REPORT Nº 38/96

CASE 10.506

ARGENTINA[1]

October 15, 1996

          1.       On December 29, 1989, the Commission received a complaint against the Government of Argentina regarding the situation of Ms. X and her thirteen-year-old daughter Y.[2]  The complaint alleges that the  Argentine State, and particularly the Federal Government's prison authorities who, routinely performed vaginal inspections on the women visitors of Unit No. 1 of the Federal Penitentiary Service (Unidad No. 1 del Servicio Penitenciario Federal) acted in violation of the rights protected under the American Convention on Human Rights.  Ms. X and her thirteen-year-old daughter were submitted to vaginal inspections each time they visited her husband and the father of the child, who at the time was incarcerated in the Defendants' Prison in the federal capital. On April of 1989 Ms. X lodged a writ of amparo ("recurso de amparo") demanding that the inspections cease.  The petition alleges that this practice by the Federal Penitentiary Service (SPF) constitutes a violation of the American Convention as it offends the dignity of the persons subjected to such a procedure (Article 11), and is a degrading penal measure which extends beyond the person condemned or on trial (Article 5.3) and, furthermore, discriminates against women (Article 24), in relation to Article 1.1.

          I.         FACTS

          2.       The prison authorities of Unit 1 of the SPF of Argentina adopted the practice of performing vaginal inspections on all female visitors who desired to have personal contact with the inmates.  Ms. X, whose husband was detained at Unit 1 of the SPF, and their thirteen year old daughter Y were thus routinely submitted to such searches each time they visited Mr. X.

          3.       According to Major Mario Luis Soto, Chief of Internal Security of the Federal Penitentiary System (Jefe de la Dirección de la Seguridad Interna) in his declaration on the writ of amparo on the present case, because the relatives of inmate sometimes brought drugs or narcotics into the prison in their vaginas, the practice of searching that area had been started some time ago.  He added that, at first, gloves were used for frisking that area but, because of the flow of female visitors, approximately 250 women, a lack of surgical gloves and the danger of transmitting AIDS or other diseases to visitors or inspectors, it was decided that visual inspections would be performed.[3]

          4.       Regarding Ms. X, Major Soto declared that she had been submitted to both types of inspections and had always protested against the procedure, but had been informed by prison personnel that no exception could be made in her case.[4]  As to the fact that these inspections were also performed on minors, the Chief of Internal Security affirmed that, in such cases, the inspections were always performed in the presence of one or both of the child's parents and that the search was much less rigorous in order to preserve their sense of modesty (pudor).[5]

          5.       On March 31 of 1989, during a routine search of the prison cells, a jar containing a yellow liquid and 400 grams of plastic explosives were found in the cell of Ms. X's husband.

          6.       On April 2, 1989, Ms. X arrived at Unit 1 with her daughter to visit her husband and father of the child, Mr. X.  She was once again informed by the prison authorities that, as a necessary condition for authorizing the physical contact visit, both her and her daughter had to undergo a vaginal inspection. (See Government's response of April 27, 1990 para. 6).  Ms. X refused to undergo the inspection and also refused the proposed alternative of a visit through a glass divider.

          7.       Ms. X and her daughter again attempted to visit Mr. X on April 5, 1989 without success. Ms. X once again refused to undergo the vaginal inspection prior to the person-to-person visit and also refused a visit through a glass divider.

          II.        LEGAL PROCEEDINGS

          8.       On April 7, 1989, Ms. X and her daughter, Y, filed a writ of amparo before the National Court of First Instance in Criminal Matters No. 17, Secretariat No. 151 of the federal capital, requesting the court to order the SPF to cease the vaginal inspections of her and her daughter.  The judge denied the motion on April 14, 1989 on the grounds that the measure in question was appropriate for maintaining the internal security of the prison. Ms. X appealed the decision.

          9.       On April 26, 1989, the National Court of Appeals in Criminal and Correctional Matters of the federal capital decided to grant the motion for relief and ordered the SPF to stop the protested inspections in this particular case.

          10.     In the Court's opinion, bodily searches of  Ms. X and her daughter constituted an invasion of the right of privacy, which is protected by the Civil Code.  The invasion alone constituted a violation of physical integrity, and an act that offended the conscience and honor of the persons searched and was degrading to human dignity.

          11.     Both the SPF and the Prosecution made special appeals against this judgement.  The Supreme Court of Justice of the Nation ruled on the case on November 21, 1989, overturning the ruling of the Court of Appeals.  The Supreme Court reasoned that the measures taken by the SPF in respect of  Ms. X were not flagrantly arbitrary, in terms of the law of amparo, as there did not appear to be any other existing methods, at least in the case of narcotics, for detecting dangerous objects in the body cavities of visitors who come into physical contact with inmates.

          12.     The Supreme Court then apprised the Court of Appeals of its decision which accepted it without dispute and finally resolved not to admit the writ of amparo filed by Ms. X.

          III.      PROCEEDINGS BEFORE THE COMMISSION

          13.     By letter of January 23, 1990, the Commission received  Ms. X's complaint filed by Argentine lawyers in conjunction with Americas Watch.  The complaint alleged that the practice by the SPF of performing vaginal inspections on  Ms. X and her thirteen-year-old daughter prior to allowing personal contact visits to Mr. X, incarcerated in the Defendants' Prison in the federal capital, was a violation of their rights protected under the Convention, namely Article 11 (attack on dignity); Article 5.3 (the measures were degrading penal treatment which extend beyond the condemned person); and the general principle of nondiscrimination established by Article 1.1 of the Convention (the measures discriminated against women).

          14.     On January 31, 1990, the Commission transmitted the relevant parts of the complaint to the Government requesting information on the facts or other pertinent information within 90 days.

          15.     On April 30, 1990, the Commission received the Government's response, in which it argued that the measure proposed by the penitentiary authorities in the case of Ms. X and her daughter was not flagrantly arbitrary nor was it a widespread practice by the SPF, but rather it was a reasonable preventive measure in light of the specific nature of the events which occurred only 48 hours prior to the attempted visit. Moreover, the search was not effected in this particular instance. The case was therefore not admissible for the Commission.

          16.     By letter of May 3, 1990, the Commission transmitted the pertinent parts of the Government's communication to the petitioners.

          17.     On May 31, 1990, the Commission received a note from the petitioners requesting an extension of 30 days.  The extension was granted in a note of the same date.

          18.     By note of June 21, 1990, the petitioners submitted their response to the Government's reply countering the arguments in detail.

          19.     On June 26, 1990, the Commission transmitted the response to the Government, requesting their comments within 45 days.

          20.     By note of August 13, 1990, the Government submitted its comments on the petitioner's response to the Commission, reiterating its arguments on the inadmissibility of the case.  In particular, the Government indicated that the facts alleged by the petitioners did not coincide with the events that took place. The Government proceeded to differentiate between vaginal inspections and searches, the latter involving touching and frisking. The Government stated that the present case only contemplated inspections.

          21.     On August 28, 1990, the Commission transmitted the relevant parts of the Government's communication to the petitioners.

          22.     On October 8, 1990, the Commission received the petitioners' reply contesting the Government's arguments.  In particular, they indicated that the difference between vaginal "inspections" and "searches" was immaterial to the subject of human dignity as both were equally humiliating in this particular case.

          23.     By note of October 19, 1990, the Commission transmitted the pertinent parts of the latter communication to the Government requesting its comments on the matter with 45 days.

          24.     On October 31, 1990, the Commission received a note from the Government requesting a 45-day extension, which was granted.

          25.     By letter of November 27, 1990, the  Government submitted its comments to the Commission contesting the arguments put forth by the petitioners.

          26.     By note of March 16, 1994, the Commission requested information on the case from the petitioners.  The request was reiterated on May 10, 1994.

          27.     By note of July 28, 1994, the Center for Justice and International Law joined the complaint as petitioners. In the same note, the petitioners requested that the Commission finish processing the case, issue the report envisaged in Article 50 of the Convention, and send the case to the Inter-American Court of Human Rights.

          28.     On February 23, 1995, the Commission sent a letter to both parties putting itself at their disposal in order to reach a friendly settlement of the case.  In a note dated March 21, 1995, the Government informed the Commission that it was unable to negotiate a settlement.

          IV.       POSITIONS OF THE PARTIES

          A.        Petitioners

          29.     The Government inappropriately attempted to justify the "reasonable" nature of the measure, based on the end sought or the possibility that the vagina could be used to transport arms, explosives, or other objects without justifying the measure itself.  For the Government, any restriction on rights in the interest of "public safety" was "reasonable", irrespective of the measure applied.

          30.     The petitioners countered the arguments put forth by the Government, which attempted to establish the inspections as reasonable by the following arguments:

          i.        The fact that Mr. X might have, at some time, hidden 400 grams of explosives in his cell had nothing to do with the disputed practice since the explosives could not have been transported in the way the inspections sought to avoid.

          ii.       There are technical means commonly used in other contexts to quickly and easily detect any attempt to bring in dangerous materials without having to resort to visual inspections of the vagina.  Under these circumstances, the only purpose such searches and inspections can serve is to stigmatize, denigrate, and oppress women as such, and because they are relatives of prisoners.

          iii.       In any event, it would be simpler to search the prisoners after the visit, before returning them to their cells or dormitories.

          iv.      The proposed alternative of a visit through glass reduces prisoners to the status of infected persons in quarantine, is degrading to their self-esteem, hinders the relationship with their relatives, and is therefore dehumanizing.

          31.     The procedure complained of is a generalized practice so that almost all women visiting their imprisoned relatives are subjected to the same degrading treatment. The practice is discriminatory since the women are neither the perpetrators nor suspects of any offense.  Moreover, it is a discriminatory practice because it targets certain persons.  In other contexts, different, less degrading means are utilized to effectuate the same purpose, namely the search of persons to guarantee the security of premises or to prevent illegal acts.  None of these other measures constitutes the invasion of privacy nor an attack on dignity, as does the procedure applied to the relatives of prisoners in this case.

          32.     The complaint in Argentina was not made under Article 92 of the National Penitentiary Law, which prohibits humiliating searches, but refers to the conditions of timely supervision and censorship established in the regulations.[6]  The need for general searches is not disputed, but rather those that constitute a degrading treatment.

          B.        Government

          33.     The prison regulation allowing the adoption of vaginal inspection measures has its legal grounds in Article 92 of the National Penitentiary Law (Decree Law 412/58 ratified by Law No. 14,467), which reads as follows:  "The visits and correspondence received by inmates will be subject to the conditions of timeliness, supervision, and censorship determined by the regulations..."  This national standard is consistent with the United Nations minimum standards for the treatment of prisoners.

          34.     Restrictions on protected rights are necessary given the peculiar nature of the problems that could arise in the complex situation of prisons.  The restriction of rights necessary in a democratic society in the interest of public safety led to Law 14,467. The prison authorities need some flexibility to determine the degree of liberty they grant to a prisoner.

          35.     Vaginal inspection in the SPF units is performed by female inspectors who conduct a visual examination without introducing anything into the vaginal cavity, as the procedure is not a search.

          36.     The aim is to prevent women's private parts from being used as a means for illegally bringing arms, explosives, narcotics or other dangerous objects into the prisons.  Similar inspections are performed on men's anal areas by male inspectors, for the same purpose.

          37.     The measure is neither compulsory nor widespread.  It is not compulsory because when the visitor, male or female, does not consent to the inspection, the visit

may be carried out through glass, without physical contact.  It is also not a generalized measure because, among other things, certain conditions, which existed in this case, must arise.

          38.     Just 48 hours before Ms. X's visit on April 2, two cream-colored pieces of plaster were found in her husband's cell.  The chemical expert examination concluded that the substance was a destructive plastic explosive.  Being plastic, it also had the following properties:  (a) it could keep any shape; (b) it could stick easily to smooth surfaces; (c) it could not be detected by frisking; (d) it was not harmful to the health of an individual.

          39.     Thus, the reasonableness of the measure in the case under reference was substantiated by the fact that the substance found was malleable, harmless to health, and could not be detected by frisking, thereby supporting the hypothesis that it might have been brought into the jail in the vagina during a woman's visit.

          40.     In the case of Ms. X, there were indeed grounds for suspicion and moreover the offense was serious enough to justify the decision of the prison authorities not to authorize the visit with physical contact.  It was a preventive measure not intended to prohibit communication between the inmate and his family.  If the petitioner had made use of her rights, she could have communicated with her husband through a glass.

          41.     In this particular case, Ms. X and her daughter actually refused to be examined and, consequently, the inspections were not performed.

          42.     It does not seem acceptable to argue that because there are other less onerous methods, all the rest are arbitrary and, therefore, humiliating, especially since the method in question has scarce and limited use (like the detectors used in VIP lounges in airports).

          43.     Vaginal inspection is consistent with prison policies in the countries governed by the European Convention on Human Rights and with similar procedures implemented in the United States in cases such as the one under reference.

          V.        ADMISSIBILITY

          44.     The complaint meets the formal admissibility requirements established in Article 46.1 of the Convention and Article 32 of the Regulations of the Commission.

          i.        The Commission has jurisdiction to hear this case as it deals with acts which constitute violations of the rights enshrined in the Convention, namely in Articles 5, 11, 17, in relation to Article 1.1.

          ii.       As stated in the records, the alleged victim has exhausted the remedies established under Argentine law.

          iii.       In regard to the friendly settlement procedure present in Article 48(1)(f) of the Convention and Article 45 of the Commission's  Regulations, the Commission has set itself at the disposal of the parties but an agreement could not be reached.

          iv.      The petition is not pending before any other international settlement procedure nor is it a reproduction of a petition already examined by the Commission.

          VI.       ANALYSIS

          A.        General Considerations

          45.     It is alleged that vaginal inspections constitute degrading treatment and was tantamount to an invasion of Ms. X's privacy and physical integrity and an unlawful restriction on her right to family.  For its part, the Government argues that vaginal inspection is a preventive measure that is conceivably consistent with the purpose of maintaining the security of the inmates and staff of the SPF and that, furthermore, the inspection did not actually take place because the alleged victim refused to submit to it.

          46.     As regards the Government's assertion that the inspections never took place, it is demonstrated in the files by the declarations of both the Chief of Internal Security[7] and the Attorney General[8] as well as by the very wording of the rulings of the First Instance Court, the Court of Appeals and the Supreme Court of Justice, that Ms. X, though under protest, submitted to this procedure several times before she filed the writ of amparo demanding that the inspections on both herself and her daughter cease.

          47.     Therefore, when considering this case the Commission must examine two separate issues:

          1)       whether the requirement that Ms. X and her daughter undergo a vaginal inspection before each physical contact visit with Mr. X is in compliance with the rights and guarantees present in the American Convention on Human Rights;

          2)       whether this requirement and the performance of the procedure prevented them from fully exercising their rights protected under the American Convention, particularly those enshrined in Articles 5 (right to humane treatment), 11 (protection of honor and dignity), 17 (protection of the family) and 19 (rights of the child), in relation to Article 1.1, which obliges the States Parties to respect and guarantee the full and free exercise of all the provisions recognized in the Convention without discrimination.

          B.        The requirement that visitors undergo a vaginal inspection in order to be permitted a physical contact visit

          48.     The petitioners allege that the requirement that visitors to Unit 1 submit to vaginal searches or inspections in order to be permitted personal contact visits was an illegitimate interference with their exercise of the right to family. Moreover, it is alleged that the measure, by not being in compliance with the Convention, in itself contravened the rights protected by that instrument, and that existence of this requirement and its application violated not only the right to family, guaranteed by Article 17 but also the right to privacy, honor, and dignity, protected by Article 11, and the right to physical integrity guaranteed by Article 5.

          49.     Although Article 19, which protects the rights of the child, was not invoked by the petitioners, the Commission considers that as one of the alleged victims was a 13-year-old child at the time of the events this provision should also be examined. According to the general principle of international law iura novit curia international bodies have the power and even the duty to apply all pertinent legal provisions, even if these have not been invoked by the parties.[9]

          50.     The Government of Argentina argued that all of the measures it adopted are acceptable restrictions to the Convention's provisions and were reasonable under the circumstances of the case.  The Commission must thus consider what are the State's obligations regarding the provisions of the Convention, and what are the permissible limitations to those rights.

          1.         State obligations to "respect and ensure" and the imposition of conditions on the rights protected by the Convention

            a.         Article 1.1, the obligations to respect and guarantee

          51.     Article 1.1 establishes that States Parties undertake to respect and to ensure the rights of the Convention. These obligations limit the State's authority to impose restrictions on the rights protected by the Convention.  The Inter-American Court has stated that:

          The exercise of public authority has some limits which derive from the fact that human rights are inherent attributes of human dignity which are, therefore, superior to the power of the State.[10]

          52.     Moreover, the Court has declared that the obligation to guarantee "implies the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights."[11]

          53.     The Court has thus established that there are a number of aspects of a person's life, and particularly "certain attributes of human dignity," that fall outside of the State's sphere of action and "cannot be legitimately restricted through the exercise of governmental power."  Moreover, States Parties must organize their internal structure so as to ensure the full enjoyment of human rights. The State that proposes measures, the execution of which may lead, either in themselves or because of a lack of adequate guarantees, to a violation of the rights present in the Convention, goes beyond the exercise of legitimate governmental power recognized by the Convention.

          b.         The imposition of limitations

          54.     The text of the Convention does not establish explicit restrictions to the enjoyment of any of the rights under consideration and indeed, three of those provisions--the right to humane treatment (Article 5), the rights of the family (Article 17) and the rights of the child (Article 19)--are included in the list, set forth in Article 27.2, of rights that cannot be suspended even in extreme circumstances.  The Commission cannot, therefore, examine the legitimacy of the alleged imposition of restrictions to these rights within the parameters of Article 30, which defines the scope of restrictions to the Convention,[12] but only within the broader framework of Article 32.2 which acknowledges the existence of limitations to all rights.

          55.     Article 32.2 recognizes the existence of certain inherent limitations to the rights of all persons which are a normal consequence of life in society.

          56.     Article 32.2 reads:

          The rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare in a democratic society.

          57.     In examining this article, the Inter-American Court of Human Rights has stated that the impositions of limitations should always be employed strictly.  The Court declared that:

          In this respect the Court wishes to emphasize that "public order" or "general welfare" may under no circumstances be invoked as a means of denying a right guaranteed by the Convention or to impair or deprive it of its true content (See Article 29(a) of the Convention).  Those concepts, when they are invoked as a ground for limiting human rights, must be subjected to an interpretation that is strictly limited to the "just demands" of "a democratic society," which takes account of the need to balance the competing interests involved and the need to preserve the object and purpose of the Convention.[13]

          58.     The Court's jurisprudence establishes that, in order to be compatible with the Convention, restrictions must be justified by collective objectives that are so important that they clearly outweigh the social need to guarantee the full exercise of rights guaranteed in the Convention and are not more limiting than strictly necessary.  It is not enough to demonstrate, for example, that the law fulfills a useful and timely purpose.

          59.     A state does not have absolute discretion to decide what means are adopted to protect the "general welfare" or "public order".  Measures that may in any way condition the rights protected by the Convention must always obey certain requirements.  In this regard, the Inter-American Court of Human Rights has said that restrictions on the rights protected in the Convention "must meet certain requirements of form which depend upon the manner in which they are expressed.  They must also meet certain substantive conditions which depend upon the legitimacy of the ends that such restrictions are designed to accomplish."[14]

          60.     The Commission considers that in order to be considered in compliance with the Convention such measures should meet three specific conditions.  A measure that in any way affects the rights protected by the Convention should necessarily:  1) be prescribed by law; 2) be necessary for the security of all and in accordance with the just demands of a democratic society; 3) and its application must be strictly confined to the specific circumstances present in Article 32.2 and be proportionate and reasonable in order to accomplish those objectives.

          1)         the lawfulness of the measure

          61.     The Inter-American Court has stated that:

                   In order to guarantee human rights, it is therefore essential that state actions affecting basic rights not be left to the discretion of the government but, rather, that they be surrounded by a set of guarantees designed to ensure that the inviolable attributes of the individual not be impaired.  Perhaps the most important of these guarantees is that restrictions to basic rights only be established by a law passed by the Legislature in accordance with the Constitution.[15]

          62.     Any action that affects basic rights must therefore be prescribed by a law passed by the Legislature and in compliance with the internal legal order.  The Government claims that vaginal inspections on visitors to prisons in Argentina are authorized by the law and internal regulations.

          63.     Articles 91 and 92 of Decree law 412/58 (National Penitentiary Law) of Argentina establish a number of conditions to which visits are subjected.  Similarly, Article 28 of the SPF Public Bulletin No. 1266 stipulates that:  "Visitors shall be subjected to the search requirements in force in the Unit if they do not wish to forgo the visit.  In any event, the search shall be conducted by staff of the same sex as the person searched."  In this regard, Article 325 regulates search teams through Public Bulletin No. 1294, authorizing a thorough and detailed control.  However, Public Bulletin No. 1625 provides that "humanitarian treatment should be paramount in searches, avoiding any procedure that might be humiliating to the inmates...," "the same treatment should be applied in searching inmates' visitors...."

          64.     By not specifying the conditions or the types of visits applicable, these regulations give prison authorities a very wide latitude for discretion.  It is doubtful that such legislation possesses the necessary degree of precision which is essential to determine if an action is prescribed by law.[16]  Unquestionably, deference to the authorities in matters of internal security of prisons is in accordance with their experience and knowledge of the specific needs of each penitentiary and the particular case of each inmate.  However, a measure as extreme as the vaginal search or inspection of visitors, that involves a threat of violation to a number of the rights guaranteed under the Convention, must be prescribed by a law which clearly specifies the circumstances when such a measure may be imposed and sets forth what conditions must be obeyed by those applying this procedure so that all persons subjected to it are granted as full a guarantee as possible from its arbitrary and abusive application.[17]

          2)         necessity in a democratic society for the security of all

          65.     The Government contends that restrictions on protected rights are necessary given the nature of the problems that may arise in a complex prison situation.  Regarding the instant case, the Government affirms that the measure in question was a necessary restriction of rights in a democratic society adopted in the interest of public safety.

          66.     The Commission is aware that all countries have rules regarding the treatment of prisoners and detainees, which also regulate their visitation rights as to time, place, manner, type of contact, etc.  It is also recognized that corporal searches, and even corporal probing, of detainees and prisoners may sometimes be necessary.

          67.     The present case, however, entails the rights of visitors whose rights are not automatically limited by virtue of their contact with the inmates.

          68.     The Commission does not question the need for general searches prior to entry into prisons.  Vaginal searches or inspections are nevertheless an exceptional and very intrusive type of search.  The Commission would like to underline the fact that a visitor or a family member who seeks to exercise his or her rights to family life should not be automatically suspected of committing an illegal act and cannot be considered, on principle, to pose a grave threat to security.  Although the measure in question may be exceptionally adopted to guarantee security in certain specific cases, it cannot be maintained that its systematic application to all visitors is a necessary measure in order to ensure public safety.

          3)         reasonableness and proportionality of the measure

          69.     The Government affirms that the measure is a reasonable restriction of the visitor's rights in order to protect security.  The Government further asserts that it was not a compulsory procedure and it was only applied to those persons who desired to have personal contact visits, therefore, anyone was free to reject it.

          70.     Any restriction to human rights must be proportional and closely tailored to the legitimate governmental objective necessitating it.[18]  To justify restricting visitors' rights, it is not sufficient to invoke security reasons.  After all, the issue entails balancing the interests on the one hand of family members and prisoners to enjoy visitation rights free from arbitrary and abusive interference, and on the other the state's interest in guaranteeing the security within prisons.

          71.     The reasonableness and proportionality of a measure can only be ascertained through the examination of a specific case.  The Commission notes that a vaginal search is more than a restrictive measure as it involves the invasion of a woman's body.  Consequently, the balancing of interests involved in an analysis of the measure's lawfulness, must necessarily hold the government's interest to a higher standard in the case of vaginal inspections or any corporal probing.

          72.     The Commission considers that the lawfulness of a vaginal search or inspection, in a particular case, must meet a four-part test:  1) it must be absolutely necessary to achieve the security objective in the particular case; 2) there must not exist an alternative option; 3) it should be determined by judicial order; and 4) it must be carried out by an appropriate health professional.

         a)         absolute necessity

          73.     The Commission believes that such a procedure must not be carried out unless it is absolutely necessary to achieve the security objective in the particular case. The requirement of necessity implies that inspections and searches of this kind should only be applied in specific cases where there is reason to believe either in the existence of a real threat to security or that the person in question may be carrying illegal substances.  The Govern