ADAMČO proti Slovensku

FIRST SECTION

CASE OF ADAMČO v. SLOVAKIA (No. 2)

(Applications nos. 55792/20, 35253/21 and 41955/22)

JUDGMENT

STRASBOURG

12 December 2024

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Adamčo v. Slovakia (no. 2),

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Ivana Jelić, President,
Alena Poláčková,
Krzysztof Wojtyczek,
Georgios A. Serghides,
Raffaele Sabato,
Alain Chablais,
Artūrs Kučs, judges,
and Ilse Freiwirth, Section Registrar,

Having regard to:

the applications (nos. 55792/20, 35253/21 and 41955/22) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovak national, Mr Branislav Adamčo (“the applicant”), on 15 December 2020, 1 July 2021 and 24 August 2022, respectively;

the decisions to give notice to the Government of the Slovak Republic (“the Government”) of the complaints under Articles 3, 8 and 13 of the Convention in connection with the strip searches of the applicant, the examination of the contents of his personal documents and his being restrained during a break in a court hearing, and to declare inadmissible the remainder of the applications;

the parties’ observations;

Having deliberated in private on 19 November 2024,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The case mainly concerns a specific form of body search carried out on the applicant as a person serving a prison sentence at the “maximum guarding level” (maximálny stupeň stráženia). Known as a “thorough strip search” (dôkladná osobná prehliadka – “TSS” or, in the plural, “TSSs”), this generally consists of the subject of the search stripping naked, performing a squat, and being “visually searched” and it is carried out, inter alia, in connection with receiving “open visits” (including from his or her lawyers), taking part in investigative measures outside of the prison and being transferred to court hearings and between prisons.

2. In addition, the case also concerns certain individual incidents when the applicant’s personal documents were inspected on the occasion of his conferring with his lawyers, and an one-off incident when, during a break in a court hearing, the applicant was refused to have one of his hands released from a special restraining device in order for him to be able to use the toilet. This device consists of handcuffs and leg-cuffs, which are connected by a chain that is attached to a belt (an “SRD”).

3. The case raises issues under Articles 3, 8 and 13 of the Convention.

THE FACTS

4. The applicant, born in 1978, is detained in Leopoldov and was represented by Mr M. Kuzma, a lawyer practising in Košice.

5. The Government were represented by their Agent, Ms M. Bálintová.

6. The facts of the case may be summarised as follows.

1. THE APPLICANT’S DETENTION AND SEARCHES

7. In connection with his prosecutions and convictions for violent offences related to organised crime (see, for example, Adamčo v. Slovakia, no. 45084/14, 12 November 2019, and Potoczká and Adamčo v. Slovakia, no. 7286/16, 12 January 2023), the applicant has been continuously deprived of his liberty since 24 August 2006; he is presently serving a sentence of twenty-four years’ imprisonment. The principal part of his detention took place in Leopoldov Prison, but he was also incarcerated in other detention facilities.

8. In serving his sentence, the applicant has been obliged to submit to those restrictions on his human rights and fundamental freedoms that are inherent in that sentence (section 4(1) of the Execution of Prison Sentences Act (Law no. 475/2005 Coll., as amended – “the EPSA”). This entailed having to submit to a search of his person and of his personal belongings (section 39(h) of the EPSA Act) under the terms specified in section 13b of the Prison and Court Guard Service Act (Law no. 4/2001 Coll., as amended – “the PCGSA”).

9. With effect from 15 March 2018, the PCGSA was amended (by Law no. 50/2018 Coll.) so as to define a TSS as constituting a specific form of search of a person.

10. The explanatory report (dôvodová správa) regarding the relevant part of the amendment specified that the law in force until then had not clearly defined a uniform manner in which the TSS was to be carried out, and under what conditions; moreover, the report stated that the amendment was to contribute to the safeguarding of the rights of detained persons. Further details as to when and how a TSS is to be carried out are provided in Order of the Minister of Justice no. 2/2014 on the ensuring of protection by the Prison and Court Guard Service (“the 2014 Order”), as in force since 1 January 2017.

11. Among other instances, a TSS was carried out on the applicant (i) twice on 5 February 2018, and several TSSs were carried out on him (ii) between 22 January and 7 February 2019 and (iii) between 14 and 20 March 2019 and (iv) on 22 July 2021, as specified in more detail below.

12. In the absence of specific records regarding of the total number of TSSs carried out on the applicant throughout his detention, the parties provided the following data as to the numbers of the situations that had arisen in the applicant’s case in which a TSS had been prescribed by law (see paragraph 1 above).

13. According to the Government, since 2008 the applicant had received forty-three open visits (the records concerning visits received in the preceding period being inconclusive). The applicant did not dispute that number, and pointed out that a TSS had been carried out prior to and after each of those visits.

The Government also submitted that records concerning the applicant’s participation in investigative measures were incomplete. According to the information received from the prisons involved, he had taken part in such measures on 1,077 occasions, while other records indicated that his presence at such measures had been requested 1,152 times. However, pointing to the statements given by the authorities of the prisons in question and the applicant’s own submissions, the Government argued that a TSS had not necessarily been carried out on each of these occasions. The applicant for his part argued that the number of investigative measures in which he had taken part had been greater but that, in absolute figures, the difference was not decisive.

The parties were in agreement in that the applicant had been transferred between prisons 198 times, the applicant adding that a TSS would be carried out both prior to and after each of such transfers.

The applicant submitted that, moreover, he had also been escorted to court hearings on 180 occasions; he added that, by law, a TSS had had to be carried out before each such escort.

14. In more general terms, the applicant pointed out that, in addition to the above-mentioned instances, “regular” TSSs had been carried out (see paragraph 41 below) and that, if those “regular” TSSs were included, he had undoubtedly been submitted to a TSS more than two thousand times. In that regard, the Government objected that such “regular” TSSs were outside the scope of the present case.

15. The searches referred to under items (ii) and (iii) (see paragraph 11 above) were prompted by the applicant’s meeting his lawyers; on those occasions, documents containing his notes for and notes from his lawyers were also inspected.

2. REMEDIES USED IN RESPECT OF THE APPLICANT’S SEARCHES

16. The applicant unsuccessfully challenged the above-noted specific instances of a TSS in complaints lodged by him with the Public Prosecution Service (“the PPS”) on 12 February 2018 (concerning the incident referred to under item (i) above), 11 February 2019 (concerning the incidents between January and February 2019 referred to under items (ii) and (iii) above) and 26 July 2021 (concerning the incident referred to under item (iv) above). After those complaints were dismissed, he pursued his case by means of lodging repeated complaints under section 36(1) of the Public Prosecution Service Act (Law no. 153/2001 Coll., as amended) and repeated complaints under section 36(2) of that Act.

17. The applicant’s arguments may be summarised as follows.

He had been subjected to a TSS on countless occasions over a period of twelve years and nothing illicit had ever been found on him. On the occasion of his transfer between two prisons on 5 February 2018, he had at all times been blindfolded and restrained by handcuffs and leg-cuffs, and had had to wear soundproof earmuffs, in addition to which he had been under visual surveillance by several guards. TSSs undertaken both prior to and after the transfer had, in the circumstances, neither served any legitimate aim nor been necessary. Moreover, the legal definition of a TSS in section 41 of the 2014 Order was flawed in that it made no reference to the person being searched having to perform a squat.

With regard to his having been subjected to a TSS both prior to and after receiving visits from his lawyers and having his legal documents inspected on fourteen such occasions between January and March 2019, the applicant argued that a consultation with a lawyer was not to be treated as an ordinary visit for the purposes of the provisions on TSS (section 41(1)(j) of the 2014 Order and section 24 of the EPSA), since contact with lawyers was subject to special rules under section 38 of the EPSA. Moreover, as regards inspections of his documents, the applicant also relied on the Court’s judgment in the case of Laurent v. France (no. 28798/13, 24 May 2018).

In connection with the TSSs to which he had been subjected both before and after attending a court hearing on 22 July 2021, the applicant argued that preventive and restrictive measures had been applied to him routinely, and without any individualised consideration of any security risks. This had been unjustified, and contrary to the observations and recommendations of the European Committee for the Prevention of Torture (“the CPT”) in its report on its visit to Slovakia in 2018. The disproportionality of being subjected to a TSS both before and after the court hearing was exacerbated by the fact that throughout the entire time between the two searches, he had been constantly under the visual surveillance of five guards.

18. The reasoning of the PPS for dismissing the applicant’s complaints and repeated complaints may be summarised as follows.

Submitting the applicant to a TSS on 5 February 2018 had had its basis in section 41(1)(c) of the 2014 Order, and it made no difference that a TSS had been carried out twice. Having to perform a single squat in the circumstances had not constituted harassment and had simply constituted a means of achieving the purpose of the search, which had been purely preventive and security-related and had taken into account the individual circumstances of the person searched.

With regard to the searches of the applicant’s person and the inspections of his documents between 22 January and 8 February 2019 and between 14 and 20 March 2019, the PPS referred to the powers of the prison administration under section 13b(1), (2) and (6) of the PCGSA (see paragraphs 36-38 below) and section 41(1) and (2) of the 2014 Order (see paragraphs 39 and 40 below). As to the justification for the TSSs conducted in connection with an inmate’s contact with his or her lawyer, it was unimportant whether the contact was seen as a “visit”; the relevant criterion was whether that contact had been direct or indirect.

As to the searches of the applicant on 22 July 2021, the PPS referred to section 41(c) and (f) of the 2014 Order, which provided that a prisoner should be subjected to a TSS prior to a transfer between prison facilities and in response to any concern that the prisoner was carrying illicit objects. In that regard, the PPS opined that such a concern “needed no support in any circumstance” and referred to the position taken by the prison administration that “during the court hearing [the applicant] had been placed near a civilian person”, with a reference being made to “[the applicant’s] person in correlation with the sentence [imposed on him]”.

In sum, in the application of the pertaining rules, no shortcomings had been established.

19. The applicant’s subsequent constitutional complaints, in which he reiterated his arguments, were declared inadmissible by decisions of 23 February 2021, case no. IV. US 79/21 (concerning item (i) above), 7 July 2020, case no. II. US 312/2020 (concerning items (ii) and (iii) above), and 22 June 2022, case no. IV. US 343/22 (concerning item (iv) above).

20. The Constitutional Court’s reasoning may be summarised as follows.

Under the principle of subsidiarity, the Constitutional Court had no direct jurisdiction in respect of any actions or omissions on the part of a prison administration and the district and regional levels of the PPS. Accordingly, its jurisdiction was limited to reviewing how the highest level of the PPS (the Office of the Prosecutor General) had dealt with the applicant’s complaints concerning the prison administration and the lower levels of the PPS. In that regard, the Office of the Prosecutor General had properly exercised its duties, and its conclusions had not been arbitrary or extremely illogical and had not missed the essence of the case. The fact that no illicit objects had ever been found on the applicant was of no consequence, since any past behaviour provided no guarantee as regards future behaviour. The complaints were accordingly manifestly ill‑founded.

3. USE OF AN SRD ON THE APPLICANT ON 22 JULY 2021 AND REMEDIES APPLIED IN THAT RESPECT

21. As alluded to above, on 22 July 2021 the applicant was escorted from Košice Prison to the Košice District Court in order to attend a hearing. For the purposes of the transfer, he was restrained by an SRD (see paragraph 2 above) and at all times guarded by five guards.

22. It is undisputed that, at the opening of the hearing, the presiding judge asked the applicant’s escort whether there were any security-related grounds preventing that his hands be released. As there were none, his hands were freed until a break in the hearing, when they were secured again, and the applicant was shown to a waiting room for detained persons (eskortná miestnosť) that was furnished with metal bars.

23. During the break, the applicant requested that one of his hands be released in order that he could use the toilet for urinating. As this request was refused, he did not use the toilet.

24. At the conclusion of the break, the applicant was again brought to the courtroom for the continuation of the hearing and his hands were again released, in application of the same procedure as that described above.

25. In his complaint to the PPS of 26 July 2021 and in his subsequent repeated complaints (see paragraph 16 above), the applicant also argued that his not having his hand released and accordingly not being able to use the toilet, as specified above, could not have had any acceptable justification, as there had never been anything illicit found on him; moreover, throughout the day he had at all times been under the surveillance of his guards, and the incident had taken place in the fully secured space of the courthouse. The impugned treatment had been degrading and had impaired his ability to concentrate during the subsequent court proceedings. It had been absurd for his hands to remain released during the hearing but not during the break. Except for referring him to the applicable legal provisions, the PPS had in fact given no grounds for dismissing his complaints.

26. In dismissing his complaints and repeated complaints, the PPS referred to the applicable legal provisions – in particular section 31(1)(c) of the PCGSA and section 52(2), (3), (4) and (6) of the 2014 Order – and found that no shortcomings had been established in the application thereof. In a letter of 6 October 2021, the Košice Regional Office of the PPS added that the PPS was not the author of the given rules, and its task was to implement them, but “certainly not to provide any explanatory argumentation”.

27. In his complaint to the Constitutional Court (see paragraph 19 above), the applicant reiterated his arguments. In dismissing his complaint, the Constitutional Court referred to the reasoning given by the PPS and observed that the use of restraining measures on the applicant had been justified on several of the relevant statutory grounds – particularly in view of the gravity of his offences and his physical capacity.

4. OTHER FACTS RELIED ON BY THE PARTIES

28. Together with his observations, the applicant submitted a copy of an instruction issued in 2012 by the governor of Košice Prison regarding measures to be taken with regard to the applicant’s detention in that prison pursuant to which, inter alia, “special attention [was to be paid] to the monitoring of his correspondence, with a focus on prohibited information and also when carrying out any [other] business.”

29. In their observations, the Government pointed out that, while serving his sentence, in 2009, 2012 and 2013 the applicant had committed three disciplinary offences. In response, the applicant explained that the sanctions imposed for these offences had been expunged (zahladnie disciplinárneho trestu) and that, by law, they were thus to be seen as having never been imposed.

30. The Government also referred to an overview of various incidents noted by the prison administration as having taken place between 2017 and 2023 in the prisons in Slovakia concerning illicit objects and substances that had been found on or used by inmates.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

1. JURISDICTION OF THE ORDINARY COURTS IN CONTENTIOUS MATTERS, ACTION FOR THE PROTECTION OF PERSONAL INTEGRITY AND ANTI-DISCRIMINATION ACTION

31. The relevant legal provisions are laid out in Maslák v. Slovakia (no. 2) (no. 38321/17, §§ 78, 79, 81 and 82, 31 March 2022).

2. PRACTICE OF THE ORDINARY COURTS AS REGARDS ACTIONS FOR THE PROTECTION OF PERSONAL INTEGRITY REFERRED TO BY THE GOVERNMENT

32. Without providing the texts thereof, the Government referred to decisions issued by the Banská Bystrica Regional Court on 23 August and 27 September 2018 and 12 June 2019 regarding appeals lodged in respect of unrelated cases nos. 14Co 132/18, 16Co 38/18 and 13Co 270/18. In the Government’s submission, by those decisions the Regional Court had quashed first-instance decisions discontinuing proceedings in respect of actions seeking the protection of personal integrity and had held that it was the task of the first-instance court to re-examine them. In so far as can be established, the actions in question had been brought by inmates or former inmates against the prisons (and their governors) where they were serving or had served sentences; they had brought those actions in connection with matters such as their alleged entitlement to use a notebook computer, to make telephone calls and to receive visits. In the Government’s submission, the Regional Court had held that, in so far as the plaintiffs had argued that actions or omissions on the part of the defendants had given rise to private claims linked to the protection of the plaintiffs’ personal integrity, it behoved the courts to examine whether such claims had been made out.

33. In response, the applicant clarified the further development and outcome of the proceedings in respect of the said actions as follows:

Upon the delivery of the above-mentioned decision of 23 August 2018, the respective action had been discontinued with final effect, as the plaintiff had failed to pay the court fees.

After the decision of 27 September 2018, the given action had been dismissed as unfounded (by a final decision given by the Regional Court on 27 October 2021). Referring to a Constitutional Court’s ruling of 3 May 2017 in an unrelated case no. I. US 226/17, the Regional Court noted, inter alia, that special legislation governing prison-related matters provided for the possibility to pursue a remedy in respect of such matters before the PPS.

Following the above-mentioned decision of 12 June 2019, the action in question had been dismissed by the Banská Bystrica District Court with final effect. The court’s decision had referred to established judicial practice according to which an interference with personal integrity stemming from the ordinary exercise of official powers in criminal or other similar official proceedings could not be considered to be unjustified. If a decision constituting an interference with personal integrity was quashed, compensation claims resulting from that decision were to be pursued under the State Liability Act.

3. STATUTORY RULES CONCERNING SEARCHES AND THE USE OF RESTRAINING DEVICES IN PRISONS

34. During the execution of a prison sentence, inmates are obliged to submit to restrictions on human rights and fundamental freedoms, the exercise of which either would be contrary to the purpose of the sentence, or may not be exercised while the sentence is being executed (section 4(1) of the EPSA).

35. Under section 39(b) and (h) of the EPSA, a convicted inmate is obliged to follow instructions and orders given by officers and employees of the Prison and Court Guard Service (“the PCGS”) and to submit to a search of his or her person and a search of his or her personal belongings.

36. The PSGSA entered into force on 1 February 2001. Its section 13b(1) and (2) (see paragraph 8 above) gives officers of the PCGS the power to carry out a search of the person and personal belongings of inmates, such a search being considered to be a preventive security-related measure serving, inter alia, to prevent inmates from producing and holding illicit objects and substances. Subsection 3 provides that such a search must not pursue objectives other than the purpose of the sentence or detention and of protecting persons, premises of the PCGS or good order on such premises.

37. A search of the person of an inmate is to be carried out by a guard of the same sex; hygiene rules must be respected and the human dignity of the searched person must not be degraded (section 13b(4)).

38. With effect from 15 March 2018 a new provision (subsection 6) was added to section 13b of the PCGSA, setting out that a TSS consists of the inmate in question having to strip down to his or her underwear and an officer of the PCGS carrying out a search of, inter alia, the buccal cavity, armpits, palms and soles. Once the inmate has stripped naked, the officer is to carry out a visual check of his or her body.

39. Under the 2014 Order (see paragraph 10 above), as applicable from 1 January 2017, a TSS is to be carried out, inter alia: before and after the direct escorting of the inmate in question (section 41(1)(c)); before and after the inmate is escorted for the purposes of proceedings before a court or the PPS (section 41(1)(e)); when there is a concern that the inmate may be holding illicit objects (section 41(1)(f)); and prior to and after open visits (section 41(1)(j)).

40. Section 41(2) of the Order, as in force since 1 January 2017, provides TSS procedures that are similar to those set out in the PCGSA (see paragraph 38 above). In addition, it provides that a TSS is to be carried out in a designated area and normally performed on one person at a time. A visual check shall be undertaken to establish any injuries or concealed items.

41. In addition to the searches referred to above, the 2014 Order also prescribes a regular TSS six times per calendar year (sections 36(1) and 37(4)).

42. Under section 25(3)(a) of the EPSA, an inmate’s correspondence with his or her defence counsel is exempted from inspection.

43. Under section 31(1) (b)-(f) of the PCGSA, the following coercive measures may be applied to prevent or pre-empt inmates engaging in unlawful actions: escort shackles (predvádzacie retiazky), binding shackles (spútavacie retiazky), handcuffs (putá), binding belts (spútavací opasok) and binding straps (spútavacie popruhy). In the context of escorting an inmate, these measures may even be applied pre-emptively; their use must be approved by a decision by the prison governor (section 31(2)). Under section 52(2) of the 2014 Order, when taking such a decision, regard is to be had to: the gravity of the offences committed by the inmate; his or her physical fitness, level of dangerousness, behaviour and state of health; and any intelligence held by the prison’s Service for Prevention and Security.

4. CPT REPORT ON ITS VISIT TO SLOVAKIA FROM 19 UNTIL 28 MARCH 2018 (SENT TO THE SLOVAK AUTHORITIES ON 19 DECEMBER 2018) CPT/INF (2019) 20

44. The relevant part of the report provides:

“51. ... Further, the Committee recommends that appropriate steps be taken to:

...

- abolish the practice of using devices on prisoners to block their vision and hearing while they are being transported from one location to another;

- abolish the resort to multiple strip-searches of prisoners being transported from the prison. Reference is also made in this respect to the recommendation in paragraph 92.

...

92. Strip-searching of prisoners was still a frequent occurrence in all the prisons visited. For instance, at Banská Bystrica Prison, inmates were routinely obliged to strip naked and perform a squat before and after every contact visit and whenever leaving/returning to the prison (e.g. to appear before a court).

The CPT must recall that a strip-search is a very invasive – and potentially degrading – measure. Therefore, resort to strip-searches should be based on an individual risk assessment. In order to minimise embarrassment, prisoners who are searched should not normally be required to remove all their clothes at the same time, e.g. a person should be allowed to remove clothing above the waist and to get dressed before removing further clothing.

The Committee reiterates its recommendation that the Slovak authorities ensure that these precepts are effectively implemented in all Slovak prisons.”

5. EUROPEAN PRISON RULES

45. The recommendation of the Committee of Ministers to Member States of the Council of Europe on the European Prison Rules (Rec (2006)2-rev, adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies and revised and amended by the Committee of Ministers on 1 July 2020 at the 1380th meeting of the Ministers’ Deputies), in so far as relevant, reads as follows:

“Legal advice

23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice.

23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.

23.3 Where there is a recognised scheme of free legal aid, the authorities shall bring it to the attention of all prisoners.

23.4 Consultations and other communications, including correspondence about legal matters between prisoners and their legal advisers, shall be confidential.

23.5 A judicial authority may, in exceptional circumstances, authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.

23.6 Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings.”

THE LAW

1. JOINDER OF THE APPLICATIONS

46. Having regard to the similar subject matter of the applications the Court finds it appropriate to examine them jointly in a single judgment (Rule 42 § 1 of the Rules of Court).

2. THE GOVERNMENT’S PRELIMINARY OBJECTIONS
   1. The parties’ submissions

47. The Government argued that the applicant had failed to exhaust domestic remedies by asserting his claims by means of bringing an action for the protection of personal integrity, in respect of which they referred to more recent judicial practice (see paragraph 32 above). Under the same rule, they argued that it was only open to the applicant to complain before the Court of instances of a TSS which he had challenged before the domestic authorities (all having taken place in Košice Prison). In so far as he had raised in his complaint before the Constitutional Court – which had resulted in its judgment of 7 July 2020 (see paragraph 19 above) that, on occasions when he had seen two of his lawyers separately in one day, he had been subjected to a TSS four times within a short space of time – this was incompatible with the exhaustion rule, since no such argument had been raised before the prison authorities and the PPS, and the Constitutional Court was not a court that examined questions of fact.

48. Lastly, the Government argued that any instances of a TSS that had occurred prior to those complained of before the domestic authorities (see paragraph 11 above) were, moreover, outside the Court’s temporal jurisdiction.

49. The applicant replied by contending that he had exhausted the prescribed remedies and that not even the Constitutional Court had referred him to any others. In particular, with reference to the ultimate outcome (see paragraph 33 above) of the very cases referred to by the Government, an action for the protection of personal integrity did not constitute an effective remedy in the circumstances of his case.

50. The applicant also argued that it was unrealistic to complain individually of every single instance of a TSS and that in any case – in view of the findings of the CPT in its report on the 2018 periodic visit of Slovakia – the outcome of such complaints would have been the same.

2. The Court’s assessment
   1. Action for the protection of personal integrity, and the scope of the applicant’s constitutional complaint resulting in the decision of 7 July 2020

51. At the outset, the Court refers to the general principles regarding the requirement of exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014; and Communauté genevoise d’action syndicale (CGAS) v. Switzerland [GC], no. 21881/20, §§ 138-145, 27 November 2023).

52. As to the first part of the Government’s objections under that provision, the Court notes that in its judgment in the case of Maslák v. Slovakia (no. 2) (no. 38321/17, §§ 118-26, 31 March 2022) it extensively examined and rejected the effectiveness of an action for the protection of personal integrity as a remedy for the purposes of Article 35 § 1 of the Convention in similar circumstances. In view of the final outcomes (see paragraph 33 above) of the other cases referred to by the Government (see paragraph 32 above), their argument is undermined rather than strengthened.

53. In addition, the Court reiterates that where there is a choice of remedies, the exhaustion requirement must be applied to reflect the practical realities of the applicant’s position, so as to ensure the effective protection of the rights and freedoms guaranteed by the Convention. Moreover, an applicant who has used a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see, for example, M.B. and Others v. Slovakia, no. 45322/17, § 52, 1 April 2021).

54. On the facts, the applicant made use of a set of remedies available to him under special legislation, up to the level of the Constitutional Court (see Maslák (no. 2), cited above, §§ 75, 83, 90, 92 and 115). Being the supreme authority in Slovakia in charge of the protection of fundamental rights and freedoms the jurisdiction of which is subject to the principle of subsidiarity (see M.B. and Others, cited above, § 54, with further references), the Constitutional Court did not criticise the applicant for not having exhausted the remedy now advocated by the Government prior to turning to the Constitutional Court.

55. Furthermore, as to the Government’s objection concerning the applicant raising complaints before the Constitutional Court without first raising them before the prison authorities and the PPS (see paragraph 47 above), the Court notes that in its decision of 7 July 2020 (see paragraph 19 above) the applicant’s constitutional complaint was rejected as a whole without any reference to the admissibility rule of exhaustion of ordinary remedies.

56. The Government’s objection of non-exhaustion concerning the applicant’s failure to bring an action for the protection of personal integrity and the scope of his complaints to the prison authorities and the PPS prior to his bringing such complaints to the Constitutional Court must accordingly be dismissed.

2. Continuing situation and its implications for admissibility under Article 35 § 1 of the Convention

57. What remains to be examined are the questions of whether the applicant was required (for the purposes of exhausting domestic remedies) to complain at the domestic level of other individual instances of a TSS being performed on his person than those of which he did complain and, if not, whether his complaint of such other individual instances of a TSS being performed on his person was lodged with the Court in time.

58. In that regard, the Court reiterates that the concept of a “continuing situation” refers to a state of affairs in which there are continuous activities by or on the part of the State which render the applicant a victim. Complaints which have as their source specific events that occurred on identifiable dates cannot be construed as referring to a continuing situation. However, in the event of a repetition of the same events, such as an applicant’s transport between the remand prison and the courthouse, even though the applicant was transported on specific days rather than continuously, the absence of any marked variation in the conditions of transport to which he had been routinely subjected created, in the Court’s view, a “continuing situation” which brought the entire period complained of within the Court’s competence. Similarly, in a situation where the applicant’s detention in the police ward was not continuous but occurred at regular intervals when he was brought there for an interview with the investigator or other procedural acts, the Court accepted that in the absence of any material change in the conditions of his detention, the breaking-up of his detention into several periods was not justified. In another case, the applicant’s absence from the detention facility for carrying out a certain procedural act did not prevent the Court from recognising the continuous nature of his detention in that facility (see Fetisov and Others v. Russia, nos. 43710/07 and 5 others, § 75, 17 January 2012, with further references). The same was true where applicants in custody were routinely confined in a metal cage in the courtroom each time they are brought from their detention facility to the courthouse for examination of their case (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 86, ECHR 2014 (extracts)), where there were particular conditions for visits in prison (see Chaldayev v. Russia, no. 33172/16, §§ 45-57, 28 May 2019) and where life prisoners were systematically handcuffed every time they left their cells (see Shlykov and Others v. Russia, nos. 78638/11 and 3 others, § 78, 19 January 2021).

59. In the present case, the applicant complained before the domestic authorities of specific instances of a TSS having been carried out on him on 5 February 2018, between 22 January and 7 February 2019, between 14 and 20 March 2019, and on 22 July 2021. In that regard, he argued, inter alia, that such searches had been carried out on him countless times over a period of twelve years in the past and that preventive and restrictive measures were applied to him routinely without any individualised consideration of any security risks (see paragraphs 11, 16 and 17 above).

His complaints were rejected with reference to the applicable rules and the conclusion that no shortcomings in their application had been established (see paragraph 18 above).

60. The rules in question, as unified with effect from 1 January 2017, define instances such as those complained of by the applicant in which a TSS is to be carried out (see paragraph 39 above). On the basis of the wording of the rules, and also in view of how they were interpreted by the authorities in the present case, it appears that they provide no specific room for discretion in their application. In the Court’s view, this has to be seen in the light of the findings of the CPT in its most recent report in respect of Slovakia to the effect that the strip-searching of prisoners was still a frequent occurrence in all the prisons visited (see paragraph 92 of the report cited in paragraph 44 above) and the fact that, although the exact number of the instances in which the applicant has been subjected to a TSS cannot be established, there is no doubt that throughout his detention he has been subjected to it frequently (see paragraphs 12 et seq. above).

61. There has accordingly been a lasting practice of subjecting the applicant to a TSS in a manner showing no variation.

62. In these circumstances, the Court accepts that carrying out a TSS on the applicant under the pertaining rules constituted a “continuing situation” in terms of its case-law. In view of the outcome of his complaints with regard to four specific instances of a TSS being conducted of his person, it would be excessively formalistic to demand of him that he denounce each and every further instance of a TSS for as long as this situation persists (see Shlykov and Others, cited above, § 62).

63. In sum, the applicant was not required for the purposes of the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention to complain at the domestic level of all other instances of a TSS carried out on his person, and his applications to the Court cannot be rejected as being belated under the provisions of that Article.

64. The Government’s remaining preliminary objections must accordingly be dismissed.

3. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

65. The applicant complained that subjecting him routinely to a TSS and refusing to release one of his hands from the SRD on 22 July 2021 had amounted to treatment contrary to Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

1. Admissibility
   1. Thorough strip searches

66. The Court finds that the complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

2. Special restraining device

67. The applicant complained that the refusal to release one of his hands from the SRD during a break in a court hearing on 22 July 2021 in order that he could use the toilet had been arbitrary. The Government’s arguments to the contrary had been merely general and abstract. Since 2006 he had attended countless court hearings at which his hands had always been released, and this had never led to any security incidents. On other similar occasions his guards would release one of his hands and then be present when he used the toilet, which was less disturbing to him than not being able to use the toilet at all. Not having been able to do so on 22 July 2021 had tormented him and had curtailed his ability fully to concentrate in the subsequent stage of his hearing.

68. The Government argued that the contested use of the SRD had been in accordance with the law (the PCGSA and the 2014 Order) and that it had responded to the situation of the applicant who had been serving a long prison sentence for violent offences under a maximum‑security regime, and who had been physically capable. Releasing his hands during court hearings had been subject to the decision of a judge, while outside of the hearings the decision had rested with PCGS. If his hands had been released for the purposes of using the toilet, officers would have had to be present during its use, and that would have constituted an even more invasive interference with the applicant’s privacy.

69. The Court for its part notes that, rather than being concerned with the use of that SRD as such, the applicant’s complaint appears to concern the fact that, on a single occasion, he was not able to use the toilet because of it. No use of force was involved, and the applicant did not allege that he had been suffering from any health problems on the day of the incident. Moreover, there is no indication that the contested measure aimed to debase or humiliate the applicant or that it produced any severe physical or mental effects on him. At the same time, it cannot be said that it served no security-related purpose (see Canan v. Turkey (dec.), no. 19139/12, §§ 28, 30 and 31, 10 March 2015 and contrast Iwańczuk v. Poland, no. 25196/94, § 59, 15 November 2001).

70. In sum, to the extent the complaint linked to the use of the SRD on the applicant on 22 July 2021 has been substantiated, the Court has found no indication that the applicant was exposed to a treatment incompatible with the guarantees of Article 3 of the Convention.

71. Accordingly, the applicant’s Article 3 complaints concerning the refusal to release one of his hands from the SRD on 22 July 2021 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. Merits
   1. Parties’ arguments

72. The applicant complained of what he considered to be a practice of subjecting him to a TSS, arguing that it was inhuman and degrading.

73. As to its legal basis, he argued that until the 2018 amendment to the PCGSA (see paragraph 9 above) it had been too general, as a result of which the rules and practice until then had been unclear and incoherent. Even under that amendment, the legal basis had remained deficient in that the otherwise precise legal definition of a TSS made no reference to a person being subjected to a search having to perform a squat. Any inconsistencies in the existing practice undermined the genuine existence of a legitimate aim for it. The core of the problem, however, was that the routine imposition of TSSs was not necessary in his case.

74. In that regard, the applicant pointed to the sheer number of occasions on which a TSS had been carried out on him during an extensive period of his imprisonment (see paragraphs 12 to 14 above). While he had been detained in Košice Prison, he would be handcuffed every time he had left his cell for a consultation with his lawyers or the authorities, and any such consultations would take place in a cell equipped with a CCTV camera, with him being separated from his lawyers by bars. When escorted between prisons, he had always been subject to the tightest security measures, including never being informed of a transfer in advance, having all of his belongings searched, being put in an SRD, being blindfolded and having soundproof earmuffs placed over his ears, being under constant visual surveillance by special-intervention forces and never having contact with anyone else. Moreover, when escorted between prisons, both when leaving and arriving he had been examined by a doctor; there had therefore been no genuine need to conduct a TSS in order to check him for injuries.

75. The indicated ground for the TSS conducted on the applicant on 22 July 2021 – namely that he had been placed in the court hearing of that day near a civilian person (see paragraph 18 above) – had been unconvincing, since that person had been his lawyer and nothing illicit had ever been found on him, despite his previously having been in direct contact with his lawyers in the course of countless court hearings. On the day in question, he had had to undergo a TSS on four occasions: when leaving Košice Prison for the Košice District Court, when returning to Košice Prison after the court hearing, when leaving that prison for his transfer to Leopoldov Prison, and upon his arrival there.

76. As the sanctions for disciplinary offences referred to by the Government had been expunged, the offences were to be looked upon as having never been committed (see paragraph 29 above) and, in any event, they had concerned unrelated and minor matters. In other words, there had been no incidents or other circumstances concerning him individually to render necessary subjecting him to a routine TSS.

77. The Government pointed out that the applicant’s sole concern was the mere fact of being frequently subjected to TSSs, rather than any particular aspect of such a search or the execution thereof. In their view, a request to perform a squat expressed in a polite manner was not excessive and, in practice, also took into account any physical predispositions or limitations of the searched inmate. In addition, it did not involve the searched inmate’s anus being exposed to a visual inspection. Such a search served the added purpose of enabling any injuries to be identified. It was carried out by a person of the same sex, with due respect for hygiene rules (gloves were used and a mat provided for the subject of the TSS to stand on) and behind a curtain, and there was a special provision prohibiting any inappropriate comments. Such searches were not carried out as a matter of mechanical routine, but rather on the basis of specific security considerations.

78. In the applicant’s case, the mere fact of his having been convicted of violent offences gave rise to security concerns, and these were reflected in his having transgressed against prison discipline (see paragraph 29 above).

79. As to carrying out a TSS prior to and following a consultation with a lawyer (whether it was seen as a “visit” or not), the Government submitted that the decisive criterion was whether it had taken place with direct contact. In that regard, the Government referred to a survey of various incidents that had taken place between 2017 and 2023 in the prisons in Slovakia (see paragraph 30 above), two of which had involved contact between an inmate and a lawyer.

80. The Government also argued that searches carried out on individual inmates served also to dissuade others from seeking to acquire and keep prohibited objects and substances. Refraining from such searches would raise the risk of having such illicit material brought into and kept in prisons.

2. The Court’s assessment

(a) Relevant principles

81. In its judgment in the case of Roth v. Germany (nos. 6780/18 and 30776/18, §§ 64-69, 22 October 2020, with further references), the Court summarised the relevant principles as follows:

- 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. In considering whether a treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of such a purpose does not conclusively rule out a finding of a violation. Furthermore, the suffering and humiliation must in any event go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.

- Strip searches may be necessary on occasion to ensure prison security or to prevent disorder or crime. They should be carried out in an appropriate manner with due respect for human dignity and for a legitimate purpose.

- 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 words “in principle” cannot be taken to mean that there might be situations in which such a finding of a violation is not called for because the above-mentioned severity threshold has not been attained. Any interference with human dignity strikes at the very essence of the Convention. For that reason any conduct by law-enforcement officers vis‑à‑vis an individual which diminishes human dignity constitutes a violation of Article 3 of the Convention.

- Where the manner in which a search is carried out has debasing elements which significantly aggravate the inevitable humiliation entailed in the procedure, Article 3 has been engaged: for example, where a prisoner was obliged to strip in the presence of a female officer, and his sexual organs and food were touched with bare hands (see Valašinas v. Lithuania, no. 44558/98, § 117, ECHR 2001-VIII), and where a search was conducted before four guards who derided and verbally abused the prisoner (see Iwańczuk, cited above, § 59).

- Similarly, where the search has no established connection with the preservation of prison security and prevention of crime or disorder, issues may arise (for example, ibid. §§ 54, 56 and 58-59, where the search of the applicant, a remand prisoner who had not given grounds for security concerns, was conducted when he wished to exercise his right to vote, and Van der Ven v. the Netherlands (no. 50901/99, §§ 61-62, ECHR 2003-II) and Frérot v. France (no. 70204/01, § 47, 12 June 2007), where the strip‑searching was systematic and long term without convincing security needs; see also Wainwright v. the United Kingdom (no. 12350/04, §§ 40 and 42, ECHR 2006 X).

(b) Application of these principles to the present case

82. In the present case, even though it has been brought before the Court following specific instances of a TSS having been performed on the applicant, what is essentially at stake is the practice of systematically submitting him to such searches in certain legally defined types of a situation.

83. The core of the applicant’s argument focuses on (i) the alleged absence of convincing security needs for performing a TSS on him in countless instances, in particular in view of nothing illicit having ever been found on him and the complex set of other security measures being in place with regard to him in parallel to the TSSs, (ii) the alleged shortcomings in the pertaining legislation, and (iii) the length of the time during which such searches have been performed on him.

84. As described by the applicant and reflected in the legislation adopted with the effect from 15 March 2018 (see paragraph 38 above), the TSS in question consists of the inmate’s having to strip down to his or her underwear and of the searching officer’s carrying out a search of, inter alia, the buccal cavity, armpits, palms and soles and, once the inmate has stripped naked, visually checking the inmate’s body.

85. The legislation in question contains no provision concerning the searched inmate’s having to perform a squat. However, the applicant’s contention that this exercise is in fact a part of the TSS appears to have been acquiesced both by the domestic authorities and the Government (see paragraphs 18 and 77 above). The Court accordingly takes it for established. At the same time, it notes that there has not been any suggestion or other indication that this exercise was accompanied by anything other than a visual check.

86. The applicant has voiced no specific grievance as regards the prescribed manner of the TSS or the fashion in which the TSSs were in fact performed on him.

87. Nevertheless, it remains a fact that personal checks and strip-searches are in principle very invasive and potentially degrading measures that require a plausible justification (see Milka v. Poland, no. 14322/12, § 48, 15 September 2015 and also paragraph 92 of the CPT report on its 2018 visit to Slovakia, cited at paragraph 44 above).

88. In that regard, the domestic authorities’ response to the applicant’s complaints mainly focused on showing that the contested measure had had a legal basis, that it had served a purely preventive and security-related purpose and that the applicable rules had been followed. As to the TSSs of 22 July 2021, a general reference was made to the applicant’s person and his sentence, along with an observation that, during a court hearing earlier that day, he had been placed near a civilian person (see paragraph 18 above).

89. The Court notes the general and abstract tenor of this reasoning, having no specific link to any individual circumstance. As to the hearing of 22 July 2021, it notes that it took place in a secured space of a court building, in the presence of guards, and the applicant had been restrained by the SRD prior to that hearing, in the break of it and also upon its conclusion (see paragraphs 21 and 24 above). In so far as the civilian person referred to by the PPS should have been the applicant’s lawyer, the Court will revert to this below.

90. The Government sought to justify the performance of TSSs on the applicant by referring to security concerns inherent in the violent offences for which he had been convicted and his transgressions against prison discipline (see paragraph 78 above).

91. The Court is not persuaded by this argument. As to the applicant’s disciplinary offences in prison, irrespective of their having been expunged, it has not been established that they gave rise to any particular need to search him. The Court does not overlook the gravity and nature of the criminal offences of which the applicant had been convicted. However, they need to be seen in correlation with his subsequent behaviour in prison – in particular the uncontested fact that no illicit material has ever been found on his person, despite his having been in prison for many years, escorted to countless court hearings and undoubtedly subjected to a TSS on a great many occasions.

92. In fact, the authorities appear to have paid no attention at all to the applicant’s behaviour throughout the service of his prison sentence; rather, to the contrary, their responses suggest that the legal provisions prescribe a TSS in certain types of situations without any discretion for the taking into account of the particular circumstances (see paragraph 18 above). Consistent with this assessment was the position taken by the PPS – namely, that a concern that a prisoner held illicit objects justified his or her TSS needed no support in any specific circumstance (ibid.) – and the assertion by the Constitutional Court in its decision of 28 June 2022 that the applicant’s past behaviour provided no guarantee as regards his future behaviour (see paragraph 20 above).

93. Moreover, to the extent any justification should be proposed for the need to search the applicant by referring to the fact that he had just consulted with or been in the presence of his lawyers, this amounts to presuming illicit dealings with them and viewing his contacts with them in the same light as his contacts with any other person, despite the lawyers’ added deontological duties and responsibilities.

94. With regard to any need to search the applicant, the Court also finds relevant the uncontested fact that both his stay in prison and his movements outside of it are subject to a number of complex and strict security arrangements aimed at limiting the risk of his coming into possession of anything prohibited. However, as a result of the applicable domestic rules and the manner in which the domestic authorities have exercised their authority under those rules, this aspect of the case has had no impact on the practice of the TSS in respect of the applicant.

95. As regards the fact that in the course of his transfers between prison facilities the applicant would be subjected to a TSS several times in one day (as was the case, for example, on 22 July 2021 – see paragraphs 17 and 75 above), this practice has been criticised by the CPT, which in its most recent report concerning Slovakia noted that a strip search constitutes a very invasive and potentially degrading measure, to be resorted to on the basis of an individual risk assessment (see paragraphs 51 and 92 of the report cited in paragraph 44 above).

96. As already noted above, the exact number of the instances in which the applicant has been subjected to a TSS cannot be established (see paragraph 60 above). In the Courts’ view, the absence of records in that respect (see paragraph 12 above) must be seen in correlation with the applicant’s unanswered objections to the legal regulation of the TSS as follows. Until the entry into force of the amendments to the 2014 Order and the PCGSA in 2017 and 2018 (see paragraphs 38 and 39 above), there were no specific rules to govern the TSS (see paragraph 10 above), the authorities relying on their general powers to regulate the conduct of inmates and to carry out searches of their person and belongings (see paragraphs 34 and 36 above). Moreover, even the 2018 amendment contains no provisions concerning the duty in the course of a TSS to make a squat. Such lack of rules and, by extension, records inherently provides room for irregularities and arbitrariness.

97. Nevertheless, as also already noted above, it cannot be doubted that the TSSs have been performed on the applicant frequently and great many times (see paragraphs 60 and 91 above). In more concrete terms, he would have been in situations in which a TSS was practiced de facto or on the basis of a specific legal provisions since 2008 and such situations would present themselves about 1,500 times, while in most of them a TSS was prescribed both before and after the situation (see paragraph 13 above).

98. The Court observes that the actual performance of a TSS is subject to rules and limitations for the safeguarding of the rights and interests of the searched inmates (see paragraphs 37 and 40 above) and that the applicant has had no objection as to the adherence to these arrangements in his case.

99. However, this changes nothing in the reality that for an extensive period of time, and despite a complex set of other security arrangements, the applicant has been systematically subjected to TSSs in the absence of convincing security needs (see Van der Ven, cited above, §§ 61 and 62).

100. The Court therefore finds it understandable that the applicant might feel that he has been the victim of arbitrary measures (see Frérot v. France, no. 70204/01, § 47, 12 June 2007) and that this feeling might be aggravated by the fact that any remedy he has made use of has been rejected without his substantive arguments having in fact been given any individual consideration (see, mutatis mutandis, Maslák (no. 2), cited above, § 167).

101. In the Court’s view, the combination of these effects resulted in a degree of humiliation exceeding the – unavoidable and hence tolerable – level that strip-searches of prisoners inevitably involve.

102. The Court accordingly concludes that, in the particular circumstances of the present case, the practice of TSSs to which the applicant has been subjected throughout the service of his prison sentence amounted to degrading treatment within the meaning of Article 3. There has therefore been a violation of that Article.

103. However, it considers that the level of severity required to constitute “inhuman” treatment has not been attained in the instant case (see Frérot, cited above, § 48).

4. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

104. The applicant complained that subjecting him routinely to a TSS and inspecting his documents prior to and following consultations with his lawyers between January and March 2019 had violated his rights under Article 8 of the Convention, the relevant part of which reads as follows:

“1. Everyone has the right to respect for his private ... life, ... and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

105. Seeing that the Court has considered the issue of the TSSs under Article 3 of the Convention and has found a violation of that provision, it is unnecessary to examine it also under Article 8 of the Convention (see Frérot, cited above, § 49).

1. Admissibility

106. As to the complaint concerning the inspection of the applicant’s documents, it has not been disputed and the Court accepts that it falls within the ambit of the applicant’s right to respect for private life and correspondence within the meaning of Article 8 of the Convention.

107. The Court finds that the complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

2. Merits
   1. Parties’ arguments

108. The applicant complained that, when he had engaged in consultations with his lawyers in Košice Prison in January, February and March 2019, documents containing his notes for and from his lawyers had been inspected. In his subsequent observations before the Court, he pointed to the 2012 instruction of the governor of Košice Prison under which special attention was to be paid to the content of his correspondence (see paragraph 28 above). The lack of detail in his submissions (for example, as regards the duration of such searches) could not be held against him, since under prison rules he was not allowed to wear a watch. A search of his person would involve three officers – two searching him and one inspecting his documents. Such inspections of documents were common and there was no legal provision prohibiting the authorities from examining the contents of his papers. The search had taken place even though nothing illicit had ever been found on him and the documents in question had concerned privileged consultations with his lawyers.

109. The Government questioned whether there had been an interference with those of the applicant’s rights that were protected under Article 8 of the Convention. His submissions had been general and abstract. Any inspection of documents in the context complained of would have been treated under the rules of the EPSA and PCGSA governing searches of personal belongings for the presence of any illicit material. There would have been no reason for the searching officers to examine and analyse the content of the inspected documents.

2. The Court’s assessment

110. The Court reiterates that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention, save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention. While detention, like any other measure depriving a person of his or her liberty, entails various limitations on his or her rights and freedoms, that person does not forfeit his or her Convention rights merely because of his or her status as a detainee, including the rights guaranteed by Article 8 of the Convention; thus, restrictions on those rights must be justified in each case (see, for example, Maslák (no. 2), cited above, § 138, with further references).

(a) Interference

111. The Court notes that neither the domestic authorities nor the Government have contested the fact that the applicants’ documents were inspected, the Government addressing rather the intensity of that inspection, which in the Court’s view is a matter concerning its proportionality, to be addressed in the assessment of its necessity.

112. In the circumstances, the Court finds that there has been an interference with the applicant’s rights to respect for private life and correspondence.

(b) Lawfulness and legitimate aim

113. The legal basis for the contested interference is provided in the EPSA, the PCGSA and the 2014 Order (see paragraphs 34 to 43 above).

114. In sum, the Court is satisfied that the interference complained of was in accordance with the law within the meaning of Article 8 § 2 of the Convention.

115. It likewise has no difficulty in accepting that the impugned measures were in the interests of prison security and the prevention of disorder in prisons, which corresponds to the legitimate aims of “prevention of disorder or crime” and the “protection of the rights of others” mentioned in Article 8 § 2 of the Convention.

(c) Necessity

116. According to settled case-law, the notion of necessity implies that an interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see, for example, Olsson v. Sweden (no. 1), 24 March 1988, § 67, Series A no. 130).

117. The focus of this part of the application is fourteen individual instances of the applicant’s documents being inspected in Košice Prison on the occasion of consultations with his lawyers between January and March 2019 (see paragraphs 15 and 17 above).

118. The Court refers to the general principles concerning correspondence between lawyers and their clients, as summarised in its judgment in the case of Michaud v. France (no. 12323/11, §§ 117-119).

119. It has also been recognised that some measure of control over prisoners’ correspondence is not of itself incompatible with the Convention. However, exchanges between a lawyer and his detained client enjoy privileged status under Article 8. In particular, this means that prison authorities may only open a letter from a lawyer to a prisoner if they have reasonable cause to believe that it contains an unlawful element undetected by the normal means of detection. Appropriate safeguards must be provided to prevent the authorities reading such correspondence – for example by opening the envelope in the presence of the prisoner. The reading of a prisoner’s mail to and from a lawyer, on the other hand, should only be permitted in exceptional circumstances, when the authorities have reasonable cause to believe that the privilege is being abused in that the contents of the letter endanger prison security or the safety of others or are otherwise of a criminal nature. What may be regarded as “reasonable cause” will depend on all the circumstances, but it presupposes the existence of facts or information which would satisfy an objective observer that the privileged channel of communication was being abused (see Laurent v. France, no. 28798/13, § 44, 24 May 2018, with further references).

120. As to the facts of the present case, the Court observes that, pursuant to an instruction issued by the governor of Košice Prison, special attention was to be paid to monitoring the applicant’s correspondence and that this attention was not limited to detecting the presence of prohibited objects or substances, but extended also and specifically to prohibited information (see paragraph 28 above). In that regard, the Court notes in the first place that the EPSA specifically excludes inspections of an inmate’s correspondence with his or her lawyer (see paragraph 42 above). The Government for their part argued that the search of the applicant’s documents had been subject to the rules on the searching of personal belongings (see paragraph 109 above). However, they have offered nothing to show how those rules could be implemented in line with the said instruction of the prison governor, while at the same time respecting the protection afforded to correspondence with a lawyer in situations when, as in the applicant’s case, the personal belongings to be inspected included such correspondence.

In these circumstances, the Court accepts that the contested inspections of the applicant’s documents concerning his consultations with his lawyers entailed at least some degree of inspection of their contents.

121. As regards the existence of any “reasonable cause” for believing that the applicant’s documents contained any unlawful element within the meaning of the Court’s case-law, it notes first of all that the documents concerned the applicant’s consultations with his lawyers, that his lawyers were subject to deontological rules and that there has not been any suggestion or other indication of any transgression against those rules.

122. Furthermore, the consultations took place in a room equipped with a CCTV camera, with the applicant being separated from his lawyers by bars (see paragraph 74 above). This in the Court’s view by definition reduced any likelihood that the applicant’s interaction with his lawyers would involve any unlawful element.

123. In addition, the Court again notes that even though the applicant had been in prison and as such in contact with lawyers for many years, no prohibited objects or substances have ever been found on him.

124. In view of the above, the Court finds that no reasonable cause has been shown to have existed that would satisfy an objective observer that the applicant’s documents contained an unlawful element or that the privileged channel of communication with his lawyers was being abused in any other way.

125. In addition, the Court notes that, as submitted by the applicant and not contested by the Government, the inspections of his documents were carried out, together with his TSS, by three officers. Any possibility for him to ensure that the inspection would not entail an examination of the contents of his documents must in such circumstances have been practically obliterated. Moreover, as was the case in relation to the TSSs (see paragraph 100 above), any remedy the applicant made use of was rejected without his substantive arguments having in fact been given any individual consideration. The inspection of the applicant’s documents accordingly cannot be said to have been accompanied by appropriate safeguards.

126. In the light of the foregoing, the Court concludes that the inspection of the applicant’s documents in connection with his consultations with his lawyers between January and March 2019 did not meet any pressing social need and was therefore not “necessary in a democratic society” within the meaning of Article 8 § 2.

127. There has accordingly been a violation of Article 8 of the Convention as regards the inspection of the applicant’s documents on the occasions when he consulted with his lawyers in Košice Prison between January and March 2019.

5. REMAINING COMPLAINTS

128. Lastly, in connection with his complaint about the refusal to release one of his hands from the SRD on 22 July 2021, the applicant invoked in substance also his rights under Article 8 of the Convention and complained that he had been denied an effective remedy for his remaining complaints, in violation of his rights under Article 13 of the Convention.

129. The Government argued that the contested use of the SRD on the applicant had been justified in terms of paragraph 2 of Article 8 of the Convention and, referring to their arguments as regards all of the applicant’s substantive complaints, contended that they were not arguable for the purposes of Article 13 of the Convention. At any rate, in the Government’s submission, the applicant had had at his disposal remedies compatible with the requirements of that provision – in particular an action for the protection of personal integrity and the remedies before the prison administration and the PPS and, ultimately, before the Constitutional Court.

130. The applicant disagreed, reiterating the relevant part of his arguments under Article 3 of the Convention and also those in relation to the action for the protection of personal integrity under Article 35 § 1 of the Convention, referring moreover to the Court’s findings as to the functioning of the remaining remedies in Maslák (no. 2) (cited above, §§ 167-68).

131. Having regard to the facts, the submissions of the parties, and its other findings in this judgment, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine the admissibility and merits of the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

6. APPLICATION OF ARTICLE 41 OF THE CONVENTION

132. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

1. Damage

133. In applications nos. 55792/20 and 35253/21, the applicant claimed 500,000 euros (EUR) in respect of non-pecuniary damage. In application no. 41955/22, he claimed EUR 5,500 under the same head.

134. The Government contested both claims as overstated.

135. The Court awards the applicant EUR 20,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable.

2. Costs and expenses

136. In applications nos. 55792/20 and 35253/21, the applicant also claimed EUR 2,349.15 for legal fees and translation costs in the proceedings before the Constitutional Court and the Court, supporting the claim in respect of legal fees by furnishing copies of itemised bills from his lawyer. In application no. 41955/22, the applicant claimed EUR 1,604.43 under the same heads. This claim was supported by itemised bills and requests for payment.

137. The Government objected that the applicant had failed to show that he had actually paid the bills from his lawyer and argued that, in the constitutional proceedings in application no. 55792/20, he had in fact been represented by a lawyer different from the one who had issued the submitted bill.

138. At the same time, the Government stated that they had no objection to the claims in respect of translation costs.

139. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).

140. The Court observes that the applicant has had legal representation throughout all the domestic proceedings as well as before the Court and that, through his legal representation, he has been quite active in asserting his Convention rights both domestically and before the Court. There can thus be no doubt that the legal services, the costs of which he now seeks to have compensated, were actually provided. The Court finds it natural that such legal services are subject to remuneration, as specified in the submitted bills, the amount of which the Court finds reasonable. At the same time, in the absence of any grounds for doubting the veracity of the bills issued to the applicant in the present case, the Court finds it unclear who represented the applicant in respect of his constitutional complaint in application no. 55792/20 (see, mutatis mutandis, Ringier Axel Springer Slovakia, a.s. v. Slovakia (no. 3), no. 37986/09, § 96, 7 January 2014).

141. Regard being had to the violations found (see paragraphs 102 and 127 above), the Court considers it reasonable to award the sum of EUR 3,500 covering costs under all heads, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT

1. Decides, unanimously, to join the applications;
2. Declares, unanimously, admissible the complaints (i) under Article 3 of the Convention as regards the systematic practice of conducting thorough strip searches on the applicant and (ii) under Article 8 of the Convention as regards the inspection of the applicant’s documents on the occasions when he consulted with his lawyers in Košice Prison between January and March 2019;
3. Declares, unanimously, inadmissible the complaint under Article 3 as regards the refusal to release one of the applicant’s hands from the special restraining device during the break in a court hearing on 22 July 2021 in order to enable him to use the toilet;
4. Holds, unanimously, that there has been a violation of Article 3 of the Convention as regards the systematic practice of conducting thorough strip searches on the applicant;
5. Holds, unanimously, that there has been a violation of Article 8 of the Convention as regards the inspection of the applicant’s documents on the occasions when he consulted with his lawyers in Košice Prison between January and March 2019;
6. Holds, by six votes to one, that there is no need to examine the admissibility and merits of the remaining complaints;
7. Holds, unanimously,

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,500 (three thousand and five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

8. Dismisses, by six votes to one, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 12 December 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Ilse Freiwirth Ivana Jelić
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Serghides is annexed to this judgment.

PARTLY DISSENTING OPINION OF JUDGE SERGHIDES

1. The present case raises questions under Articles 3, 8, 13 and 35 § 1 of the Convention, in connection with (i) a practice of systematic thorough strip searches applied to the applicant, who has been serving a long prison sentence for violent organised-crime offences; (ii) individual instances of inspecting his private documents concerning consultations with his lawyers; and (iii) an individual incident where he was unable to make use of the toilet during a break in a court hearing on account of a special device restricting his movement.

2. I agree with all points of the operative provisions of the judgment apart from points 5 and 7, where it is held that there is no need to examine the admissibility and merits of the remaining complaints and that the remainder of the applicant’s claim for just satisfaction is dismissed.

3. The relevant part of the judgment concerning point 5, under the fifth heading of “Remaining complaints” is cited below verbatim:

“128. Lastly, in connection with his complaint about the refusal to release one of his hands from the SRD on 22 July 2021, the applicant invoked in substance also his rights under Article 8 of the Convention and complained that he had been denied an effective remedy for his remaining complaints, in violation of his rights under Article 13 of the Convention.

129. The Government argued that the contested use of the SRD on the applicant had been justified in terms of paragraph 2 of Article 8 of the Convention and, referring to their arguments as regards all of the applicant’s substantive complaints, contended that they were not arguable for the purposes of Article 13 of the Convention. At any rate, in the Government’s submission, the applicant had had at his disposal remedies compatible with the requirements of that provision – in particular an action for the protection of personal integrity and the remedies before the prison administration and the PPS and, ultimately, before the Constitutional Court.

130. The applicant disagreed, reiterating the relevant part of his arguments under Article 3 of the Convention and also those in relation to the action for the protection of personal integrity under Article 35 § 1 of the Convention, referring moreover to the Court’s findings as to the functioning of the remaining remedies in Maslák (no. 2) (cited above, §§ 167-68).

131. Having regard to the facts, the submissions of the parties, and its other findings in this judgment, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine the admissibility and merits of the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).”

4. Regarding the Court’s decision that there is no need to examine the remaining complaints, as stated in the above extract from the judgment, I would argue that since these complaints were raised by the applicant, the Court had a duty to examine them. Failure to do so means that the applicant’s rights would not be afforded any protection whatsoever by the Court in the event of a violation. Like any other Convention right that has allegedly been infringed, the rights in question must be examined and given practical and effective protection by the Court, as required by the principle of effectiveness (both as a norm of international law and a method of interpretation), the principle of indivisibility of rights, and by the right of individual application, which is the cornerstone of the Convention.

5. Ultimately, the Court cannot afford an applicant effective protection if it decides, as in the present case, not to examine the relevant complaints. I respectfully disagree with the Court’s holding in paragraph 131 that it has considered the main legal questions, without examining the remainder of the complaints, as the other complaints could also raise main legal questions. In any event, I am against the idea of distinguishing between “main” and “secondary” complaints. In my humble submission, a refusal to examine an alleged violation because it is “secondary”, in addition to what I have argued above, may amount to a denial of justice. It may run counter to the jurisdiction, task and role of the Court to interpret and apply the pertinent provisions of the Convention and the Protocols thereto, as provided by Article 32 of the Convention; it may show disregard for, and an absolute lack of protection of, the Convention rights which are not examined; it may be considered arbitrary and against the rule of law; and it may undermine the legitimacy of the Court and the trust of the public that should be placed in it. Consequently, it is not compatible with the duty of the Court, as the guardian of human rights in Europe, to first select certain complaints as worthy of consideration, and after deciding on them, to be content that it has sufficiently performed its duty and therefore to opt out of considering the remainder.

6. I will now address a possible counter-argument in this context, namely, that human dignity levels out all human rights without the need to examine them separately. Human dignity is enshrined in every Convention provision safeguarding human rights and is part of the core or essence of each human right. While the concept of human dignity remains the same across all provisions of the Convention, its scope varies from Article to Article. This variation arises because different rights pertain to different contexts, requiring distinct protections and, consequently, interpretations. Each right has its own complexity and specificity as well as its own purpose to serve. Thus, the form that human dignity takes under Article 3 is not the same as its form under Article 8, nor is it the same as the form it takes in relation to the procedural right guaranteed by Article 13. So it would not be correct to argue that human dignity levels out all human rights without the need to examine them separately. This argument is not raised in the judgment or elsewhere, to the best of my knowledge, but I felt the need to use it as a counter-argument and respond to it. By doing so, I hope to reinforce my position that all the complaints should have been examined and decided upon by the Court in the present case.

7. As is clear from paragraph 131 of the present judgment (text quoted above), in its decision not to address the remainder of the complaints, the Court refers, in a parenthesis, to paragraph 156 of the Grand Chamber judgment in Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania ([GC], no. 47848/08, ECHR 2014), without making any further comment. It is my humble view that what the Grand Chamber decided in that case, based on the facts of that case, the submissions of the parties and its own findings, namely, not to give a separate ruling on certain complaints, was not meant to establish a recommended practice for the Court in future cases, that is to say, to arbitrarily pick and choose complaints on which to decide while not considering the rest. It neither intended to establish or enunciate a legal principle nor to make an authoritative interpretation and application of a Convention provision. Consequently, the Court in the present case should not simply parenthetically refer to Valentin Câmpeanu in order to justify its lack of consideration of the complaints it deems to fall outside the main legal questions of the case. Even if it could be argued that ultimately there is now an established practice of the Court, which consists in picking and choosing the complaints which it considers as “main” and leaving the other complaints without any consideration at all, such practice is, in my humble submission, erroneous for the above reasons and should be abandoned.

8. Lastly, a finding that there have been further violations in respect of one or more of the remaining complaints would also be pertinent because it could be reflected in an increase in the amount awarded for non-pecuniary damage. That is why I also voted against point 7 of the operative provisions, dismissing the remainder of the applicant’s claim for just satisfaction.