Judgement 11148/18

Applicant name BOJAR
Applicant type Natural person (prisoner)
Number of applicants 1
Country Poland
Application no. 11148/18 
Date 11/05/2023
Judges Lətif Hüseynov, President,
 Krzysztof Wojtyczek,
 Erik Wennerström, judges,
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason Necessary in a democratic society (prevention of crime and disorder)
Type of privacy Bodily privacy
Keywords Searches; arbitrary; disproportional
Facts of the caseApplicant is a prisoner and subjected to several strip searches. He complained about it several times, but the director rejected these complaints and informed him that he had been subjected to a “enhanced supervision programme” in view of suspicions that he had been involved in drug dealing. The applicant was working outside prison. Strip searches of inmates, in particular as they returned from work, were the main protective measure used to maintain order and security in prison. A regional court did not accept applicant’s case, because there had been no decision about which he could complain. Upon a subsequent search, the applicant alleged that a person who was not wearing a uniform and who was unknown to the applicant had been present, as well as other prison guards who had not performed the strip search of the applicant.
AnalysisThe case is interesting because of two related points.
First, the core question the Court deals with is whether there was sufficient reason to subject applicant to searches. The applicant claims he was not informed of such reasons, suggesting that the searches had been arbitrary. Questions over arbitrary use of power are usually dealt with by the Court under the ‘quality of law’ criterion, falling under the ‘in accordance with the law’ requirement. In this judgement, however, the Court deals with it under the ‘necessary in a democratic society’ requirement, more particularly, the proportionality criterion. The ECtHR points out that the regional court could not examine the complaint as there had been no official decision issued and that on another occasion, the authorities were not able to confirm that a strip search had been carried out, as alleged by the applicant, since there was no register of searches. ‘Such a situation prevents the Court from assessing whether the requirement of a sufficient justification for strip searches at the domestic level had been complied with. The foregoing considerations are sufficient to enable the Court to conclude that the authorities failed to provide sufficient and relevant reasons justifying the strip searching of the applicant. (§17-18)’ Thus it finds a violation under the proportionality requirement, because it is unable to assess the proportionality of the interference, while this question is normally dealt with under the quality of law criterion.
Second, a similar question was at the heart of three related cases against the Netherlands issued a few days later, which revolved around law enforcement authorities that had transferred data about applicants without a well-reasoned decision, in which arguments were set out for doing so or containing an assessment of the legality of that decision in light of Article 8 ECHR. The absence of such a decision, the applicants argued, disallowed courts from making a substantive assessment of the legality of the decision to transfer the data, which in itself constituted a violation of the right to privacy. In those cases, the Court did assess the claims under the quality of law criterion, but found no violation of the right to privacy. Though there are various points on which those cases and the Bojar case differ, it is not fully clear why the Court reaches opposite conclusions. One explanation may be that the Court increasingly looks at the strength of a country’s legal regime as a whole and the respect for the rule of law, both taking account of how state officials in practice use their powers and to the existence of legal routes to remedy potential shortcomings or legal irregularities. In the three cases against the Netherlands, for example, the ECtHR dwelled at length on the fact that there was a strong ex post facto oversight on the use of powers in place.
Finally, in Bojar, the applicant also submitted a complaint under Article 13 ECHR. However, the Court found that the claims had already been examined and have resulted in the finding of a violation of Article 8 of the Convention, which is why the Court considered that no separate issue arose under Article 13.
Other Article violation? No violation 13 ECHR
Damage awarded (i) EUR 4,000, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 320, plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
Documents Judgment