Corporal examinations of a detainee in the anus constitute degrading treatment. Violation of Article 13 for non-provision of legal aid for filing a claim for damages
JUDGMENT
Roth v. Germany 22.10.2020 (app. no. 6780/18 and 30776/18)
SUMMARY
Humiliating treatment and the right to compensation. The applicant, being held in a detention center in Germany, was ill-treated during his detention. He underwent at least 12 physical searches in secret parts of his body after he was forced to undress in front of the police. The domestic courts considered the corporal searches to be offensive treatment, however, they considered the recognition of the insult to be sufficient as a justification and refused to provide legal assistance to bring an action for damages.
The Court recalled that, in the case of a person deprived of his liberty, any recourse to physical violence which is not absolutely necessary because of his own conduct infringes on human dignity and constitutes a violation of the right referred to in Article 3. In this case the ECtHR ruled that the physical inquiries submitted by the applicant constituted unquestionably inhuman and degrading treatment.
It further considered that the refusal of the authorities to provide him with legal aid in order to bring an action for damages was unjustified because the degrading treatment he had suffered was such that the monetary compensation was deemed necessary. The ECtHR held that the applicant had no real claim for compensation for the ill-treatment he had suffered, and there had therefore been a violation of Article 13 of the ECHR.
PRINCIPAL FACTS
The applicant, Peter Roth, is a German national who was born in 1960 and is currently serving a
sentence in Straubing Prison (Germany).
The case concerned the applicant’s complaint about repeated random strip searches in prison and
the domestic courts’ refusal to grant him compensation for non-pecuniary damage.
Random searches used to be carried out in Straubing Prison of one in five prisoners, without
exception, before or after their receiving visitors. Such searches involved prisoners having to
completely undress, and bend down for an inspection of their anus. In November 2016 the Federal
Constitutional Court ruled that the practice was unconstitutional.
Mr Roth brought several sets of proceedings in the criminal courts about strip searches he had had
to undergo. In 2016 and 2017 the courts acknowledged that certain searches had been unlawful.
However, when he requested legal aid in order to bring official liability proceedings, the courts
considered that the decisions finding the searches unlawful constituted sufficient redress, making
monetary compensation unnecessary. They therefore found that bringing liability proceedings would
not have sufficient prospects of success and dismissed his requests for legal aid.
Mr Roth complained that the repeated strip searches had breached his rights under Articles 3
(prohibition of inhuman or degrading treatment) and 13 (right to an effective remedy).
THE DECISION OF THE COURT…
Article 3
Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and health of the victim. The Court further reiterates that, in respect of a person who is deprived of his liberty, or, more generally, is confronted with law‑enforcement officers, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in Article 3 .
The Court observes that the eleven strip searches of the applicant, which included an inspection of the anus and thus also entailed embarrassing positions, were intrusive. It is further uncontested that the repeated searches which the applicant had to undergo were random searches. On all occasions on which the applicant was searched, he expected visits from, or had met public officials. The domestic courts had indeed acknowledged that an abuse of the visiting rights had been unlikely in the applicant’s case .
In these circumstances, the Court is not satisfied that the searches of the applicant had an established concrete connection with the preservation of prison security or the prevention of crime.
The Court finds that the manner in which the repeated searches as such were carried out unnecessarily debasing or humiliating the applicant. However, owing to the absence of a legitimate purpose for these repeated and generalised searches, the feeling of arbitrariness and the feelings of inferiority and anxiety often associated with them, as well as the feeling of a serious affront to dignity indisputably prompted by the obligation to undress in front of another person and submit to inspection of the anus, resulted in a degree of humiliation exceeding the – unavoidable and hence tolerable – level that strip-searches of prisoners inevitably involve.
The Court observes that in the present case the domestic courts acknowledged that the strip searches of the applicant had been unlawful and conceded that the interference with the applicant’s personality rights on account of these searches had been serious. The national authorities can be considered to have recognised thereby, at least in substance, a breach of Article 3.
However, the national authorities, when refusing to grant the applicant legal aid in order to bring official liability proceedings, considered that granting him monetary compensation for the non-pecuniary damage caused by that breach was not necessary. The Court, however, does not discern any grounds warranting the conclusion that in the applicant’s case the breach of Article 3 by the repeated strip searches is of a minor nature , such that compensation would be unnecessary.
It follows that the applicant may still claim to be the victim of a violation of Article 3 within the meaning of Article 34 of the Convention.
There has therefore been a violation of Article 3 of the Convention.
Article 13
Article 13 requires the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief . The Court further reiterates that where an arguable breach of one or more of the rights under the Convention is in issue, there should be available to the victim a mechanism for establishing any liability of State officials or bodies for that breach. Furthermore, in appropriate cases, compensation for the pecuniary and non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress .
The Court has found above that the strip searches of the applicant amounted to degrading treatment in breach of Article 3 . The applicant’s complaint in this regard is therefore “arguable” for the purposes of Article 13.
As for the effectiveness, for the purposes of Article 13, of the official liability proceedings which the applicant attempted to bring in order to obtain compensation for the non-pecuniary damage flowing from that breach, the Court observes that in the domestic court’s view, sufficient compensation for the interference with the applicant’s personality rights had been granted by other means than monetary compensation.
The Court refers to its case-law to the effect that making the award of compensation for measures in breach of Article 3 conditional on the claimant’s ability to prove fault on the part of the authorities.It observes that the applicant’s official liability proceedings were found to have no prospects of success even despite the fact that the measures against him were classified as unlawful and despite the fact that there had – at least potentially – been fault on the part of the authorities.
Moreover, as found above , the Court does not see any reason for concluding that in the applicant’s case the breach of Article 3 by the repeated strip searches was of such a minor nature that compensation would exceptionally be unnecessary. It would add in this context that it cannot be derived from its case-law that the fact that the national authorities were not aware of having violated the Convention, or that the applicant would probably not be subjected again to such treatment in breach of his fundamental rights, constituted decisive grounds for not awarding compensation in respect of the non-pecuniary damage suffered as a result of a breach of a Convention right.
In these circumstances, the Court cannot but conclude that the applicant did not have at his disposal an effective remedy before a national authority to deal with the substance of his complaint under Article 3. There has accordingly been a violation of Article 13 read in conjunction with Article 3 of the Convention.
