In all penitentiaries authorities must sometimes conduct searches of either some of the premises or all of the premises with a view to maintaining order and security and, more specifically, to prevent prison breaks or to put an end to illegal possession and trafficking of banned products and objects. Cell and dormitory searches are part of the surveillance system.
However, cell searches are particular in that they, on the contrary to other places being searched, are carried out in the only areas where detainees have a semblance of privacy.
Legal and procedural safeguards must be in place to prevent any abuse in cell searches. On one hand, safeguards must be instituted to prevent the practice of systematic and discriminatory searches and, on the other hand, damaging detainees’ property. In addition, these safeguards are in place to ensure that cell searches take place in a calm and respectful manner in order to avoid any violence.
Cell searches must be carried out by trained and easily identifiable personnel. Searches should not be conducted by someone from outside the institution.
Cell searches should take place with the detainee concerned present or, in the case of a dormitory or large cell, with at least one occupant present.
Cell and dormitory searches are common procedures undertaken by prison authorities with a view to maintaining order and security in penitentiaries.
Reasons for cell searches and circumstances of searches
To avoid any abusive, arbitrary or systematic searches, the circumstances requiring cell searches should be a part of the penitentiary’s internal rules or be outlined in the memorandum/guidelines issued by the main administration. These searches can be periodic or result from a specific risk namely due to the detention regime or the dangerousness of some detainees or due to a deterioration in security within the establishment.
In some institutions it may be necessary to institute a regularly-scheduled cell search program regardless of any specifically identified risk. Detainees must be informed of this procedure and its terms.
The existence of such a program should not translate into overly frequent cell searches. Regular cell searches are not always necessary and in some institutions only ad hoc searches are conducted when the authorities believe that there are reasonable grounds to believe that banned goods or products are in a cell or that an offense is about to be committed . Detainees must be informed of the search procedure and its terms.
The director of the institution must authorize all cell searches that are not on the scheduled search program.
Cells or dormitories are often a living space where detainees can store their personal belongings and create, if not a familiar environment, at least a comforting one. Therefore, detainees can feel that these searches invade their personal space. This feeling is exacerbated when searches end up disrupting their space and when personal belongings are wrongly confiscated.
Cell searches can sometimes lead to physical violence perpetrated by the officers carrying out the searches or by the prisoners themselves in reaction to the search.
These risks are often greater when cell searches are conducted by personnel from outside the penitentiary. Use of external officers must be duly justified and the agents must be identifiable to avoid all notion of impunity which may give rise to certain abuses.
It is especially important for minors to have a private space they can personalize. Prisoners who are minors are often fragile due to being separated from their families or social environment. They need to be able to create their own space in their cell or dormitory. Therefore, cell searches represent an intrusion into their privacy which may affect them, or even be traumatizing, if searches are carried out without taking into account the vulnerability due to their age.
There is a risk that cell searches, as in body searches, be conducted in a discriminatory manner against certain categories of detainees, due to, for instance, their race, ethnic origin, gender, or sexual orientation.
Respect for belongings and living space
Cells are the detainees’ living space. It is important that these spaces be respected as much as possible during lawful cell searches.
It is particularly important that detainees be informed of the possibility and terms of searches. More specifically, detainees should be informed of which objects and products are prohibited and the places where they cannot put their personal belongings and which are systematically checked by personnel (doors, windows). In this way detainees can avoid having belongings confiscated or damaged because they are in forbidden areas.
Detainees should be present when their cells are being searched. Their presence can prevent unwarranted destruction or confiscation and they can provide an explanation on the spot for any object present.
When the search relates to a dorm or a large cell, it is not possible and often not desirable that all concerned detainees be present. However, it is suitable for one or two of the detainees occupying the dormitory to be present.
Cell searches should take place respectfully. Detainees’ belongings and dignity must be respected. Agents must take care to not damage the inmates’ personal belongings during the procedure. Personnel should never make fun of any object they come across.
Personnel in charge of the search should show particular respect towards any of the detainees’ goods that have a cultural or religious nature.
At the end of the search personnel should put belongings back the way they found them. Special care should be taken when the cell is occupied by a detainee with a disability.
Hierarchical control and registering seized goods/damaged goods
The fact that laws regulate cell searches or that they are detailed in the penitentiary’s rules is the primary safeguard against abuses by the penitentiary’s personnel.
This legal guarantee should be reinforced by a procedural guarantee. Whenever a search is not on the regular program, the decision to search a cell should be made by the prison director. As for body searches, the cell search should always be conducted by at least two members of staff in order to ensure any potential individual mistakes.
Property seized in cell searches must be duly registered in a record and the detainee concerned - if he/she was not present during the search - must be informed. Similarly, objects that were destroyed or damaged during the search must be properly registered and brought to the attention of the detainee concerned.
The prisoner must have the possibility of registering a complaint against all abusive practices.
Staff identification and training
Personnel identification and training are means to prevent wrongdoing during the cell search procedure. As with all security operations within a penitentiary, personnel should have a badge on to be identified in case of complaints. This identification is especially important when searches are conducted by external agents.
The search team members’ names should be recorded. The appropriate conduct of cell searches also depends on the agents’ training and experience which should allow them to ascertain the risks involved and to conduct the search in the most respectful way in regards to the detaineesʼ dignity and belongings.
Legal standards (3) Print
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)
The laws and regulations governing searches of prisoners and cells shall be in accordance with obligations under international law and shall take into account international standards and norms, keeping in mind the need to ensure security in the prison. Searches shall be conducted in a manner that is respectful of the inherent human dignity and privacy of the individual being searched, as well as the principles of proportionality, legality and necessity.
Searches shall not be used to harass, intimidate or unnecessarily intrude upon a prisoner’s privacy. For the purpose of accountability, the prison administration shall keep appropriate records of searches, in particular strip and body cavity searches and searches of cells, as well as the reasons for the searches, the identities of those who conducted them and any results of the searches.
Prisoners shall have access to, or be allowed to keep in their possession without access by the prison administration, documents relating to their legal proceedings.
European prison rules
There shall be detailed procedures which staff have to follow when searching:
a. all places where prisoners live, work and congregate; (…)
The situations in which such searches are necessary and their nature shall be defined by national law.
Staff shall be trained to carry out these searches in such a way as to detect and prevent any attempt to escape or to hide contraband, while at the same time respecting the dignity of those being searched and their personal possessions.
4. Persons being searched shall not be humiliated by the searching.
Prisoners shall be present when their personal property is being searched unless investigating techniques or the potential threat to staff prohibit this.
Principles and Best Practices on the Protection of Persons Deprived of Liberty in the America
Principle XXI - Bodily searches, inspection of installations and other measures
Whenever (…) inspections of installations and organizational measures of places of deprivation of liberty are permitted by law, they shall comply with criteria of necessity, reasonableness and proportionality. (…)
The inspections or searches in units or installations of places of deprivation of liberty shall be carried out by the competent authorities, in accordance with a properly established procedure and with respect for the rights of persons deprived of liberty.
Questions for monitors (12) Print
Are the circumstances, conditions and terms of cell searches defined in a piece of legislation?
Are search procedures detailed in the institution’s rules?
Are personnel, staff, detainees and visitors aware of the search procedures?
Are cell searches conducted only when necessary and in proportion to the safety operation?
Are cell searches conducted in the presence of inmates concerned or their representative?
Is the detainee informed that their property is being confiscated? Do they know that the list of those items is listed in an operational report?
Are detainees’ damaged personal property replaced?
Is special care paid to goods with a strong cultural or religious meaning?
Is special care taken during cells searches of dormitories occupied by minors?
Are cell search personnel clearly identifiable (registration number, no head gear or mask allowed during the search)?
Are detainees informed of which items are prohibited and where it is forbidden to place objects in the dormitories or cells?
Are staff trained to conduct cell searches in a way that is respectful to the detainees’ dignity?