Daily cell and body searches were unlawful

Case no. BS-25262/2021-HJR

Department of Prisons and Probation
vs.
A

and

Case no. BS-25448/2021-HJR

A
vs.
Department of Prisons and Probation

Judgment delivered on 22 June 2022

In June 2016, A was remanded in custody charged with violation of the provisions of the Danish Criminal Code on recruitment and training for terrorism. Based on the charge and the high risk of unlawful communication, an order had been issued to place him under special stricter surveillance, which included a daily routine of searches of his cell and his body.

The Supreme Court stated that the body searches had in a number of cases been contrary to the Danish Criminal Enforcement Act, because they did not fulfil the requirements laid down in the Act for necessity and proportionality, and that the unlawful body searches had involved degrading treatment in contravention of Article 3 of the European Convention on Human Rights on inhuman or degrading treatment.

Firstly, the Supreme Court gave importance to the nature of the charge and the Department of Prisons and Probation’s assessment of the risk of unlawful communication. Secondly, the Supreme Court referred to the fact that the body searches had been performed routinely and systematically over a period of more than 11 months, including on days when A had not left his cell, and that none of the searches had uncovered any illegal effects in his possession.

The Supreme Court stated that a number of the cell searches had also violated the Criminal Enforcement Act, and that the unlawful cell searches had infringed Article 8 of the European Convention on Human Rights on the right to respect for private life.

The Supreme Court agreed that A was entitled to compensation for the infringements, and it assessed the compensation at DKK 30,000.

The High Court had essentially reached the same conclusion.