presence of third parties - ViennaJosefstadt correctional institution
Body searches with full disrobement intimately involve the basic right of
privacy.
Inmates are subject to mandatory searches in rooms provided for this purpose
upon transfer or other admission to a correctional institution. The same
applies in the case of release. This is a body search involving disrobement,
which every inmate must undergo. A body search with disrobement shall also
be carried out upon placement in a specially secured inmate cell if a prisoner
is a danger to himself or others.
Full disrobement in
presence of fellow
prisoner
During a visit to Vienna-Josefstadt correctional institution in January 2017,
the NPM found that a fully disrobed inmate was subjected to a body search in
the presence of a second inmate. Both inmates had to remove their clothing
in the same inmate cell, each in a different corner with their backs turned to
each other. Then their possessions were searched, and they were subjected to
body searches.
Law disregarded
This procedure violates statutory requirements stating that a body search with
disrobement is to be carried out in the presence of two employees of the same
gender as the prison inmate and in the absence of fellow prisoners and persons
of the opposite sex.
Sense of shame
infringed
Body searches must always be conducted with respect for the inmate’s sense of
honour and human dignity. Conducting a search with a second inmate in the
room infringes the dignity of the affected person, even if each stands in a corner
with his back to the other. Such a procedure is likely to infringe the affected
person’s sense of shame and human dignity. The prohibition of inhumane and
degrading treatment under Article 3 ECHR guarantees absolute protection.
Such a procedure cannot be justified by staffing or logistical reasons.
No complete
disrobement
The NPM also criticises the fact that inmates must fully disrobe for body
searches (at Vienna-Josefstadt correctional institution). In the opinion of the
NPM, complete disrobement of inmates for body searches is contrary to human
rights standards. Therefore, body searches should generally be conducted in a
way that the person being subjected to the search only bares one part of the
body at a time (see NPM Report 2015, p. 115).
Unfortunately, full disrobement was still included in the Federal Ministry’s
new training document on search practice. The NPM adheres to its criticism
and recommendation and suggests that the training document be changed. It
shall state that disrobement for body searches should take place in two stages
– regardless of gender.
Detailed documentation
130
The NPM further recommends that body searches that are accompanied by
disrobement be documented in writing due to the intensity of the infringement.
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