Strip searches through the lens of the prohibition of inhuman and degrading treatment in European human rights law

The prohibition of inhuman and degrading treatment, within Article 3 of the European Convention on Human Rights, has been relevant to a wide range of penal conditions and practices. Within its internationally leading body of case law, the European Court of Human Rights (‘the Court’) has considered contextual factors that have rendered strip searches incompatible with respect for human dignity. The Court’s context-sensitive findings provide valuable insights into the threshold between practices that are acceptable and those that are absolutely prohibited on human rights grounds. Such insights are of immediate relevance in national legal and policy contexts across the Council of Europe. There are, however, limitations to what we can infer from a surface-level look at this case law since the Court’s judgments tend to examine strip searches as only one element of broader complaints concerning detention conditions, and in these judgments the Court is not always precise about how particular experiences are characterised. Further, as a judicial body, the Court’s perspective is ex post and focused on the application of its standards to a particular individual set of facts. In this chapter, we aim to provide an enhanced insight into the factors that can be seen, according to the Court, to push or pull strip search practices above or below the threshold of the absolute protection guaranteed by Article 3. We begin with the Court’s Article 3 jurisprudence and use it to guide a closer look at strip searches through the lens of the prohibition of inhuman and degrading treatment. We identify key aspects of the doctrine and unpack the elements of strip searches that are likely to render them constitutive of inhuman and/or degrading treatment or as compatible with human dignity. This illustrates the way that the Court has mediated between ideas of necessity and appropriateness of conduct in relation to strip searches in the carceral context, and provides a basis for reflecting on its current and future approach.