Communicated on 30 August 2016

THIRD SECTION

Application no. 68613/13 L. against the Netherlands lodged on 23 October 2013

STATEMENT OF FACTS

1. The applicant, Ms L., is, or claims to be, a Zimbabwean national born in 1979. She lives in The Hague. She is represented before the Court by Ms G.E.M. Later, a lawyer practising in The Hague.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Factual background

3. The applicant claims that her husband was kidnapped and disappeared without trace and she and her daughter, the latter then only nine years old, were raped, and that these events left her severely traumatised and mistrustful of men. She arrived in the Netherlands in 2009.

4. The applicant lodged two unsuccessful requests for asylum and one ultimately unsuccessful request for a regular residence permit before the events complained of.

5. The applicant was placed in immigration detention ( vreemdelingenbewaring ) for removal purposes on 9 November 2011. On 27 February 2012, while in detention, she lodged her third asylum request. The applicant submits that it was only in the course of the ensuing proceedings that she was able to relate the events that had induced her to flee her country of origin, her substantive reasons for seeking asylum having remained obscured in the first two sets of proceedings by issues related to her having travelled under a false identity.

6. On 4 March 2012 the immigration authorities rejected the applicant ’ s asylum request. The applicant was at this time being held in the asylum application centre ( aanmeldcentrum ) at Schiphol (Amsterdam) Airport.

7. On 7 March 2012 the applicant was transferred to the detention centre ( detentiecentrum ) in Zeist. On arrival she was required to submit to a full body search ( visitatie ). She refused to cooperate. The applicant was taken to a solitary confinement cell where she was forced to the ground and stripped naked by two men and two women. While the men restrained her, face down on the floor, the women (or one of them) spread her buttocks for visual inspection of her anus. The applicant alleges that her menstrual tampon was removed and her vagina was also visually inspected.

8. The applicant was released on 16 April 2012 pursuant to a court order. Her third asylum request remained pending at the time when the application was submitted to the Court.

2. Complaint proceedings

9. On 14 March 2012 the applicant wrote to the Supervisory Board ( Commissie van Toezicht ) of the detention centre complaining, in so far as relevant to the case before the Court, about having been needlessly stripped naked in the presence of two men and two women and subjected to an inspection of her vagina and anus in the presence of one or more men.

10. On 17 March 2012 the acting governor of the detention centre submitted a reply. He stated that the applicant had a history of cooperating with full body searches, albeit under protest; her complete refusal on this occasion had therefore been unexpected. The applicant had been warned of the consequences should she persist in her refusal. She had nonetheless persisted, for which reason she had been placed in a solitary confinement cell; a full body search was standard procedure attending such placement. The presence of the two men – of which the applicant had also been given prior warning – had been made necessary by the lack of female staff at the time. The applicant had been asked to make three knee bends; she had refused to do so, and for this reason her gluteal cleft had had to be inspected in the manner described. The applicant ’ s vagina had not been touched.

11. Having held a hearing, the single-judge chamber of the Complaints Commission ( beklagcommissie ) of the Supervisory Board gave a decision on 14 June 2012 dismissing the complaint. In so far as relevant to the case before the Court, the decision found that the governor had had no alternative but to call on male staff members to assist the female staff and that the applicant had been given due advance warning.

3. Appeal proceedings

12. The applicant appealed to the Appeals Board ( beroepscommissie ) of the Council for the Administration of Criminal Justice and Juvenile Protection ( Raad voor Strafrechtstoepassing en Jeugdbescherming ). She invoked Article 3 of the Convention.

13. After holding a hearing and adjourning the case to seek additional information from the respondent authorities, the Appeals Board gave its decision on 17 April 2013. In so far as relevant to the case before the Court, it dismissed the applicant ’ s appeal. It found that the applicant had spent nine days in the asylum application centre , where a more open regime applied than in the detention centre . Upon her arrival in the detention centre the applicant had been required to undergo a full body search, but had refused to cooperate. The applicant had been duly warned of the consequences should she persist in her refusal.

14. The governor had been fully entitled to order the applicant to be placed in solitary confinement; a full body search before such placement was standard practice. There had been no reason to expect the applicant to refuse to cooperate, considering that she had a history of cooperating in the end, albeit under protest, and had not given any reason for her refusal. Calling on the assistance of two male staff members could not be considered an improper measure given that the applicant had been given prior warning that this might happen and no female staff members were available at the time.

15. It was accepted that the applicant ’ s vagina had not been inspected. The applicant ’ s gluteal cleft had been visually inspected, but this was not disproportionate given that she had refused to make the knee bends requested.

16. The decision was transmitted to the applicant ’ s counsel by letter of 23 April 2013.

B. Relevant domestic law and practice

17. Section 29(1) of the Prisons Act ( Penitentiaire Beginselenwet ) empowers the governor of an institution for detention to subject detained persons to inspection of their bodies or clothing inter alia upon their arrival in the institution. Section 29(2) provides that a body search shall comprise external visual inspection of orifices and cavities. Section 29(3) requires body searches to be carried out in an enclosed space and in so far as possible by persons of the prisoner ’ s own gender.

18. It appears from the documents submitted that official instructions require detainees who have been in the application centre for longer than a day to undergo a full body search upon arrival in the detention centre. The reason given is that detainees enjoy greater freedom in application centres than in detention centres, and thus the chance that contraband items may be smuggled in is correspondingly greater.

COMPLAINT

19. The applicant complains under Article 3 of the Convention that the full body search which she was forced to undergo had been unnecessary and amounted to inhuman and degrading treatment.

20. She complains under Article 8 that the interference with her bodily and mental integrity resulting from the full body search constitutes a violation of her right to respect for her private life.

21. She complains under Article 13 that the way her complaint was handled justifies doubts as to whether the procedure before the Complaints Commission of the Supervisory Board and the Appeals Board of the Council for the Administration of Criminal Justice and Juvenile Protection can properly be considered an effective remedy.

QUESTION TO THE PARTIES

Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention (compare ValaÅ¡inas v. Lithuania , no. 44558/98, ECHR 2001 ‑ VIII) ?