FIRST SECTION

Application no. 1574/13 Egon JAEGER against Estonia lodged on 18 December 2012

STATEMENT OF FACTS

The applicant, Mr Egon Jaeger, is an Estonian national, who was born in 1987. He is currently serving a prison sentence.

A. The circumstances of the case

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

On 10 October 2010 the applicant came from a walk together with other detainees. When he entered the living section two prison guards searched him in the staircase of the building. He was requested to lower his trousers and underpants two times and lift his sexual organ. A guard touched his underpants to find out whether any tobacco products had been hidden therein. According to the applicant he was in sight of other detainees since the door of the staircase where the search was performed had a transparent window. Another door leading from the staircase to a corridor of the living section also had a transparent window and detainees or female prison officers could have seen him through it or entered the staircase at any moment.

The applicant claimed from the prison administration 25,000 kroons (EEK) (corresponding to approximately 1,600 euros (EUR)) for the non-pecuniary damages he had allegedly sustained. He named three detainees who had been behind him when he had entered the building and had been searched.

The prison administration rejected the applicant ’ s claim. Relying on the statements of one of the prison guards involved, the administration found that the search had been conducted in private and not in sight of other detainees. According to the prison guard ’ s written statements the detainees had entered the staircase one by one. One guard had searched their jackets and the other one searched the detainees. In case of suspicion the door had been closed in order to create a private space and the detainee had been requested to lower his trousers. Only the detainee to be searched and two guards had been in the staircase.

The applicant lodged a complaint with the Tartu Administrative Court . He reiterated his claim, named three detainees who had seen his search and included written statements from two of them.

By a judgment of 21 September 2011 the Administrative Court rejected the applicant ’ s claim. It found reliable the statements of the prison guard according to whom the applicant ’ s privacy had been respected.

The applicant appealed to the Tartu Court of Appeal. At the Court of Appeal hearing he submitted that the windows of the doors of the staircase had measured 1 m by 30 cm and that some days after his complaint to the Administrative Court they had been covered by metal sheets to prevent other detainees from seeing the searches.

By a judgment of 7 November 2011 the Tartu Court of Appeal dismissed the applicant ’ s appeal. It established that the search had lasted for a few minutes at most and noted that the applicant had not been sure whether any other detainees had been in the staircase. He had been unable to explain from where exactly had the detainees named by him seen his search. The Court of Appeal concluded that his privacy had not been violated. It further found that in order to effectively manage a large number of detainees, the prison also had to have a possibility to carry out a body search of a detainee, in case of need, in a location other than a private room designated for that purpose. In order to conduct such a search it was sufficient that the authorities had a suspicion that a detainee coming from a walk had hidden cigarettes – that were prohibited in prison – in his underwear.

By a judgment of 17 October 2012 the Supreme Court dismissed the applicant ’ s appeal. It upheld the Court of Appeal ’ s finding that the applicant ’ s privacy had not been infringed. One of the three judges delivered a separate opinion. He considered that it was not decisive whether the third persons in fact saw a detainee ’ s body search. It could not be presumed that a person who was being searched was able to establish at the same time whether and who saw the search and what exactly had been seen. Body search in a situation and location where it was not guaranteed that third persons did not see the person ’ s nudity caused him to feel that his privacy was not respected and that other persons could see the procedure being performed. Such a situation damaged the person ’ s dignity and could cause the feelings of insecurity, anguish and degradation.

B. Relevant domestic law

Regulation no. 23 of the Minister of Justice on the Procedure for Supervisory Control over the Execution of Imprisonment and Provisional Custody ( Vangistuse ja eelvangistuse täideviimise üle järelevalve korraldamine ), adopted on 1 April 2003 and as in force at the material time, provided as follows:

Section 47 – Search of a person

“(1) A person may be searched fully or partly.

(2) A person ’ s full search shall be conducted in a place where his privacy is secured.

(3) A person shall be searched by persons of the same sex.

... ”

COMPLAINT

The applicant complains that his body search was carried out in a degrading manner in breach of Article 3 of the Convention.

QUESTIONS TO THE PARTIES

Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention, considering the circumstances in which his body search was carried out? Has there been a violation of his right to respect for his private life, contrary to Article 8 of the Convention?