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.
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.
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.
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
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.
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).
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.
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.
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.
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.
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
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.
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.
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.
PROCEEDINGS BEFORE THE COMMISSION
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).
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.
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.
letter of May 3, 1990, the Commission transmitted the pertinent parts of
the Government's communication to the petitioners.
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.
note of June 21, 1990, the petitioners submitted their response to the
Government's reply countering the arguments in detail.
June 26, 1990, the Commission transmitted the response to the
Government, requesting their comments within 45 days.
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.
August 28, 1990, the Commission transmitted the relevant parts of the
Government's communication to the petitioners.
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
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.
October 31, 1990, the Commission received a note from the Government
requesting a 45-day extension, which was granted.
letter of November 27, 1990, the Government
submitted its comments to the Commission contesting the arguments put
forth by the petitioners.
note of March 16, 1994, the Commission requested information on the case
from the petitioners. The
request was reiterated on May 10, 1994.
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.
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.
POSITIONS OF THE PARTIES
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.
petitioners countered the arguments put forth by the Government, which
attempted to establish the inspections as reasonable by the following
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.
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.
In any event, it would be simpler to search the prisoners after
the visit, before returning them to their cells or dormitories.
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
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.
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
The need for general searches is not disputed, but rather those
that constitute a degrading treatment.
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.
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
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.
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.
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
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.
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.
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.
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.
this particular case, Ms. X and her daughter actually refused to be
examined and, consequently, the inspections were not performed.
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).
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
complaint meets the formal admissibility requirements established in
Article 46.1 of the Convention and Article 32 of the Regulations of the
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.
As stated in the records, the alleged victim has exhausted the
remedies established under Argentine law.
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.
petition is not pending before any other international settlement
procedure nor is it a reproduction of a petition already examined by the
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.
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
and the Attorney General
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.
when considering this case the Commission must examine two separate
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;
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.
The requirement that visitors undergo a vaginal inspection in
order to be permitted a physical contact visit
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.
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.
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.
State obligations to "respect and ensure" and the
imposition of conditions on the rights protected by the Convention
Article 1.1, the obligations to respect and guarantee
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
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.
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."
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.
The imposition of limitations
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, but only within the
broader framework of Article 32.2 which acknowledges the existence of
limitations to all rights.
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.
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
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
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.
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
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.
the lawfulness of the measure
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.
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.
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'
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.
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.
necessity in a democratic society for the security of all
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.
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.
present case, however, entails the rights of visitors whose rights are
not automatically limited by virtue of their contact with the inmates.
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.
reasonableness and proportionality of the measure
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.
restriction to human rights must be proportional and closely tailored to
the legitimate governmental objective necessitating it.
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.
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
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.
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 Government
argued that the exceptional circumstances surrounding Mr. X's case
justified measures that severely restricted personal liberties, because
they were taken for the common good, i.e. preserving security for the
prisoners as well as the prison personnel.
Nevertheless, according to the Chief of Security the measure was
consistently applied to all visitors of Unit 1. Arguably the measure may
have been justifiable immediately after Mr. X was found to be in
possession of explosives, but the same cannot be said of the numerous
times the measure was applied prior to that occasion.
non-existence of an alternative option
Commission considers that the practice of vaginal inspections and
searches, and the consequent interference with visits, must not only
satisfy an imperative public interest, but also that "if there are
various options to achieve this objective, that which least restricts
the right protected must be selected."
facts of the case suggest that the measure was not the sole and perhaps
not even the most efficient means of controlling the entrance of
narcotics and/or other dangerous substances to prisons. Ms. X and her
daughter were admittedly submitted to this
procedure each time they visited Mr. X and, in spite of this fact
400 grams of explosives were found in his possession during a routine
search of his cell.
would seem that other and less restrictive procedures, such as the
search of inmates and their cells, are a more efficient and reasonable
means of guaranteeing internal security.
In addition, it should not be ignored that the special legal
position of prisoners, by its very nature, results in a number of
limitations to the exercise of their rights.
The state, which has custody of all of those persons in detention
and is responsible for their well-being and safety, has a greater
latitude to apply what measures may be necessary to ensure security in
the case of inmates. By
definition, a detainee's personal liberties are restricted and it may
therefore occur that corporal searches, and even corporal probing, of
detainees and prisoners are sometimes justifiable, using methods
compatible with their human dignity.
It would have obviously been a more reasonable and simpler
measure to search the inmates after a personal contact visit, than
submit all of the women visitors to the prisons to such an extreme
procedure. Searches of
visitors should be carried out only in very specific circumstances and
when there is reasonable cause to believe that they pose a real threat
to security or are carrying illegal substances.
Government also contends that the procedure was not obligatory and was
only carried out with the consent of the visitors.
It would thus appear that because an alternative to the procedure
was proposed by the state and the petitioners decided not to avail
themselves to it, they could not complain of undue state interference.
The Commission would like to note that a state cannot propose or request
the consent of persons under its jurisdiction to conditions or
procedures that may constitute an infringement to the rights protected
by the Convention. A
state's authorities cannot, for example, propose to a person a choice
between an arbitrary detention and another more restrictive, if legal,
measure because all of a state's actions must observe basic principles
of legality and due process.
performance of vaginal searches or inspections may be acceptable under
certain circumstances as long as its application is guided by principles
of due process and safeguards the rights protected by the Convention.
If conditions such as legality, necessity, and proportionality
are not observed, however, and the procedure is carried out without
respect for certain minimum standards that safeguard the legality of the
action and the physical integrity of those persons submitted to it, the
procedure cannot be considered to be in compliance with the rights and
guarantees of the Convention.
the Commission would also like to note that in the case of Y no real
consent was possible. At
the time of the facts Ms. Y was a 13-year-old child who was thus
entirely dependent on the decision taken by her mother, Ms. X, and on
the protection afforded to her by the state. Because of the child's age,
it is evident that the vaginal inspection was an absolutely inadequate
and unreasonable method.
Commission thus concludes that in the case under examination, other more
reasonable options were available to the authorities in order to ensure
security in the prison.
existence of a judicial order
assuming that no other less intrusive means exist, the Commission
considers that intrusive corporal probing, that was discontinued because
of danger of infection to prison personnel, requires a judicial order.
In principle, a judge should evaluate the need of such searches
as a necessary requirement for a personal visit without infringing upon
the individual's personal dignity and integrity. The Commission
considers that exceptions to this rule should be expressly stated in the
requirement that of a judicial order authorizing police agents or
security personnel to take certain kinds of action, considered to be
especially intrusive or potentially liable to abuse, exists in most of
the internal legal systems of the continent.
A clear example of this is the practice which determines that a
person's home is under special protection and cannot be searched without
a warrant. By its very
nature, a vaginal inspection is such an intimate intrusion into a
person's body that it demands special protection.
When there is no control and the decision of subjecting a person
to this kind of intimate search is left at the entire discretion of
police or security personnel, without the existence of any kind of
control, this practice is liable to being employed in circumstances when
it would be unnecessary, used as a form of intimidation, and/or
otherwise abused. The determination that this type of search is a necessary
requirement for the personal contact visit ideally should be made by a
though, in the present case, material explosives were found in Mr. X's
cell and his visitors were reasonably suspected, the state had an
obligation, derived from its duty under the Convention to organize its
internal apparatus so as to guarantee human rights, to request a
judicial order to execute the search.
The procedure must be carried out by qualified medical
addition, the Commission insists that any type of corporal probing, such
as was practiced when the authorities still applied this kind of search,
must be performed by a medical practitioner with the strictest
observance of safety and hygiene, given the potential of physical and
moral injury to individuals.
conditioning the visit with an intrusive measure but not providing
appropriate guarantees, the prison officials unduly interfered with Ms.
X's and her daughter's rights.
The rights protected by the Convention
The right to physical integrity:
petitioners alleged a violation of Article 5, in particular, of its
paragraphs 2 and 3, which read:
Every person has the right to have his physical, mental, and
moral integrity respected.
No one shall be subjected to torture or to cruel, inhuman, or degrading punishment
Punishment shall not be extended to any person other than the
procedure in question is not per se illegal.
Nevertheless, when the state performs any kind of physical
intervention in individuals, it must observe certain conditions in order
to ensure that such treatment does not generate a greater degree of
anguish and humiliation than that which is inevitable.
Such a measure should always be the consequence of a judicial
order which assures some control over the decision as to the necessity
of its application and that the person subjected to it does not feel
defenseless before the authorities.
Moreover, the measure should always be performed by qualified
personnel exercising the necessary care to ensure that no physical harm
results from the procedure and conducting the examination in such manner
so as to ensure that those persons submitted to it do not feel that
their mental and moral integrity has been affected.
Article 5.3 of the Convention, the Commission does not have any evidence
that the vaginal inspection was intended to extend Mr. X's punishment
onto his family. Moreover,
the Commission has no reason to assume official motives that are not
conclusion, the Commission finds that when the prison authorities of the
State of Argentina systematically performed vaginal inspections on Ms. X
and Y they violated their rights to physical and moral integrity, in
contravention of Article 5 of the Convention.
Right to Privacy: Article 11
11 of the Convention stipulates that:
Everyone has the right to have his honor respected and his
No one may be the object of arbitrary or abusive interference
with his private life, his family, his home, or his correspondence, or
of unlawful attacks on his honor or reputation.
Everyone has the right to the protection of the law against such
interference or attacks.
right to privacy guaranteed by this provision covers, in addition to the
protection against publicity, the physical and moral integrity of the
The object of Article 11, as well as of the entire Convention, is
essentially to protect the individual against arbitrary interference by
public officials. Nevertheless,
it also requires the state to adopt all necessary legislation in order
to ensure this provision's effectiveness.
The right to privacy guarantees that each individual has a sphere
into which no one can intrude, a zone of activity which is wholly one's
own. In this sense, various
guarantees throughout the Convention which protect the sanctity of the
person create zones of privacy.
11.2 specifically prohibits "arbitrary or abusive"
interference with this right. This
provision indicates that in addition to the condition of legality, which
should always be observed when a restriction is imposed on the rights of
the Convention, the state has a special obligation to prevent
"arbitrary or abusive" interferences.
The notion of "arbitrary interference" refers to
elements of injustice, unpredictability and unreasonableness which were
already considered by this Commission when it addressed the issues of
the necessity, reasonableness, and proportionality of the searches and
the Commission would like to underscore that the present case involves a
particularly intimate aspect of a woman's private life and that the
procedure in question, whether its application is justifiable or not, is
likely to provoke intense feelings of shame and anguish in almost all
persons who are submitted to it. In
addition, subjecting a 13 year old child to such a procedure could
result in serious psychological damage that is difficult to evaluate.
Ms. X and her daughter had a right to have their privacy, dignity
and honor respected when they sought to exercise their rights to family,
even if a family member was in detention.
These rights should have been restricted only in the presence of
a particularly serious situation and in very specific circumstances, and
then only, with the strict compliance by the authorities with the
standards which were outlined above in order to guarantee the legality
of the practice.
Commission thus concludes that when the prison authorities of Argentina
subjected Ms. X and her daughter to vaginal searches and inspections
each time they desired to have a personal contact visit with Mr. X, they
acted in violation of the petitioners' rights to honor and dignity,
protected by Article 11 of the Convention.
Rights of the Family: article 17
is alleged that undue interference with Ms. X's
and her child's visit contravened the rights of her family
guaranteed in Article 17, which states:
The family is the natural and fundamental group unit of society
and is entitled to protection by society and the State.
17 recognizes the central role of the family and family-life in the
individual's existence and society, in general.
It is a right so basic to the Convention that it is considered to
be non-derogable even in extreme circumstances.
In the instant case, the petitioners allege that the exercise of
this right suffered an illegitimate restriction and that a number of
other rights protected by the Convention, particularly their right to
personal integrity and the right to honor and dignity were violated
while they sought to exercise this right.
right to family life can suffer certain limitations that are inherent to
it. Special circumstances such as incarceration or military service,
even though they do not suspend this right, inevitably affect its
exercise and complete enjoyment. Though
imprisonment necessarily restricts the full enjoyment of the family by
forcibly separating a member from it, the state is still obliged to
facilitate and regulate contact between detainees and their families and
to respect the fundamental rights of all persons against arbitrary and
abusive interferences by the state and its public functionaries.
Commission has consistently held that the state is obligated to
facilitate contact between the prisoner and his or her family,
notwithstanding the restrictions of personal liberty implicit in the
condition of the prisoner. In
this respect the Commission has repeatedly indicated that visiting
rights are a fundamental requirement for ensuring respect of the
personal integrity and freedom of the inmate and, as a corollary, the
right to protection of the family for all the affected parties.
Indeed, and particularly because of the exceptional circumstances
of imprisonment, the state must establish positive provisions to
effectively guarantee the right to maintain and develop family
relations. Thus, the
necessity of any measures restricting this right must adjust themselves
to the ordinary and reasonable requirements of imprisonment.
contact visits are not a right, and indeed in many countries, this type
of visit is not even an option. Usually,
the possibility of conducting personal contact visits is largely left to
the discretion of the internal prison authorities. Nevertheless, when
the state regulates the manner in which the right to family is exercised
by prisoners and their families, it cannot impose conditions or carry
out procedures that constitute an infringement of any of the other
rights protected by the Convention, at least without due process of law.
All States Parties to the Convention are obliged to ensure that
the action of the state as well as the organization of its internal
apparatus and legal system are carried out within certain boundaries of
the Commission concludes that when the State of Argentina required Ms. X
and her daughter to undergo a vaginal search or inspection each time
they wished to have a personal contact visit with Mr. X it interfered
unduly with the petitioners' rights to family.
Rights of the Child:
Every minor has the right to the measures of protection required
by his condition as a minor on the part of his family, society, and the
has also ratified the United Nations Convention on the Rights of the
Child, which provides that:
Article 3.1. In all actions concerning children, whether
undertaken by public or private social welfare institutions, courts of
law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.
text of the American Convention recognizes that children must be the
subject of special care and attention, and that the State has a duty to
adopt all "measures of protection required by his condition."
A child is especially vulnerable to violations to his or her
rights because, by virtue of their very status, as children have no
legal standing in most cases to make decisions concerning situations
that may have grave consequences on their well being.
The state has a special duty to protect children and to ensure
that, whenever state authorities take actions that may in any way affect
a child, special care is taken to guarantee the child's rights and well
the instant case the State of Argentina has proposed and performed on a
minor, who did not have the legal capacity to consent, a potentially
traumatic procedure that potentially could have violated a number of the
rights guaranteed by the Convention without observing the requirements
of legality, necessity, reasonableness and proportionality which are
among the necessary conditions to the imposition of any restriction on
the rights of the Convention. Furthermore,
the state did not grant Y the minimum protection against abuse or actual
physical damage that could have been offered by requiring the proper
judicial authority to decide on the propriety of the procedure, and in
the event the measure was deemed necessary requiring that it be
performed by medical personnel. The
Commission does not consider that the existing requirements described by
the Chief of Internal Security to protect minors--that the inspections
be performed in the presence of one or both of the child's parents, and
that the search be less rigorous and seek to preserve a child's sense of
modesty (pudor)--accorded the petitioner adequate protection.
Commission thus concludes that when the prison authorities proposed and
inspections upon Y prior to a physical contact visit with her father,
the State of Argentina violated Article 19 of the Convention.
GOVERNMENT'S OBSERVATIONS TO THE ARTICLE 50 REPORT
September 14, 1995, during its 90th regular session, the Commission
approved Report No. 16/95, based on Article 50 of the Convention.
The report was transmitted with reserved status to the
Government, according to the above mentioned article's second paragraph.
Government of Argentina sent its observations to the report on December
No. 16/95 was transmitted by the Government to the Federal Penitentiary
July 6, 1995, a draft law which sets the standards for the
implementation of prison sentences ("Ejecución de la Pena
Privativa de Libertad") was presented to the Argentine Congress,
with a view to replace the current penitentiary regulations. The
initiative is part of an integral penitentiary reform policy, which
includes the creation in 1994 of an Office for Penitentiary Policy and
Social Readaptation (Secretaría de Política Penitenciaria y de
Readaptación Social), as well as the entry into effect of a Master Plan
for National Penitentiary Policy in 1995.
document by which the National Executive Power presented the draft
...this text adopts the constitutional standards on the matter,
as well as those included in treaties and international pacts, the
recommendations of national and international congresses, particularly
those conducted by the United Nations on the Crime Prevention and
Treatment of Criminals, the most advanced comparative law, and various
pertinent provisions of the draft are transcribed as follows:
Article 158 - The prisoner has the right to communicate
periodically, orally or in writing, with his family, friends,
associates, guardians and lawyers, as well as with representatives of
official institutions and legally recognized private institutions
interested in their social rehabilitation.
In all cases the privacy of the communications shall be
guaranteed, with no restrictions other than those established by court
Article 160 - The visits and mail received or sent by the
prisoner, as well as telephone communications, shall be adjusted to the
conditions, opportunity and supervision determined by the regulations,
which shall not modify the provisions of articles 158 and 159.
Article 161 - The oral or written communications mentioned in
Article 160 may be suspended or restricted only on a temporary basis, by
resolution of the director of the establishment, who shall immediately
inform the competent judge. The
inmate shall be notified of the suspension or temporary restriction of
Article 162 - The visitor shall obey the institution's
regulations, as well as the instructions given by its personnel, and
shall abstain from introducing or attempting to introduce any element
that has not been expressly authorized by the Director.
If this provision is not observed, or if complicity with the
prisoner is verified, or if the proper conduct is not observed, entry to
the establishment shall be suspended, temporarily or permanently, by a
Article 163 - For security reasons, visitors and their belongings
shall be inspected. The
inspection will be carried out or directed, with due respect for human
dignity, according to the procedure established in the regulations, by
personnel of the visitor's same sex.
Manual inspection, wherever possible, shall be substituted by
non-intrusive sensors or other non-manual techniques deemed appropriate
The Commission recognizes the positive measures taken by the
Argentine State to modify its penitentiary system, specifically with
regard to the violation denounced in the instant case.
Commission considers that the State of Argentina has taken the
initiative toward partial compliance of the conclusions and
recommendations of Report No. 16/95, especially with respect to the need
that restrictions to the rights and guarantees protected in the
Convention be prescribed by law.
Report No. 16/95, the Commission concluded that in order to establish
the lawfulness of a vaginal search or inspection in a specific case,
these requisites must be met:
it must be absolutely necessary to achieve the lawful objective
in the particular case;
there must not exist an alternative measure;
it should be determined by judicial order; and
it must be carried out by an appropriate health professional.
163 of the above mentioned draft law, which refers to the substitution
of manual inspections by non-intensive sensors or other appropriate and
effective non-tactile techniques, is in principle consistent with the
Commission's recommendations. However, the cited Article fails to
mention expressly the type of intrusive bodily searches covered in this
report. The Commission reiterates that vaginal inspections, or other
type of intrusive body searches, must be carried out by an appropriate
Commission thus concludes that by imposing an unlawful condition for the
fulfillment of their prison visits without judicial and appropriate
medical guarantees and performing these searches and inspections under
these conditions, the State of Argentina violated the rights of Ms. X
and her daughter Y guaranteed in Articles 5, 11 and 17 of the
Convention, in relation to Article 1.1 which requires the Argentine
State to respect and guarantee the full and free exercise of all the
provisions recognized in the Convention.
In the case of Y, the Commission concludes that the State of
Argentina also violated Article 19 of the Convention.
on these conclusions,
THE INTER-AMERICAN COMMISSION OF HUMAN RIGHTS,
that the State of Argentina adopt the necessary legislation in order to
adjust its provisions to the obligations established by the Convention
as expressed in the instant conclusions and recommendations.
that the State of Argentina periodically inform the Commission about the
process of debate and approval of the above mentioned law, as well as
future regulations based on it.
that adequate compensation be granted to the victims.
121. Decides to
publish this report in its Annual Report to the General Assembly of the
Commissioner Oscar Luján Fappiano, national of Argentina, did not
participate in the discussion and voting on this case, in accordance
to Article 19 of the Regulations of the Commission.
At the request of petitioners, their identities have not been
disclosed because of the minority of one victim and the nature of
the violations denounced.
Court of Appeals, 35972-X y otra; s/ writ of
amparo-17/151-Int.IIda., Buenos Aires, April 25, 1989, para. IV.
Corte Suprema de Justicia, Ruling on the writ of amparo, Tomo
207 del Libro de Sentencias, Buenos Aires, November 21, 1989, pp.
105, para. 3.
The governing regulation in this case, which was not
respected, is Article 28 of the SPF, Public Bulletin No. 1266, which
reads as follows: "Visitors must subject themselves to the search method
used in the unit, if they do not wish to forgo the visit. In any event, the search will be performed by personnel of
the same sex as the searched person."
Public Bulletin No. 1625 provides that "humanitarian
treatment shall be paramount in searches, avoiding any procedure
that might imply an internal indignity..." and that "the
same approach should be used in searching visitors of inmates."
In his opinion on the writ of amparo the Attorney General (Procurador
General de la Nación) stated that:
...the timing of the
writ makes it doubtful that she could have used other than the
normal administrative remedies available because of the long period
of time during which the petitioner was submitted to such searches
and her consequent knowledge of the regulations she brought the writ
oportunidad del reclamo, luego de largo tiempo de verse sometida la
peticionaria a esas revisaciones, lo que importó conocimiento del
reglamento que impugnara, torna al menos dudoso que le asistiera en
el caso otra posibilidad que la de utilizar los mecanismos
administrativos y judiciales comunes...)", Procuración General
de la Nación, 24 de julio de 1989, 531, L.XXXII.
Permanent Court of International Justice, Lotus case,
Judgement No. 9, 1927, Series A No. 10, pp. 31 and European Court of
Human Rights, Handyside Case, Judgement of 7 December 1976, Series A
No. 24, para. 41.
Inter-American Court, Velásquez Rodríguez Case, Judgment of
July 29, 1988, Series C, No. 4, para. 165.
In its advisory opinion
on the Word "Laws", the Court further stated that:
...the protection of
human rights, particularly the civil and political rights set forth
in the Convention, is in effect based on the affirmation of the
existence of certain inviolable attributes of the individual that
cannot be legitimately restricted through the exercise of
governmental power. These are individual domains that are beyond the
reach of the State to which the State has but limited access.
Thus, the protection of human rights must necessarily
comprise the concept of restriction of state power.
Court of Human Rights, the Word "Laws" in Article 30 of
the American Convention on Human Rights, Advisory Opinion OC-6/86 of
May 9, 1986. Series a, No. 6, para.21.
Ibid. para. 166.
The Court has stated that:
....the criteria of
Article 30 are applicable to all those situations where the word
"laws" or comparable expressions are used in the
Convention in respect to the restrictions that the Convention itself
authorizes with respect to each of the protected rights. In effect
the Convention does not limit itself to setting forth a group of
rights and freedoms whose inviolability is assured to each
individual, but also refers to the special circumstances in which it
is possible to restrict the enjoyment or exercise of such right and
freedoms without violating them. Article 30 cannot be regarded as a
kind of general authorization to establish new restrictions to the
rights protected by the Convention, additional to those permitted
under the rules governing each one of these.
Court of Human Rights, The Word "Laws" in Article 30 of
the American Convention on Human Rights, OC-6 of May 9, 1986, Series
A, No. 6, para. 17.
Inter-American Court of Human Rights, Compulsory Membership
in an Association Prescribed by Law for the Practice of Journalism
(Articles 13 and 29 American Convention on Human Rights), Advisory
Opinion OC-5/85 of November 13, 1985. Series A No. 5, para. 67.
OC-5, paragraph 37.
Inter-American Court of Human Rights, the Word
"Laws" in Article 30 of the American Convention on Human
Rights, Advisory Opinion OC-6/86 of May 9, 1986. Series a, No. 6,
In this respect see the Sunday Times Case where the European
Court established that:
....a norm cannot be
regarded as a law unless it is formulated with sufficient precision
to enable the citizen to regulate his conduct: he must be able--if
need be with appropriate advise--to foresee, to a degree that is
reasonable in the circumstances, the consequences which a given
action might entail. Judgement
of April 26, 1979, Series A, vol. 30 (1979) pp.31.
In this respect the Court has stated that:
Within the framework of
the protection of human rights, the word "laws" would not
make sense without reference to the concept that such rights cannot
be restricted at the sole discretion of governmental authorities.
To affirm otherwise would be to recognize in those who govern
virtually absolute power over their subjects. OC-6, Series A No. 6,
OC-5, par. 46, quoting the European Court on Human Rights,
Sunday Times Case, decision 26 April 1979, Series A. No. 30, para.
OC-5, par. 46.
In the case of X & Y v. the Netherlands, the
European Court made such a connection regarding the parallel
provision, Article 8, in the European Convention on Human Rights,
Judgment of 26 March 1985, Series A Vol. 91, para. 22.
Article 37 of the United Nations Standard Minimum Rules on
the Treatment of Prisoners states:
Prisoners shall be
allowed under necessary supervision to communicate with their family
and reputable friends at regular intervals, both by correspondence
and by receiving visits.
Standard Minimum Rules
on the Treatment of Prisoners, adopted by the First United Nations
Congress on the Prevention of Crime and the Treatment of Offenders,
held at Geneva 1955 and approved by the Economic and Social Council
by its resolutions 663 C (XXIV) of 31 July 1957 and 2076(LXII) of 13
On this topic, see the following Commission reports:
Miskito Case, pp. 31-2; Cuba Case, p. 62 (1983); and Uruguay
Case (1983-84), p. 130, paragraph 10.