000905
undertake a visual inspection of his anus constitutes an encroachment on dignity,
which exceeds reasonable procedures and amounts to degrading treatment.ia
90. The lnter-American commission of Human Rights (IACHR) has taken the view
that while restrictive measures might be necessary where threat to security is
obvious, "... a vaginal search is more than a restrictive measure as it involves the
invasion of a woman's body". The IACHR proceeded to set out that,,... lawfulness
of a vaginal search or inspection, in a particular case, must meet a four-part test:
1) it must be absolutely necessary to achieve the security objective in the
particular case; 2) there must not exist an alternative option; 3) it should be
determined by judicial order; and 4) it must be carried out by an appropriate
health professional."ls
91.
The Court considers that, of these criteria, those of necessity and availability of
alternative options apply in the instant matter.
92. with
respect
to necessity, the Respondent state does not contend that
the
posed
Applicant
any security threat. The Court notes that he was only accused
of not being in possession of his passport and a visa to stay in Tanzania.
93.
ln the court's view, the Respondent state's submission that,,cavity search,, is the
standard practice upon entry and exit from its prisons can only be read as an
admission of degrading treatment in the instant matter. ln the light of the wording
of relevant provisions of the Charter and case law in reference, the systematic
nature of that practice, especially anal search, cannot justify its performance.
94. Regarding the availability
of alternatives to the anal search, which was conducted
on the Applicant in this case, this Court notes that the objective of preventing the
introduction of items such as drugs, money or weapons into prisons is legitimate,
as it ensures safety of those in custody. Searching accused persons for such
items in that context might thus be acceptable only within strict checks but should
never be to the extent of breaching dignity. There surely exists a wide range of
1a
See E/ shennawy v. France (Merits), no- b1246/08, ss 45*47, ECHR, 20 January 2011. See also,
Frerot v. France (Merits), no.7O2O4t01 , SS 35-48, ECHR, 12 June 2007.
15 Ms. X v. Argentina. Merits.
C
10.506, Judgme nt of October 15, 1996, Report No. 38/96, IACHR,
ss 71-74.
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