Communicated on 18 September 2015

THIRD SECTION

Application no. 47183/13 Nauris RAKUZOVS against Latvia lodged on 1 August 2013

STATEMENT OF FACTS

The applicant, Mr Nauris Rakuzovs , is a Latvian national, who was born in 1984 and is detained in Valmiera .

A. The circumstances of the case

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

On several occasions between 2009 and 2011 the applicant was escorted from the prison where he was held in detention to court hearings. These transfers were usually accompanied by strip searches carried out either by the prison officers at the premises of the prison or by the escorting officers at the premises of the respective courts.

On 23 February 2011 the applicant lodged an application to the administrative court, in which he complained about strip searches carried out on six different occasions. In particular, he objected to the frequency of the searches, the lack of their justification and the manner in which they had been conducted. He submitted that the escorting officers had not drawn up the search protocols, he had been compelled to stand in embarrassing positions and to perform certain exercises, his genitals had been touched and he had been derided. He argued that these searches had been humiliating and degrading, thereby contravening Article 95 of the Constitution of Latvia and Article 3 of the Convention. He also referred to the Court ’ s cases of Iwańczuk v. Poland (no. 25196/94, 15 November 2001), Frérot v. France (no. 70204/01, 12 June 2007) and Lorsé and Others v. the Netherlands (no. 52750/99, 4 February 2003) noting that in those cases a violation of Article 3 of the Convention had been found due to the lack of the necessity of the strip searches and the fact that they had been carried out in the presence of other persons. On 6 April 2011 the Administrative District Court ( Administratīvā rajona tiesa ) instituted administrative proceedings with regard to three of those searches, namely, those that had been carried out on 9 December 2009, 8 June 2010 and 11 June 2010. In relation to the remainder of the strip searches the court found that the compulsory pre-trial procedure had not been complied with.

On 30 May 2011 the applicant lodged a second application about a strip search that had been carried out on 22 February 2011. On 20 July 2011 he lodged another application concerning a strip search that had been carried out on 8 June 2011. With regard to these latter two strip searches the applicant added that they had been conducted in the presence of other prisoners and escorting officers. He also noted that in response to his protests he had been threated to be undressed by force. All three applications were merged in one set of administrative proceedings no. A420533911.

20 June 2012 the Administrative District Court decided to terminate the proceedings. It noted that it only had competence to adjudicate on the legality of those searches if they constituted an action of a public authority ( faktiskā rīcība ) within the meaning of the Administrative Procedure Law ( Administratīvā procesa likums ). In that regard the court had to establish whether these searches significantly interfered (“ būtiski ierobežo ” ) with the applicant ’ s human rights. As the Administrative District Court considered that the strip searches complained of had been objectively justified on security grounds and that the manner in which they had been conducted did not go beyond what was required to ensure efficacy of those searches, it ruled that they did not constitute an action of a public authority.

In his ancillary complaint of 25 June 2012 the applicant additionally emphasised that his strip searching at every occasion of him being escorted to a hearing was unfounded and humiliating. He also underlined the degrading character of the searches due to being strip searched in the presence of other persons.

On 13 September 2012 the Administrative Regional Court ( Administratīvā apgabaltiesa ) agreed with the reasoning of the Administrative District Court and dismissed the applicant ’ s ancillary complaint.

In his further ancillary complaint to the Senate of the Supreme Court, dated 18 September 2012, the applicant argued that the Administrative Regional Court ’ s reasoning contravened the case law of the Supreme Court insofar as the humiliating nature of the strip searches was concerned. He again emphasised the fact the strip searches had been carried out in the presence of other persons, as well as pointed to the lack of the necessity to strip search him, as he was being transported from one secure location to another and as his behaviour had given no reason to suspect that he might be attempting to transport any of the prohibited objects.

On 5 November 2012 the Senate of the Supreme Court decided to remit the case for reconsideration by the Administrative District Court. Even though the Senate of the Supreme Court agreed that the strip searches had had a legitimate goal, namely, ensuring the public safety, and had not been carried out in an abusive manner, it considered that the lower courts had not sufficiently addressed the applicant ’ s allegation that the strip searches had been conducted in the presence of other persons.

On 27 February 2013, in a hearing before the Administrative District Court the applicant clarified that other persons had been present in all five strip searches complained of. In addition, he alleged that he had been searched in the presence of female prison officers and that the employees of the court and even passers-by could see him at the time of the searches. The applicant further alleged that his sexual organs and his food were inspected with the same gloves.

In order to clarify the facts, the Administrative District Court called eleven witnesses – seven escorting officers and four prisoners. On the basis of these testimonies the Administrative District Court in its decision of 13 May 2013 found that on the first three instances, namely, on 9 December 2009, 8 June 2010 and 11 June 2010, the strip searches had been carried out for two prisoners simultaneously. Hence, the court established that on those three occasions the applicant had been searched in the presence of one other prisoner and the officers conducting the search of that prisoner. With regard to the two subsequent searches that had taken place on 22 February 2011 and 8 June 2011 the Administrative District Court found that the evidence did not support the allegation that the applicant had been searched in the presence of other persons. The court also dismissed all other applicant ’ s claims about the allegedly inappropriate manner of the searches, such as the presence of female officers, exposure to the court ’ s staff and passers-by, unsanitary touching of his food, as unsubstantiated. When assessing whether the presence of additional persons at the time of the first three searches infringed the applicant ’ s rights guaranteed under Article 3 of the Convention the Administrative District Court attached particular weight to the fact that the applicant had only clarified that other persons had been present also during the first three searches on 27 February 2013, that is, when the case was re-heard by the Administrative District Court. From the fact the applicant had not explicitly pointed to this aspect neither in the pre-trial proceedings, nor at any earlier stage before the administrative courts, the Administrative District Court drew an inference that this particular aspect of the searches had not humiliated or debased the applicant. Accordingly, the Administrative District Court found that it could not establish a significant violation of the human rights guaranteed under Article 3 of the Convention (“ tiesa nekonstatē būtisku ... Konvencijas 3. pantā ... nostiprināto cilvēktiesību pārkāpumu ”). On these grounds, the Administrative District Court terminated the proceedings.

In his ancillary complaint of 27 May 2013 the applicant in a general manner indicated that the decision of the Administrative District Court was arbitrary. On 9 July 2013 the Senate of the Supreme Court with a final ruling dismissed the applicant ’ s ancillary complaint and upheld the Administrative District Court ’ s decision of 13 May 2013.

B. Relevant domestic law and practice

Article 95 of the Constitution of Latvia provides that the State has a duty to protect human honour and dignity. Torture or cruel or degrading treatment of a person is prohibited. No one can be subjected to inhuman or degrading punishment.

The Administrative Procedure Law that took effect on 1 February 2004 provides for the right to challenge administrative acts ( administratīvais akts ) and actions of public authorities before the administrative courts. S ection 1(3) of the Administrative Procedure Law defines an administrative act, inter alia , as “a decision ... [that] significantly interferes with the human rights of a person specially subordinated to a public authority.” T he Senate of the Supreme Court in its practice has established that the actions of public authorities have the same elements as the administrative acts, save that the former seek to create factual rather than legal consequences. Accordingly, the Senate of the Supreme Court has recognised that the administrative courts are only competent to examine prisoners ’ complaints about a ctions of the public authority they are specially subordinated to , if those actions significantly interfere with their human rights (this case law was reiterated and reinforced in the decision of 5 November 2012 , taken in the applicant ’ s administrative case no. A420533911).

COMPLAINT

The applicant complains that the strip searches carried out on him on 9 December 2009, 8 June 2010, 11 June 2010, 22 February 2011 and 8 June 2011) contravened Article 3 of the Convention.

QUESTION TO THE PARTIES

Has t he applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention? In particular, were the strip searches justified and were they carried out in an appropriate manner with due respect for human dignity and a legitimate purpose?