Case Number

HCJ 355/79

Date Decided

4-10-1980

Decision Type

Original

Document Type

Full Opinion

Abstract

Facts: The Prison Service was struggling with the phenomena of drugs smuggling into the Ramla Detention Centre by inmates who swallowed drugs packages while outside the Centre. Prison authorities decided to deal with the matter by performing enemas on detainees. On July 31, 1979 the Prison Authority issued a directive regulating a policy of administering enema’s to detainees, where the warden of the Detention Centre established probable cause to suspect that the detainee was smuggling drugs inside his body. The procedure was to be performed discreetly in a manner consistent with all hygiene rules and medical guidelines. The directive allowed carrying out an enema against the will of the detainee if a doctor provided assurances that it would not be detrimental to his health. If the inmate resisted and the medical staff believed his resistance made it is impossible to conduct the procedure, the detainee would be put into solitary confinement for no longer than 48 hours, in order to supervise the discharge of the drugs. Each of the Petitioners had been administered an enema, but no drugs were found. The main question arising from the petitions was whether the Respondents were authorized to perform enemas on the detainees without their consent.

Held: Every person in Israel, including inmates and detainees, has a fundamental right to physical wellbeing and human dignity. The performance of enemas on detainees without their consent and without medical justifications, infringes these rights. Therefore, the Court held that for the Prison Service to be able to administer such procedure there must be a statute allowing them. It was determined that although Section 5 of the 1971 Prisons Ordinance permitted the searching for and confiscation of prohibited items, it did not allow for the search to be invasive. The Court ruled that the term "search" used in the Ordinance refers only to search of [over] the inmate's body and not to an invasion of his body. It reflected that a search inside the body of the person may lead to consequences that are inconsistent with human rights in Israel. The court determined that the authority to maintain order and discipline within the prison does not include the power to conduct invasive searches. Thus, the Court adjudicated that the directive that allowed for the performance of enemas on detainees, without their consent, and the procedures that were carried out in accordance with it, were illegal. It further determined that the best way to deal with the matter concerned was through primary legislation. President Landau preferred not to provide the Knesset with guidance on how to resolve the issue and determine when it is justified to conduct an invasive search against the detainee's will. He noted that the prevention of drug crimes in detention facilities and prisons is necessary, not only in order prevent lawlessness, but also for the protection of weaker prisoners from stronger ones.

Keywords

Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Prisoners’ Rights

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