‘Ceci N’est Pas Une Fouille À Corps’: The Denial of Strip Searches in Belgian Prisons

Abstract

Purpose -This chapter reconstructs and critically examines the recent history of strip searches in one European jurisdiction, that is, Belgium. About ten years ago Belgian parliament adopted its first law on prisoners' rights. A major part of the Prison Act of 12 January 2005 deals with disciplinary and control measures. Article 108, in particular, has provoked quite some controvery. It introduced a clear distinction between the (more superficial) search of an inmates' clothes on the one hand, and the (substantially more intrusive) measure of strip searching on the other hand. The main difference between these two measures is that the latter involves forcing prisoners to strip naked. Because of their intrinsic intrusiveness, such strip searches were meant to be exceptional measures: they should only take place following an individual assessment and decision by the prison governor. In practice, however, the prison administration tended to interpret Article 108 2 somewhat differently and the line between searching an inmate's clothes on the one hand, and strip searching on the other, became blurred.Design / methodology / approach -We first discuss the problem of order in prisons and explore how strip searches have been regulated within Europe. We then reconstruct the recent history of the regulation of strip searches in Belgium. In order to make sense of this history, we mobilize some of the ideas of Stanley Cohen's sociology of denial, in particular, his distinction between literal, implicatory and interpretive denial, and apply these to the history of strip searches in Belgium.Findings -A consistent finding from this chapter is that the Belgian prison administration hasthrough creative manoeuvres of interpretive denialbeen able to circumvent the new barriers that were erected by the Prison Act of 12 January 2005 and, in doing so, it has been able to continue stripping detainees naked without an individualized decision from the prison governor. The approach that we develop throughout this chapter helps us better appreciate the limits of legal reform and top down (European) regulation of strip searches.Originality / value of power -The chapter demonstrates that Stanley Cohen's work on denial is not only useful for scholars who do research on gross human rights violations but also for interpreting more down-to-earth aspects of criminal justice systems across the globe.

Monitoring Prisons in Europe: Understanding Perspectives of People in Prison and Prison Staff

“…Daniela Cernko (2014) incorporates interviews with prison officials to examine German government responses to CPT recommendations. Tom Daems (2017) elaborates efforts to examine state responses to CPT recommendations by devising a response typology to categorize the different ways in which the Belgian government responds to CPT recommendations. By analyzing CPT findings and recommendations in this way, Daems identifies an implementation gap that undermines the work of the CPT.…”

“…The following sections explore prisoner and staff responses to CPT recommendations to assess their effectiveness-that is, to determine the implications of CPT recommendations when implemented in the prison. Prisoner and staff responses to CPT recommendations are presented alongside state responses, which are characterized according to the typology set out by Lappi-Seppälä and Koskenniemi (2018) and Daems (2017): agreement; denial/disagreement; non-compliance; evasion; and information provided. The intention of exploring recommendations from the perspective of those living and working in prison is to identify areas where these actors may not agree or may have alternative suggestions in response to CPT recommendations.…”

“…The CPT had "misgivings" about this practice and recommended that "prescribed medicines should preferably be distributed in all prisons by qualified health-care staff" (CPT 2018c, 90). The Norwegian government did not agree with this recommendation, which can be characterized as denial/ disagreement, according to the typology set out by Lappi-Seppälä and Koskenniemi (2018) and Daems (2017). Instead, it insisted that, in situations where a prisoner is deprived of medicine for safety reasons, prison officers are tasked with providing practical assistance in distributing medication rather than health-care provision.…”

“…2 However, efforts to give substance to the concept of effective monitoring have thus far not included an analysis of what effective monitoring might look like from the perspective of the prison-that is, those who live and work within its walls. Much of our understanding of how monitoring operates in practice remains at the level of state responses to monitoring bodies-whether, and to what extent, states have implemented OPCAT, for example (Hardwick and Murray 2019;) and how states have responded to recommendations of the CPT (Cernko 2014;Daems 2017;Lappi-Seppälä and Koskenniemi 2018;Aizpurua and Rogan 2019).…”