Each sector covered by the Parliamentary Ombudsman’s preventive mandate, such as police custody facilities, prisons, mental health care institutions and immigration detention centres, have their own legal provisions that provide authority for body searches.
A common aim of the legal provisions is to prevent people bringing objects or substances with them that are illegal or that may be used to injure themselves or others. In the immigration field, body searches may be used to try to determine a person’s identity.
International human rights standards provide legal authority for body searches in different contexts, and they also set requirements for when and how the intervention should be implemented. In the field of correctional services, the UN’s revised Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules) state that searches of prisoners and cells shall be carried out in a manner that is respectful of the inherent human dignity and privacy of the individual being searched. Such measures shall be implemented following an assessment of proportionality, legality and necessity.[1] The European Court of Human Rights has pronounced several judgments that have particularly focused on the most invasive form of body searches, where the person is fully undressed and in some cases also asked to squat for a visual inspection of genital and anal areas. The Court has confirmed that such examinations may in certain cases be degrading if they are not based on an assessment of necessity.[2] In the police immigration detention centre at Trandum, several detainees told the NPM that they found it degrading that invasive body searches involving the full removal of clothing were carried out after visits from persons outside the centre, even though the visits were supervised by staff.
Routine body searches
The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) recommends that body searches that involve removal of clothing shall be based on an individual risk assessment.[3] This corresponds with Rule 52 of the Mandela Rules, which states that intrusive searches, including strip searches, should only be undertaken if absolutely necessary.
In practice, routine strip searches are carried out in several areas under the Parliamentary Ombudsman’s preventive mandate.
In practice, routine strip searches are carried out in several areas under the Parliamentary Ombudsman’s preventive mandate. For prisons, the guidelines to the Execution of Sentences Act state that an inspection on arrival and before and after leaving the prison may only be omitted if security considerations do not indicate otherwise. Body searches involving the full removal of clothing are also routinely carried out when inmates are transferred to security cells. The Parliamentary Ombudsman has criticised this practice on several occasions.
‘With respect to the police immigration detention centre at Trandum, Section 107 of the Immigration Act provides legal authority for the police to carry out body searches when necessary for maintaining peace, order and security; when necessary for the implementation of a removal order; or if there is reason to believe that the detainee is hiding or withholding information about their own or others’ identity. In practice, the main rule at the police immigration detention centre is that detainees shall undergo a body search on arrival, in connection with transfers to the security section, after visits and after any physical contact with the outside world, and when they are present in their cells during room searches. This routine practice has also been criticised by the Parliamentary Ombudsman.
In police custody facilities, the NPM has observed varying practices with regard to routine use of strip searches. For example, the police custody facility in Bergen carried out individual risk assessments before conducting a body search. In a draft of the national custody instructions, the Norwegian Police Directorate has proposed that inspections be limited to superficial searches without the removal of clothing, unless, following a concrete assessment, there is reason to believe that the person is concealing dangerous objects that cannot otherwise be detected.
Within the field of mental health care, the law states that checks involving the removal of clothing are only permitted if there are grounds for suspecting that a patient is attempting to introduce dangerous objects or illegal substances. The same requirement applies to the child welfare sector, where it has been decided in addition that only the surface of the body, the oral cavity and clothes can be searched.
Implementation of a search
The Norwegian regulations contain limited information concerning the method to be used for body searches, and this is reflected in the different practices applied at the institutions the NPM has visited. In several of its reports, the CPT has recommended using as considerate methods as possible to prevent degrading treatment of the person. This includes the use of a two-step process for removing clothing where the person first removes the clothes from their upper body, gets these clothes back and then removes the clothing from their lower body. This is a practice that the NPM has seen in use at Norwegian institutions and that staff have expressed works well. This is proposed as standard practice in the draft of the new national custody instructions. At some child welfare institutions, the NPM has found that young people have been allowed to stand behind a towel to make the process of removing clothing less invasive. The NPM consistently found, however, that the practical implementation of searches involving the removal of clothing varies considerably between the different sectors, institutions and individuals and shifts at specific institutions.
In many cases, using technological aids would be a sufficient means of achieving the goal of a search. The Mandela Rules, for example, encourage the use of such measures as an alternative to body searches.[4] The NPM has observed the use of metal detectors and X-ray checks of clothes and bags. A body scanner has also been observed in use in connection with customs checks.
International guidelines recommend that body searches be carried out by a person of the same gender as the person being searched.[5] This is an important condition for preventing degrading treatment, particularly with respect to people who have been the victims of abuse. The guidelines to the Execution of Sentences Act state that body searches in prisons should be carried out by a staff member of the same gender as the inmate. Conversations with inmates confirm that men are rarely present during body searches of women. In cases where this has happened, the male officer has had his back turned or stood outside a door kept ajar. In the mental health care and child welfare sectors, the law expressly states that body searches are only to be carried out by a person of the same gender as the person being searched. The same practice is also found in the internal guidelines for the police immigration detention centre at Trandum. In police custody facilities, the NPM has found that body searches by staff of the same gender as the detainee are the standard practice.
[1] The Mandela Rules, Rule 50.
[2] See for example Iwanczuk v Poland, 15 November 2001, Shennawy v France, 20 January 2011, Valasina v Lithuania, 24 July 2001 and Frerot v France, 12 June 2007.
[3] CPT’s report after a visit to the Netherlands during 2–13 May 2016, CPT/Inf/(2017)1, page 46, paragraph 110.
[4] The Mandela Rules, Rule 52.
[5] The Mandela Rules, Rule 81 (3) and the Bangkok Rules, Rule 19.