Strip Searching may Constitute Torture or other Cruel, Inhuman or Degrading Treatment or Punishment

Frerot v France [2007] ECHR Application No 70204/01 (12 June 2007)

In a judgment handed down on 12 June 2007, the European Court of Human Rights held that particular strip searches conducted on the applicant violated the prohibition on degrading treatment in art 3 of the European Convention on Human Rights (‘ECHR’).  Further, certain restrictions placed on the applicant’s correspondence violated the right to privacy protected by art 8 of the ECHR.


The applicant was a French national and former member of ‘Action Directe’ (an extreme left, armed movement), who had been incarcerated since 1987 in 13 different prisons.  In 1994, the applicant sought the annulment of certain provisions in a series of circulars from the Ministry of Justice that regulated strip searches and prisoners’ correspondence.  He claimed that the body search procedures annexed to a 1986 circular were contrary to human dignity and violated the French Code of Criminal Procedure.  That claim was dismissed by the Conseil d’Etat in 2000.

The proceedings here concerned particular strip searches at the Fleury-Mérogis and Fresnes prisons.  At Fleury-Mérogis, the applicant was forced to open his mouth during a strip search.  When he refused to do so, he was placed in a disciplinary cell.  Over the following months, he was made to open his mouth during a number of strip searches — imposed in various circumstances, and sometimes without warning.  While imprisoned in Fresnes, he was subjected to strip searches each time he left the visiting room.  These searches included a new requirement of ‘leaning forward and coughing’.  Refusal to do so resulted in his placement in a disciplinary cell.


The applicant lodged an application againstFrance, claiming violations of his rights under arts 3 (prohibition of inhuman or degrading treatment), 8 (right to respect for correspondence), 13 (right to an effective remedy) and 6 (right to a fair trial within a reasonable time).


Strip searches

The Court held that the body search procedure described in the 1986 circular was not generally inhuman or degrading.  Despite acknowledging that prisoners subjected to body searches might view the procedure as an attack on their dignity, the Court held that even full body searches might sometimes be necessary in a prison to assure security, defend order or prevent crime.

The Court examined the provisions of the circular, and noted the legitimate purposes that were said to justify the searches, such as ensuring that objects or toxic substances were not concealed.  It held that the overall strip search procedure, including the ‘lean forward and cough’ requirement (to permit visual inspection of the anus ‘in the specific case of a search for prohibited objects’) was lawful, but only if such searches were conducted where ‘absolutely necessary’ and where there were ‘serious reasons’ to suspect a prisoner was hiding an object or substance in that part of the anatomy.

However, the particular strip searches undergone by the applicant in Fresnes were held to be degrading treatment within the meaning of art 3.  Of the 13 prisons in which the applicant had been detained, Fresnes was the only prison to subject him to anal inspections.  Moreover, the practice of systematically subjecting each prisoner to such a search upon return from the visiting room reflected a presumption at Fresnes that all prisoners returning from the visiting room were concealing objects.

As such, the Court understood that prisoners like the applicant might feel as if they were victims of arbitrary measures.  The concomitant feelings of anxiety, inferiority and serious encroachment on personal dignity during the searches amounted to a degree of humiliation that exceeded reasonable procedures and amounted to 'degrading treatment’ within the meaning of art 3.

The Court awarded the applicant €12,000 for non-pecuniary damage.


The Court found a violation of art 8 of the ECHR in relation to restrictions on the applicant’s correspondence.  The decision of the Governor of Fleury-Mérogis prison not to deliver a letter from the applicant to a friend at another prison, on the basis that it ‘did not correspond to the definition of the notion of correspondence’ was an ‘interference’ with the applicant’s art 8 right.  That interference was unlawful, especially in light of the provision in the French Code of Criminal Procedure that, generally, ‘prisoners may write to any person of their choice, and receive letters from any person’.

Finally, the Court considered the definition of ‘correspondence’ in the circular to be incompatible with art 8.  By excluding ‘all letters … whose content does not specifically and exclusively concern the addressee’, an entire class of correspondence was unduly excluded.

Length of hearing

The Court held that six years of proceedings at the one level of jurisdiction was excessive, and did not satisfy the ‘reasonable time’ requirement in art 6.

Implications for the Victorian Charter

Section 32(2) of the Charter states that ‘[i]nternational law and the judgments of domestic, foreign and international courts and tribunals relevant to a human rights may be considered’ when interpreting a Charter provision.

The Court’s decision in Frérot may be relevant to a Victorian court’s consideration of ss 10 (protection from torture and cruel, inhuman or degrading treatment), 13 (right not to have correspondence unlawfully or arbitrarily interfered with), and 22 (humane treatment when deprived of liberty) of the Charter.

The Court’s close scrutiny of the Ministerial circulars and conditions of the strip searches may assist Victorian courts when they are required to balance the legitimate safety and security purposes of body searches with the necessity of intrusion into the most intimate areas of the person.  The Court’s supplementary finding regarding the length of proceedings may also be of relevance when considering the right to a fair hearing under s 24.

Rebecca Pereira, Human Rights Law Group, Mallesons Stephen Jaques