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Author: Pavel Doubek (Czech scholar and lawyer formerly working at Czech NPM)^[i]

The period immediately following deprivation of liberty is when the risk of intimidation and physical ill-treatment is greatest. Even a person is accused and arrested for breaking the laws, it doesn’t mean the police, who as law enforcing agency can lawfully deprives a suspect’s liberty, could violate his or her other basic rights. Therefore, the National Preventive Mechanism (NPM) should regularly monitors the procedures of police detention and all places where people are detained under police power.

Since 2006, the Czech NPM has visited more than 96 police departments with more than 300 police cells. Each visit is unannounced and begins with a general inspection of the police cell, the rooms used for body searches and other adjoining premises. Lawyers from the NPM inspect also the minimum equipment of the police cell, cell’s regime and the way it is organised, relevant records of the detainees and interview the duty officers or police officers responsible for guarding the cells and the persons placed in the cells. In addition to all the above premises within the police departments, the personal liberty may be restricted also in police vehicles, so this should be included in the so called “places of detentions” that the NPM monitors.

Fewer than expected cases of ill-treatment at police departments

In fact, torture and ill-treatment has not been found by the NPM in our police cells in the recent years. This fact can be partly attributed to the well-established institutional safeguards. First of all, there is a clear and detailed legal framework governing the conditions of a police cell and use of police’s power. The detainees have the right to lodge complaints against torture and ill treatment with several supervisory authorities, such as the Ombudsman, the Public Prosecutor, police inspection agencies ^[ii], NGOs, etc. The NPM’s role is crucial to complement these efforts and ensure consistent state practices in the long run: Police officers are regularly trained by the NPM on how to prevent torture, and since they are aware that the NPM visits the police cells regularly, it’s less likely that they dare to commit such deeds. Besides, since the Czech NPM has been established as a part of the Ombudsman Institution, it can gather important information and knowledge from detainees’ complaints addressed to the Ombudsman, and can therefore better prepare its strategies to fulfill its preventive mandate and focus on the most common and systematic problems.

Two previous cases of ill-treatment, taking place in 2010, worth mentioning. The first case concerns a schizophrenic patient who was detained in a police cell and was deprived of any medical help. The police officers knew that the detainee was suffering from a serious illness, yet did not provide him with any medical treatment or ensure that he was given the medications he was taking. The second case concerns a detainee in a police cell who was held with hands behind his back against a circle placed on the wall (that is, with hands necessarily moved upwards) and with his feet tied with a lashing belt. This case was brought before the European Court of Human Rights in Strasbourg (Kummer v. The Czech Republic) and resulted in the Czech Republic being convicted for violating Article 3 of the Convention (prohibition of torture).

Although the cases revealed were fewer than expected, the Czech NPM didn’t slow down its pace to find out and eliminate all the potential loopholes that may increase the risk of ill-treatment. The Czech NPM found various deficiencies during its visiting, I can name for instance, failure to provide detainees with a statement of their rights, not guaranteeing access to the lawyer, confiscating the detainee’s medical equipment (e.g., crutches and glasses), the unavailability of basic toiletries (e.g. toilet paper, toothbrush), failure to provide warm meals, etc.

The Czech NPM also pays attention to the treatment of foreigners detained in police cells and detention centres and the deportation processes of illegal migrants, especially the treatment during police escort. Migrants are especially vulnerable for various reasons: they could be subject to human trafficking or other criminal activities occurred during their journey; when facing police, the language barrier makes it much more difficult for them to understand and claim their rights or express their medical needs; and they are often more economically disadvantaged.

A practice in dispute: body searches in police cells

As a society’s notion of human dignity and rights are gradually advancing, many lawful procedures and practices established for years are not without disputes from today’s point of view. It is common police practice in the Czech Republic, that prior to the placement of the detainee in the police cell, he or she has to be subjected to a body search. Between 2015 and 2016, the NPM revealed that in many police departments, persons are required to undergo full strip search before being placed in the cell. A body search involves direct physical contact or direct observation of the person’s naked body, including an examination of the person’s clothing and items at the time of the search.

The Czech NPM believes the search of the body significantly impairs the human dignity of the detained person and increases the risk of ill-treatment. Even though the Police justified this practice for security reasons, but NPM was of the opinion that the less invasive body search procedure should be applied. It suggested that detained persons who are searched should not normally be required to remove all their clothes at the same time, e.g. a person should be allowed to remove clothing above the waist and get dressed before further clothing is removed. The police can only depart from the recommended procedure only in extraordinary and justified cases. If this happens, such a procedure must be adequately justified and documented in police records.

However, the Czech NPM revealed that in some police departments, each person is subjected to a full strip search before being placed in a cell, no matter what kind of crime s/he is accused and how likely s/he will have aggressive behaviours. They are even asked to perform one or several squats so their anus can be checked. The NPM strongly condemned the blanket practice of strip searches with squats and argues, referring to the standards developed by the European Committee for the Prevention of Torture (CPT), that it may be carried out only when there are reasonable grounds to suspect that a detained person may have hidden on him/her items that may be used to harm him-/herself or others or that may be evidence of a crime and such a search is necessary in order to detect these, an ordinary search being unlikely to result in their discovery. The NPM thus recommended to the Police President that the police shall abandon the practice of blanket use of squats during the body search and issue a written instruction that clearly defines the conditions under which a thorough strip search with squats can be used so as to reduce the arbitrariness of the police.

These findings, together with NPM’s recommendations, were elaborated in special NPM report and sent to the Police President of the Police of the Czech Republic. The NPM provided a Police President with a period of 30 days for his statement. However, the Police President replied the NPM with a short letter in which he refused to comply with the NPM’s above two recommendations. He argued that the current law provides detainees with sufficient human rights guarantees and that it is not appropriate to issue an instruction that addresses all possible situations that may occur. On the contrary, he suggested that it would be better to give the police officers free discretion to assess the necessity and proportionality of the measures chosen.

Since the NPM has no power to legally enforce its recommendation, it can only try to influence the police’s mindset through constructive dialogue. While the practice of body searches is not yet considered by the authorities as a problem to be solved, the NPM still endeavours to introduce a more progressive idea to the society by comparing and analyzing the laws and practices of other countries, the international human rights standards, the binding judgments of the ECtHR and expert analysis, etc.  By so doing, the NPM has created an opportunity for people to talk and rethink about human dignity in the Czech Republic.

Note:

1. This article is one of the NPM TRAVELBOOK series written by Mr Pavel Doubek and invited by Covenants Watch (CW), Taiwan. The original text was written in English and was translated by Yi-Ching Tsai, CW’s researcher. For more information about the column, please read the preface to the column.
   
   
2. In Taiwan, the oversight over the police detention is provided by the National Police Agency and the National Immigration Agency of the Ministry of Interior. The oversight over the police behaviour is provided by police inspectorates, Internal Affairs Offices of the National Police Agency. Further, every police departments have Internal Affairs Office. Police inspectorates are in charge of dealing with complaints of people under the police power and carry out disciplinary procedure against the policemen who break the law. The tasks and responsibilities of police inspectorates are clearly stipulated in the National Police Agency’s regulation.