Going international

Strip searches that are not carried out in compliance with proper safeguards to protect the dignity of those being searched may attract remedies under international law. This occurred in Wainwright v United Kingdom [2006] ECHR 807 (26 September 2006), where the European Court of Human Rights awarded damages, which could not be obtained under domestic law.

Wainright concerned strip searches of visitors to a prison, carried out with the aim of preventing the entry of drugs. The officials who carried out the searches did not comply with rules that had been promulgated, and therefore they were not within the terms of Article 8, para 2, of the European Convention on Human Rights as being “necessary in a democratic society”. In reaching this conclusion the European Court noted that domestic law in the UK, as held in the House of Lords decision in this case, did not provide a remedy for negligent breach of privacy. This deficiency amounted to a breach of Article 13 of ECHR and the Court awarded damages. The actual sums were fairly modest, the Court noting that it does not make aggravated or exemplary damages awards.

In other countries, issues of this sort may be dealt with by the United Nations Committee on Human Rights, if the relevant domestic law did not provide a remedy. The International Convention on Civil and Political Rights has provisions concerning the right not to be subjected to inhuman or degrading treatment (Article 7), and the right to have one’s private life respected (Art 17). The First Optional Protocol to the ICCPR enables individuals claiming to be victims of violations of ICCPR rights to bring communications to the Human Rights Committee, which may, ultimately, “forward its views to the State Party concerned and to the individual” (Art 5 para 4). While this falls short of the corresponding declaration in Art 13 of ECHR that “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority …”, and Art 41 “…the Court [ECtHR] shall, if necessary, afford just satisfaction to the injured party”, the forwarding by the Human Rights Committee of its views is a significant matter.

In Taunoa v Attorney-General [2006] NZSC 30 (12 April 2006) the Supreme Court granted leave to appeal to four appellants who claimed that, as prisoners, they had been subjected to breaches of s 9 and 27 of the New Zealand Bill of Rights Act 1990, the questions being whether there had been such breaches and, if so, what remedy was appropriate. One of the preconditions for bringing a communication to the Human Rights Committee is that domestic remedies, if any, must be exhausted. So, if unsuccessful before the Supreme Court, Taunoa may enter the international arena.