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Cite as:  Crim LR 717, 20 BHRC 575,  ECHR 721, (2007) 44 EHRR 32, 44 EHRR 32
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CASE OF JALLOH v. GERMANY
(Application no. 54810/00)
11 July 2006
This judgment is final but may be subject to editorial revision.
In the case of Jalloh v. Germany,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Mr L. Wildhaber, President,
Mr C.L. Rozakis,
Sir Nicolas Bratza,
Mr B.M. Zupančič,
Mr G. Ress,
Mr G. Bonello,
Mr L. Caflisch,
Mr I. Cabral Barreto,
Mr M. Pellonpää,
Mr A.B. Baka,
Mr R. Maruste,
Mrs S. Botoucharova,
Mr J. Borrego Borrego,
Mrs E. Fura-Sandström,
Mrs A. Gyulumyan,
Mr K. Hajiyev,
Mr J. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having deliberated in private on 23 November 2005 and on 10 May 2006,
Delivers the following judgment, which was adopted on the last mentioned date:
There appeared before the Court:
(a) for the
Mrs A. Wittling-Vogel, Ministerialdirigentin, Agent,
Mr H. Brückner, Oberregierungsrat,
Mrs C. Kreis, Staatsanwältin,
Mr J. Klaas, Oberstaatsanwalt,
Mr K. Püschel, Professor (Institut für Rechtsmedizin Hamburg),
Mr H. Körner, Oberstaatsanwalt, Advisers;
(b) for the applicant
Mr U. Busch, Rechtsanwalt, Counsel,
Mr A. Busch, Unternehmensberater, Adviser.
The Court heard addresses by Mr A. Busch and Mrs A. Wittling-Vogel as well as their answers and the reply of Mr K. Püschel to questions put to them.
I. THE CIRCUMSTANCES OF THE CASE
A. Investigation proceedings
B. Domestic court proceedings
II. RELEVANT DOMESTIC, COMPARATIVE AND INTERNATIONAL LAW AND PRACTICE
1. Domestic law and practice
a. The Basic Law
“Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”
“(1) Every person shall have the right to free development of his personality in so far as he does not violate the rights of others or offend against the constitutional order or the moral law.
(2) Every person shall have the right to life and physical integrity. ...”
b. The Code of Criminal Procedure
“(1) A physical examination of the accused may be ordered for the purpose of establishing facts of relevance to the proceedings. To this end, blood samples may be taken and other bodily intrusions effected by a doctor in accordance with the rules of medical science for the purpose of examination without the accused’s consent, provided that there is no risk of damage to his health.
(2) Power to make such an order shall be vested in the judge and, in cases in which delay would jeopardise the success of the examination, in the public prosecutor’s office and officials assisting it ...”
“(1) The freedom of the accused to make decisions and to manifest his will shall not be impaired by ill-treatment, induced fatigue, physical interference, the administration of drugs, torment, deception or hypnosis. Coercion may be used only in so far as it is permitted by the law on criminal procedure. Threatening the accused with measures that are not permitted under the law on criminal procedure or holding out the prospect of an advantage that is not contemplated by statute shall be prohibited.
(2) Measures which impair the accused’s memory or ability to understand and accept a given situation (Einsichtsfähigkeit) shall not be permitted.
(3) The prohibition under subsections (1) and (2) shall apply even if the accused has consented [to the proposed measure]. Statements obtained in breach of this prohibition shall not be used [in evidence], even if the accused has agreed to their use.”
“Pursuant to section 81a § 1, first sentence, of the Code of Criminal Procedure, a physical examination of the accused may be ordered for the purpose of establishing facts of relevance to the proceedings. ...
(a) Contrary to the view taken by the appellant, legal commentators are almost unanimous in agreeing that the administration of emetics in order to obtain quantities of drugs which the accused has swallowed involves a bodily intrusion within the meaning of that provision (see HK-Lemke, StPO, 2nd edition, § 9; Dahs in Löwe Rosenberg, StPO, 24th edition, § 16; KK-Senge, StPO, 4th edition, §§ 6, 14; regarding section 81a of the Code of Criminal Procedure respectively; Rogall, SK StPO, section 81a, § 48 and NStZ 1998, pp. 66, 67; Schaefer, NJW 1997, pp. 2437 et seq.; contra: Frankfurt Court of Appeal, NJW 1997, p. 1647 with note Weßlau, StV 1997, p. 341).
This intrusion also does not violate human dignity protected by Article 1 § 1 of the Basic Law or the principle against self-incrimination contained in Article 2 § 1 in conjunction with Article 1 § 1 of the Basic Law. Pursuant to Article 2 § 2, sentence 3, of the Basic Law interferences with these basic rights are permitted if they have a statutory basis. The Federal Constitutional Court has already found on several occasions that, as a statutory provision enacted by Parliament, section 81a of the Code of Criminal Procedure meets this requirement ... Furthermore, it has found more specifically that the administration of emetics in reliance on that provision did not give rise to any constitutional objections of principle either (see Federal Constitutional Court, StV 2000, p. 1 – the decision in the present case). It did not, therefore, find it necessary to discuss in detail the opinion expressed by the Frankfurt (Main) Court of Appeal (NJW 1997, pp. 1647, 1648) and which is occasionally shared by legal writers (see Weßlau, StV 1997, pp. 341, 342), ... that the administration of emetics forces the accused to contribute to his own conviction and to actively do something he does not want to, namely regurgitate. This court does not share the [Frankfurt Court of Appeal’s] view either, as the right of an accused to remain passive is not affected by his or her having to tolerate an intervention which merely provokes ‘involuntary bodily reactions’. ...
(e) ... th[is] court does not have to decide whether the evidence obtained by the administration of emetics may be used if the accused has refused to comply with his duty to tolerate the measure and his resistance to the introduction of a tube though the nose has been overcome by physical force. That point is not in issue in the present case. ... The Regional Court ... stated that [on the facts of] the case decided by the Frankfurt (Main) Court of Appeal it too would have excluded the use of the evidence obtained because of the clearly disproportionate nature of the measure. It did, however, expressly and convincingly demonstrate that the facts of the present case were different.”
“The forced administration of emetics was not covered by the Code of Criminal Procedure. Even section 81a does not justify the administration of an emetic by force. Firstly, the administration of an emetic constitutes neither a physical examination nor a bodily intrusion carried out by a doctor for examination purposes within the meaning of that provision. It is true that searching for foreign objects may be justified by section 81a ... However, the emetic was used not to search for foreign objects, but to retrieve objects – whose presence was at least probable – in order to use them in evidence. ... This aim was more akin to searching for or seizing an object within the meaning of sections 102, 94 et seq. of the Code of Criminal Procedure than to a physical examination ... – although those provisions do not, on the face of it, include forcible interference with a person’s physical integrity as a possible measure. ...
Secondly, an accused is not the object of criminal proceedings. ... The forced administration of emetics violates this principle of passivity (“Grundsatz der Passivität”), since its purpose is to force the accused actively to do something that he is unwilling to do, namely regurgitate. This is neither permitted under section 81a of the Code of Criminal Procedure nor compatible with the position of the accused in criminal proceedings ...
Consequently, the conduct of the prosecuting authorities constitutes unlawful interference with the accused’s physical integrity (Article 2 § 1, first sentence, of the Basic Law). ...
The forcible administration of emetics in the absence of any legal basis therefor also violates the duty to protect human dignity and the accused’s general personality rights (Articles 1 § 1 and 2 § 1 of the Basic Law). ...
The prohibition on obtaining the evidence [in that manner] and the other circumstances of the case prevent this evidence from being used in court. ...”
c. Medical expert opinions on the forced administration of emetics to suspected drug dealers
d. Practice concerning the administration of emetics by force in Germany
2. Public international law, comparative law and practice
a. United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
“1. For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person fur such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
“Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”
“1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.”
b. Case-law of United States courts
“Applying these general considerations to the circumstances of the present case, we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents – this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.
It has long since ceased to be true that due process of law is heedless of the means by which otherwise relevant and credible evidence is obtained. This was not true even before the series of recent cases enforced the constitutional principle that the States may not base convictions upon confessions, however much verified, obtained by coercion. ... It would be a stultification of the responsibility which the course of constitutional history has cast upon this Court to hold that in order to convict a man the police cannot extract by force what is in his mind but can extract what is in his stomach.
To attempt in this case to distinguish what lawyers call ‘real evidence’ from verbal evidence is to ignore the reasons for excluding coerced confessions. Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community’s sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society.”
“19. Williams directs us to Rochin v. California (1952), 342 U.S. 165, ... one of the prominent cases on intrusive searches. ...
21. Rochin is not dispositive, however. After Rochin, the United States Supreme Court decided Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, in which a police officer ordered an individual suspected of driving while intoxicated to submit to a blood test at the hospital where he was being treated for injuries sustained in an automobile collision. The Supreme Court noted that ‘the Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.’ ... Finding no Fourth Amendment violation, the court set forth several criteria to be considered in determining the reasonableness of an intrusive search: 1) the government must have a clear indication that incriminating evidence will be found; 2) the police officers must have a warrant, or, there must be exigent circumstances, such as the imminent destruction of evidence, to excuse the warrant requirement; and 3) the method used to extract the evidence must be reasonable and must be performed in a reasonable manner ...
23. Applying the Schmerber factors to the facts of this case, it is apparent that the pumping of Williams’ stomach was a lawful search and seizure. First, the officers observed Williams in an area known for illegal drug activity engage in a hand-to-hand transaction indicative of drug activity. When he saw the officers, he put whatever was in his hand in his mouth and then ran away. This behavior was a ‘clear indication’ to the officers that Williams had secreted drugs in his mouth. Moreover, it was reasonable for the officers to conclude that Williams’ life could be in jeopardy after they observed crack cocaine in his mouth and saw him trying to chew it and swallow it. Furthermore, Williams was destroying the evidence necessary to convict him of drug possession. Accordingly, this case falls within the exigent circumstances exception to the warrant requirement.
24. Finally, it is apparent that the method and manner of the search were not unreasonable. The facts indicate that a physician administered Williams’ medical treatment in a hospital setting, according to accepted medical procedures ...
25. In Schmerber, the United States Supreme Court expressed an acceptance of a search conducted in a reasonable manner by a physician. The physician is certainly more qualified than a police officer to determine the extent to which a procedure is life threatening.
26. Assuming that [a defendant] swallowed the cocaine, if the drugs were packaged in such a way as to be impervious to intestinal processes, the physician would certainly be in a position to pump the stomach of the [defendant], which is a reasonable medical procedure less traumatic than the forced emetic in Rochin. Again, this is the kind of conduct that Schmerber finds more reasonable because it is done in the confines of a hospital with appropriate medical supervision.”
c. Practice concerning the administration of emetics in the member States of the Council of Europe
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties’ submissions
1. The applicant
2. The Government
B. The Court’s assessment
1. Relevant principles
2. Application of those principles to the present case
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for his private ... life ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
A. The parties’ submissions
1. The applicant
2. The Government
B. The Court’s assessment
1. General principles established under the Court’s case-law
2. Application of those principles to the present case
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicant, within three months, the following amounts:
(i) EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage;
(ii) EUR 5,868.88 (five thousand eight hundred and sixty-eight euros and eighty-eight cents) in respect of costs and expenses;
(iii) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 11 July 2006.
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following concurring and dissenting opinions are annexed to this judgment:
(a) Concurring opinion of Sir Nicolas Bratza;
(b) Concurring opinion of Mr Zupančič;
(c) Dissenting opinion of Mr Wildhaber and Mr Caflisch;
(d) Joint dissenting opinion of Mr Ress, Mr Pellonpää, Mr Baka and Mr Sikuta;
(e) Dissenting opinion of Mr Hajiyev.
CONCURRING OPINION OF JUDGE
Sir Nicolas BRATZA
I have voted with the majority of the Court on all aspects of the case but have reservations about certain parts of the reasoning in the judgment in respect of both Article 3 and Article 6 of the Convention.
My principal reservation with regard to the reasoning on Article 3 relates to paragraph 77 of the judgment in which, in reaching the conclusion that the treatment to which the applicant was subjected was inhuman and degrading, the majority place particular emphasis on the fact that the forcible medical intervention was not “necessary” to obtain the evidence that the applicant had been dealing in drugs. It is said that, because the applicant was only a street dealer and had, at the time of his arrest, clearly not been dealing in drugs on a large scale, the forcible administration of emetics was not indispensable to obtain the evidence against him and the prosecuting authorities could simply have waited for the drugs to have passed out of the applicant’s system naturally in accordance with the practice in many other member States of the Council of Europe.
I readily accept that States are confronted with particularly acute problems in combating the scourge of drug-trafficking, notably in obtaining admissible evidence to secure convictions of major drug dealers. I can accept, too, that if a medical “necessity” is convincingly shown to exist for forcibly administering emetics rather than waiting for nature to take its course, this would, according to the constant jurisprudence of the Court, constitute a very relevant factor in determining whether the treatment to which an applicant was subjected contravened Article 3 of the Convention (see paragraph 69 of the judgment). What I cannot, however, accept is the implication in paragraph 78 that, even where no medical necessity can be shown to exist, the gravity of the suspected offence and the urgent need to obtain evidence of the offence, should be regarded as relevant factors in determining whether a particular form of treatment violates Article 3. The Court has repeatedly emphasised the special character of the guarantees under Article 3, which prohibits in absolute terms the use of torture or inhuman or degrading treatment or punishment, irrespective of the nature of the victim’s conduct and which does not allow for the balancing of competing public interests against the use of treatment which attains the Article 3 threshold. Just as the urgent need to obtain evidence of a serious offence would not therefore justify resort to treatment which would otherwise attain that threshold, so also I consider that the threshold cannot
change according to the gravity of the suspected offence or the urgency of the need to obtain evidence of the offence.
For the same reason, I do not consider that the question whether particular treatment violates Article 3 should depend on whether or not the aim sought by the use of the treatment (in this case, the evidence of drug dealing) could be obtained by other methods which did not involve such treatment. The relevance of the fact that, according to the material before the Court, few if any other member States appear to permit the forcible administration of emetics to suspected drug offenders, under any circumstances and whatever the gravity of the suspected offence, seems to me to lie in the confirmation it provides of what is to be regarded as acceptable treatment of suspects.
In my view, for the other reasons set out in the judgment with which I fully concur, the treatment to which the applicant was subjected did reach the threshold of Article 3 and was in violation of that Article.
The Court’s finding of a violation of Article 6 of the Convention is based on the principal ground that the use in evidence of drugs obtained by the forcible administration of emetics in violation of Article 3 of the Convention rendered his trial as a whole unfair. The Court, however, goes on in its judgment to address the applicant’s additional argument that the manner in which the evidence was obtained and the use made of it at his trial undermined his right not to incriminate himself, before concluding that it would have been prepared to find a violation of Article 6 on this further basis.
I can, in general, agree with the Court’s principal ground, and its reasoning, for finding a violation of Article 6 and would echo the words of Justice Frankfurter, in delivering the opinion of the Supreme Court of the United States in Rochin v. California, that “the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating a crime too energetically”. While, as the Court has frequently observed, the Convention does not lay down any rules on evidence as such, the admissibility of evidence being primarily a matter for regulation by national law, the use of evidence obtained by treatment violating the fundamental values enshrined in Article 3 appears to me to offend against the whole concept of a fair trial, even if the admission of such evidence is not – as it was in the present case - decisive in securing a conviction. As in the case of the use of coerced confessions, it is the offensiveness to civilised values of fairness and the detrimental effect on the integrity of the judicial process, as much as the unreliability of any evidence which may be obtained, which lies at the heart of the objection to its use.
It is true that the treatment to which the applicant was subjected has been found to be inhuman and degrading rather than torture and that the exclusionary rule in Article 15 read with Article 16, of the Torture Convention (see paragraph 48 of the judgment) expressly distinguishes between the admission of evidence obtained by torture and that obtained by the other forms of ill-treatment. However, not only is the borderline between the various forms of ill-treatment neither immutable nor capable of precise definition, as the Court has previously recognised, but the fairness of the judicial process is in my view irreparably damaged in any case where evidence is admitted which has been obtained by the authorities of the State concerned in violation of the prohibition in Article 3.
I would thus be prepared to go further than the majority of the Court who preferred to leave open the general question whether the use of evidence obtained by acts qualified as inhuman and degrading would automatically render a trial unfair, limiting themselves to a finding of unfairness in the particular circumstances of the present case. While I could accept this narrower basis for finding a violation of Article 6, where, again, I differ from the majority of the Court is in the suggestion in paragraph 107 of the judgment that the result under Article 6 might have been different if the applicant had not been dealing in drugs on a small scale and if the public interest in securing the applicant’s conviction could thus be considered to be of greater weight. For substantially the same reasons as I have already expressed under Article 3, the scale of the drug dealing involved seems to me to be immaterial to the Convention issues raised under Article 6. The public interest in securing the applicant’s conviction could not in my view in any circumstances have justified the use in evidence of drugs obtained by the treatment to which he was subjected.
Having reached this conclusion, I have not found it necessary or appropriate to address the applicant’s additional argument relating to self incrimination and would not base my finding of a violation of Article 6 on this further ground, which gives rise to problems of exceptional complexity and difficulty.
CONCURRING OPINION OF JUDGE ZUPANČIČ
Although I am in agreement with the result reached in this important case, so far as it goes, I believe that (1) this indeed is a classical case concerning torture stricto sensu, (2) that contaminated evidence obtained via this “shocking” behaviour of police should be strictly excluded and (3) that the reasons for excluding the contaminated evidence do not derive from the torture per se. Because legal process is a civilised replacement of the resolution of conflicts by uncivilised physical prevalence, the abandonment of violence is its foremost purpose. Indeed, it is its constitutive component. It is no accident that under different similar dictions the formula “nemo tenetur seipsum prodere” goes back to the very origins of Western legal tradition.
In Selmouni v. France we integrated Article 1 of the United Nations Convention against Torture1 (hereinafter: U.N. C.A.T.) into our own case law. Because in the case before us the meaning of “severe pain and suffering” determines everything else, the excellent definition of torture, in Article 1 of the U.N. C.A.T., which the European Convention does not contain, bears reiterating:
[T]he term "torture" means any act by which  severe pain or suffering, whether physical or mental, is  intentionally inflicted on a person for such purposes as [a] obtaining from him or a third person information or a confession, [b] punishing him for an act he or a third person has committed or is suspected of having committed, or [c] intimidating or coercing him or a third person, or [d] for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a  public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Torture, in other words, is (1) a delictum proprium; it can only be committed by a public official or other person acting in an official capacity.
(2) It requires specific intent (dolus specialis), i.e. conduct must be intended or acquiesced in not only to inflict severe pain or suffering, but also (a) to obtain from the person tortured or from a third person information or a confession, (b) to punish him for an act he or a third person has committed or is suspected of having committed, (c) to intimidate or coerce him or a third person, or (d) to so act for any reason based on discrimination of any kind.
Because acquiescence on the part of the public official suffices, the above dolus specialis may at a minimum also be dolus eventualis in cases where, for example, the public official in charge at the police station knowingly acquiesces in torture perpetrated by his subordinates. Moreover, the phrase defining the specific intent is open-ended (“for such purposes as”), i.e. it permits the use of analogia inter legem. Finally, torture is a result crime, i.e. there is no crime of torture unless there is, (3) as a consequence of the conduct of the public officials, (4) severe physical or mental pain or suffering.
Therefore, the key question in the case before us, and increasingly so in other similar considerations, is whether a particular conduct causes “severe pain and suffering” – or something less than that.2 Torture, in other words, is an aggravated form of inhuman and degrading treatment.3 Whether in a particular case the pain or suffering of the victim of inhuman and degrading treatment was severe, is a question of fact to be determined by the criminal court in which the offence of torture is being prosecuted. According to medical science, the subjective threshold of pain may vary a great deal from one person to another. Moreover, the physical invasiveness of the procedure is not decisive. Letting the water drop for hours on the shaved head of the person, as in well-known Japanese form of torture during World War II, may not seem very invasive, yet it clearly caused severe suffering. Concerning the practice of forced feeding at Guantanamo, the U.N. Special Reporter on Torture, Mr. Manfred Nowak, carefully stated: "If these allegations are true then this definitely amounts to an additional cruel treatment”.4 If, in the considered opinion of one of the world’s leading experts on human rights forced feeding amounts to “cruel treatment” then forced vomiting, at a minimum, is also “cruel”. The crucial difference, of course, is that forced feeding is presumably in the interest of the person subjected to it, whereas, despite feeble allegations to the contrary, forced vomiting is not. The purpose of forced vomiting is to obtain evidence. Forced feeding introduces nourishment, whereas the forced insertion of the tube in our case introduces an emetic. The consequence of forced feeding is the nutritional restoration of the starved individual, the consequence of forced vomiting is convulsive involuntary vomiting and sometimes death. The forced feeding may be accompanied by anxiety due to the physical insertion of the tube but not as to the consequences of its insertion. In the case of forced vomiting, especially if the person subjected to this procedure is aware of preceding instances of concomitant death, the anxiety is subjectively more severe and objectively, at that, well-founded. Forced feeding lacks the specific intent necessary for the perpetrated conduct to amount to torture yet it can nevertheless be “inhuman and degrading”. The specific intent in cases of forced vomiting fits the definition of torture as regards the required subjective motivation of the perpetrator of this conduct, which in the language of Justice Frankfurter, shocks the conscience.
Nevertheless, except in extreme cases of mistreatment (electroshocks, Palestinian hanging, bastonade etc.), it is impossible to generalize. The U.N. Convention against Torture is predicated on the idea that the State parties will incriminate torture precisely as defined in the above cited article 1, which Germany has not done although it has repeatedly been urged to do so by the U.N. Committee against Torture. Once prosecuted, the consequences of mistreatment can become a question of fact at the trial of the alleged torturer. This question of fact may be determined e.g. by questioning the victim. In other words, the definition of torture in U.N. C.A.T. is not predicated on the possibility that the State Signatory to the Convention will introduce and perpetuate a practice of obtaining evidence that not only results in its refraining from prosecuting the perpetrators but also gives official endorsement for such abhorrent conduct. The applicant, Mr. Jalloh, has not been treated as a victim in any German criminal proceedings and has thus never been given the possibility to testify. In other words, Mr. Jalloh could not claim that his pain and suffering were severe and the German courts have never been given the opportunity to examine this non prosecuted issue.
The issue comes totally unexplored before this Court. However, as in other analogous situations, the burden would clearly be on the State to show that Mr. Jalloh, despite the fact that he had to be restrained by several policemen during this traumatizing invasive procedure, possessed a sufficiently elevated threshold of pain and a sufficiently stable nervous system for the procedure of forced vomiting not to cause him severe anxiety, anguish, fear, and physical pain – not to mention the medical sequellae. For this reason, I maintain that the issue is not only whether in general forced vomiting produces severe pain and suffering but whether in this particular case such pain and suffering did in fact occur.
The burden is on the Government. In the absence of proof to the contrary and given the principle that everyone is presumed to know the natural consequences of their acts, I am constrained to maintain that the pain and the suffering in this particular case were severe. Thus, we ought to speak of torture.
The second question concerns the use, by the German Courts, of the extracted cocaine packages as evidence instrumental in obtaining Mr. Jalloh’s conviction.
In Rochin v. California5 Justice Douglas stated: “[I] think that words taken from [the suspect’s] lips, capsules taken from his stomach, blood taken from his veins are all inadmissible provided they are taken from him without his consent. They are inadmissible because of the command of the Fifth Amendment.”6 There are seemingly pragmatic reasons for this prescriptive position to have been weakened by subsequent case-law to the contrary (see paragraphs 51-52 of the judgment).
Essentially, however, the problem was that the rationale for the prescriptive norm treated as such by Justice Douglas is too elemental – see infra the quote from Wigmore – to be immediately discernible. As a consequence, the exclusionary rule, which is simply the preventive remedy and the alter ego of the privilege against self-incrimination, has been reduced, mostly through the consistent commitment of Justice Rehnquist, to a manipulable instrumental rule deriving from the need to deter police misconduct. As such it was yet interpreted, absurdly, in terms of its marginal utility.
A different kind of misunderstanding is apparent in Saunders v. United Kingdom, judgment of 17/12/1996, Reports 1996-VI – our own leading case on the exclusion of contaminated evidence:
[68.] The Court recalls that, although not specifically mentioned in Article 6 of the Convention, the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfillment of the aims of Article 6 [...]. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence contained in Article 6 para. 2 of the Convention. [...] [69.] The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing.
in Saunders our Court, presumably because it derived both the
privilege against self-incrimination and the exclusionary rule
from the presumption of innocence, came to the suggestion that only
audible words extracted from the mouth of the suspect are
inadmissible in evidence. Moreover, by the same token evidence
extracted by the cruelest torture
– imagine that the suspect in our case was intentionally tormented in order to make him cough-up the packages –, is admissible as long as “it has an existence independent of the will of the suspect.”
This is in clear contradiction with article 15 of the U.N. Convention against Torture. That provision mandates the strict exclusion of all evidence from the direct or indirect cognizance of the judges if it is obtained through torture. No insubstantial distinction is made here between verbal and non verbal evidence.7 In other words, while Saunders is an important case especially because it inextricably connects the two features of the same principle – the privilege against self-incrimination and the exclusionary rule – its rationale is not likely to withstand the test of time.
Yet the true raison d’être for the privilege against self incrimination is very simple.
The reasons must be sought in the rudimentary rationale of the whole legal process as the civilized alternative to the resolution of conflict by combat. This very rationale was put succinctly by John Henry Wigmore, the foremost authority on the law of evidence:
"to comply with the prevailing ethic that the individual is sovereign and that proper rules of battle between government and individual require that the individual not be bothered for less than good reason and not be conscripted by his opponent to defeat himself...."8
Wigmore’s reference to the “proper rules of battle” may have been so understood, but it is certainly not a metaphor. In the context of a legal process as a civilised alternative to barbaric combat, “proper rules of battle” most certainly do not contain a licence to use force, any force. The purpose of the “legal battle” is precisely to replace the logic of the real combat, i.e. to replace the logic of power with the power of logic. In legal process, most fundamentally, the use of force as a means of conflict resolution is replaced with logical compulsion. The mere fact that the battle happens between “government and individual”, as in criminal law, cannot change this most basic implication.
If force is nevertheless used to obtain evidence whose unwilling source is Wigmore’s individual facing the powerful state police apparatus it is fair to say there has been a regression to combat and that the whole criminal process in its principal intention is subverted and deprived of legitimacy. The executive branch of the state, in other words, has relapsed into pre rule of-law routine. To paraphrase Justice Frankfurter, these are barbaric methods too close to war of everybody against everybody to permit of legalistic differentiation.
The courts that admit such evidence, because at a minimum they acquiesce in such cruel practices, are ex post facto accomplices to such cruel practices.
The issue, therefore, is not only whether Mr. Jalloh had been tortured or treated inhumanly and degradingly. The whole system of law enforcement was exposed to degradation that was far more critical and perilous.
worrisome in all of this, however, is the already apparent change in
the Zeitgeist and the consequent degradation of minimal
standards. What in 1952 was patently “conduct that shocked the
has in 2006 become an issue that must be extensively – and not
just in this case
– pondered, argued and debated. Despite their apparent evolution, this transmutation has little to do with the scholarly differentiation of juristic standards as, for example, between “inhuman and degrading treatment” on the one hand and “torture” on the other. Particular conduct on the part of the police will or will not shock the conscience of those appointed to consider it and to assess it. If it does they will condemn it as torture. If it does not they will deem it tolerable.
This assessment derives from a certain hierarchy of values – assimilated by everyone from the policeman holding down the person in whom a tube to be inserted a through which an emetic will be administered, to the medical doctor administering the tube and the emetic, to the judge admitting evidence so cruelly obtained. These hierarchies of values are the real origin of all the secondary ratiocination and, more worrisome, often the apparent lack of sensibility and interest.
In other words, human rights are not only a matter of pedantic legal reasoning. They are also a subject matter of a value judgment. True, only when this value judgment is converted into a verbally articulate legal standard can it sustain the rule of law. It is a mistake, however, to forget that at bottom – at the origin of the very legal standard to be subsequently applied –, lays a moral resolution of those who not only have opinions or even convictions – but also the courage of those convictions.
DISSENTING OPINION OF JUDGES WILDHABER AND CAFLISCH
To our regret we cannot agree that the conduct of the German authorities in the instant case amounted to inhuman and degrading treatment and that, consequently, Article 3 of the Convention has been breached. While we do subscribe to the principles set out in paragraphs 67 to 73 of the judgment, these principles have not, in our view, been correctly applied to the present case.
A first observation to be made is that, unlike Article 8 of the Convention, Article 3 deals with torture and mistreatment assimilable to it. The treatment proscribed by Article 3 is, to a large extent, inflicted with the intention of punishing an individual or making him confess to a crime. As pointed out in Article 1 of the 1984 United Nations Convention against Torture, “torture” means “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind” by persons acting in an official capacity. None of this has happened in the present case, which involved the attempt of a suspect to destroy evidence by swallowing it. This attempt could not, it is true, be thwarted without using force, but that use of force had nothing to do with the motivations usually underlying treatment contrary to Article 3. In addition, it would have been unnecessary if the applicant had not tried to make the evidence disappear or had consented to its recovery. Therefore, the present case does not fit into the categories of conduct prohibited by Article 3 of the Convention.
The majority of the Court argues that the forcible method used on the applicant can be resorted to only after an anamnesis has been performed by a doctor and the health risks run by the individual concerned carefully weighed. The Government contends that an anamnesis was performed, while the applicant asserts the contrary. We fail to see why the latter rather than the former should be believed and how, indeed, the applicant could make such an assertion since he claims to have no knowledge of German and very little English (the fact of the matter being, though, that he has enough German or English to sell his drugs). It can be argued, therefore, that, because of the suspect’s failure to cooperate, only a partial anamnesis took place and that the German authorities did what they thought right and proper to secure the evidence, on the one hand, and to minimise the risks to the applicant’s
health, on the other – an applicant who did not, incidentally, by engaging in drug-trafficking, show much regard for the health of others.
The majority also relies on an argument of proportionality by noting that the applicant had not been “offering drugs for sale on a large scale” since he was able to conceal them in his mouth, that this circumstance was reflected in the relatively lenient sentence (six months on probation) imposed on him and that the evidence required could have been obtained via natural elimination rather than by the administration of emetics. This seems a strange line of argument: the more important the dealer, the more licit the use of emetics. The majority appears to value the health of large dealers less than that of small dealers. To us the scale of the trafficking is not decisive when it comes to assessing proportionality.
pointed out by the majority (judgment, § 82), the manner in
which the impugned measure was carried out “was liable to
arouse in the applicant feelings of fear, anguish and inferiority
that were capable of humiliating and debasing him”. The same
would have been true – though perhaps to a lesser degree –
through the administration of a laxative or the long wait for
natural elimination. And, while the method used on the applicant did
involve some degree of risk to health
– which is why the method is infrequently used (judgment, § 78) – the natural elimination method carries the risk of the ingested drug bubbles bursting in the digestive tract.
That being so, and mindful of the fact that drug offences must be prosecuted and evidence secured, we do not think that Article 3 applies in the present case. Even if it did, we are of the view that the treatment to which the applicant was subjected fails to reach the threshold set by that Article. On the latter point we are, therefore, in agreement with Judges Ress, Pellonpää, Baka and Šikuta.
This conclusion does not, however, dispense us from examining the matter under Article 8 of the Convention and, more specifically, whether the conduct of the German authorities was justified under paragraph 2 of that Article.
To begin with, there is little doubt that the German authorities’ conduct was “in accordance with the law” within the meaning of Article 8(2), based as it was on Section 81a of the German Code of Criminal Procedure (see judgment, § 33), as interpreted by many German domestic courts and writers. Since Section 81a authorises judges and public prosecutors, when seeking to secure evidence, to order bodily intrusions effected by a doctor even without the consent of the accused, provided that there is no risk of damage to the suspect’s health, it may also be concluded that the measures complained of, including the use of emetics, were sufficiently foreseeable. Consequently, it may be assumed that the interference complained of was “in accordance with the law” as required by Article 8(2) of the Convention.
objectives of the interference – the arrest and prosecution of
suspected drug dealers, and the securing of evidence
– show that the measures complained of were taken in the interest of public safety, the prevention of drug offences and the protection of the health and rights of others, in accordance with Article 8(2) of the Convention.
The last and most important question to be answered is whether the interference with the applicant’s private life was “necessary in a democratic society”, as prescribed by Article 8(2). In other words, did that interference respond to a pressing social need and did the national authorities strike a proper balance between the public interest as set out above, the applicant’s interest in preserving his physical and mental integrity, and the possible existence of less intrusive but equally effective means for obtaining the evidence required?
Regarding the interests of the applicant, it may be assumed that the latter experienced considerable anxiety (see above, § 5) and that the procedure used entailed health risks since the doctor in charge was not able to conduct a full anamnesis (see above, § 3). The intervention itself required the use of force and the administration of two drugs; and its aim was to induce vomiting, which cannot be perceived as anything but distressing.
The issue which arises now is whether, in order to strike a proper balance between the interests of society and those of the applicant, a less intrusive but equally effective alternative method was available. Waiting for the natural elimination of the drugs was an option but carried the risk, for the applicant, of the drug bubbles bursting inside his digestive tract; it would also have necessitated further detention and surveillance, especially of the elimination process. One may disagree on whether the first or the second option presented a greater health risk, although the practice of a large majority of the Contracting States suggests that the former does.
The defendant State argued that, by choosing the first option, the German authorities were in fact fulfilling their positive obligation, under Article 8, to protect the applicant’s life and health. But in the present case, the health risk was created by the applicant himself, by swallowing the drug bubbles concealed in his mouth; the positive obligation of the State did not extend to the forcible removal of that risk against the will of the applicant. In this connexion, attention may be drawn to the procedure currently used in the Land of Bremen (judgment, § 47), which calls for information to be given by a doctor to the suspect about the risks to his health if the drug remains in his body. It is then up to the suspect to decide whether to take emetics or a laxative if a medical examination shows that neither method entails a risk. Otherwise he will be detained in a special cell until the drug bubbles are eliminated naturally.
It is this solution which, in the circumstances of the present case, would likely have struck a proper balance between the public interest in securing evidence for the prosecution of drug offences and the applicant’s interest in the protection of his physical and mental integrity. This is why the interference with the applicant’s private life was unnecessary in a democratic society. This is also why there has, in our view, been a breach of Article 8 of the Convention.
Regarding the applicant’s complaints under Article 6 of the Convention, we agree with the dissenting opinion of Judges Ress, Pellonpää, Baka and Šikuta but should like to add that, in principle, the Court should not find dual or multiple violations in cases where single material acts are involved.
JOINT DISSENTING OPINION OF JUDGES RESS, PELLONPÄÄ, BAKA AND SIKUTA
We disagree with the opinion of the majority on all points in this case and wish to explain our reasons for so doing.
First, unlike the majority, we do not think that Article 3 has been violated. While we agree with the way in which the general principles concerning Article 3 have been set out in the judgment (§§ 67-74), we disagree with the judgment as to how these principles should be applied to the present case.
The judgment discusses the various elements regarded as relevant, starting in § 77 with the question whether the intervention was necessary in order to obtain evidence. Also the majority accepts that drug trafficking is a serious offence, but adds that in this case “it was clear” that the “applicant had been storing drugs in his mouth and could not, therefore, have been offering drugs for sale on a large scale” (§77). The relative lack of seriousness of the offence is, according to the judgment, “reflected in the sentence (a six months suspended prison sentence with probation), which is at the lower end of the range of possible sentences” (ibid.).
Leaving aside the question whether the seriousness of the offence can have any bearing on the issue whether the interference constitutes inhuman or degrading treatment, we find that the way in which the majority appears to minimize the gravity of the offence is not entirely justified. The judgment of the Wuppertal Regional Court of 17 May 1995, which is in the file, finds it established that before the interference the applicant had already handed over one bubble from his mouth to a buyer at 11.35 a.m. and disappeared for a time before returning at 12.25 p.m., when he again handed over a bubble to a buyer. Thus the situation observed by the police, who could not know how many bubbles the applicant had in his mouth, was one of the repeated sale of drugs.
In these circumstances, it must be accepted that the police officers had reason to believe that the activities the applicant was involved in were of a certain gravity. We accept that it was decisive for the investigations into the applicant’s repeated trade in drugs for the authorities to be able to determine the exact amount and quality of the substances that were being offered for sale. The fact that following the administration of the emetics only one cocaine bubble was found cannot be decisive in this context, no more than the fact that in the end the applicant received only a rather lenient prison
sentence after the Regional Court took into account a number of mitigating circumstances.10
Important in the majority’s reasoning is also their conclusion that there were less intrusive means of obtaining the evidence. The majority holds that the “authorities could simply have waited for the drugs to pass out of the system naturally” (§ 77), and bluntly rejects the Government’s argument “that waiting for the drugs to pass out of the body naturally would have been just as humiliating” (§ 79).
It is true that this alternative is not associated with an interference with the suspect’s physical integrity in the same way as the use of emetics. However, there is no reason to question the Governments’ explanations (given at the hearing and set out also in the memorial of 4 July 2005, at §§ 52-54) that in a case like the present one an effective use of the alternative would necessarily involve a round-the-clock surveillance of the detainee and especially of his use of the toilet. In other words, under the alternative method the affected person would be deprived, perhaps for several days, not only of his liberty but also of privacy when using the toilet. Privacy when using the toilet has in other cases been regarded as a part of the minimum rights to which detainees should be entitled, so much so that its deprivation has been regarded as an important element justifying the conclusion that conditions of detention amount to degrading treatment in violation of Article 3 (Peers v. Greece, judgment cited in § 68 above, §§ 73 75; Kalashnikov v. Russia, 47095/99, § 99, ECHR-VI).
While the intrusion into privacy under the alternative of waiting for the drugs to pass may be less far-reaching than with the forcible administration of emetics, the advantages of the alternative method from the point of view of the values protected by the Convention are not so obvious as to dictate the exclusion of emetics.
The judgment goes on to examine the health risks attendant on the forcible medical intervention. The majority correctly notes that this question is a matter of dispute not only between the parties but also among medical experts (§ 78). However, it rejects the Government’s arguments concerning the health risks, inter alia, by noting that the forcible administration of emetics has to date “resulted” in the deaths of two people in the respondent State (§ 78). We for our part do not see sufficient reason not to believe the Government’s contention that in one of the two cases referred to the person suffered from an undetected heart condition and “would have been equally at risk if he had resisted a different kind of enforcement measure” (§ 62). In the other case the proceedings appear to be still pending (see § 46), and thus nothing definitive can be said.
Even so, we do accept that the use of emetics carries health risks, as do many law-enforcement measures. However, in so far as the implicit acceptance by the majority of the alternative method of waiting for the drugs to pass out of the body is to be understood as suggesting that this method clearly entails less risk, we again question whether such a conclusion is in fact borne out by the material presented to the Court. The fact – mentioned in the Government’s memorial of 4 July 2005, the accuracy of which we see no reason to question – that in Hamburg alone there have been two cases not involving the use of emetics “of small dealers dying from massive poisoning from heroin or cocaine that they had swallowed in small plastic bags to conceal the drugs from the police” (§ 82 of the memorial) indicates that there are health risks involved also in the alternative of letting the drugs pass out of the body.
Although with the benefit of hindsight one may argue that the use of emetics in this case – involving only one bubble containing 0.2182 grams of cocaine – entailed more risks than the alternative method would have, as a general matter we cannot find it established that the use of emetics is more dangerous than that alternative. Even assuming it is, the difference is not so great as to make it obligatory to exclude emetics. However that may be, we have no reason to believe that the doctor judging the situation could not reasonably conclude that the use of emetics was the appropriate way to proceed in the circumstances. We would add that the measure applied does not seem to have caused any long-lasting damage to the applicant’s health.
As regards the manner in which the emetics were administered, we note that the order for their administration was made by a public prosecutor and executed by a doctor in a hospital setting, away from the gaze of the public. Even though the forcible administration of emetics through a nasogastric tube undoubtedly caused some degree of distress and discomfort, it was of relatively short duration. Moreover the nasogastric tube is widely used in daily clinical routine, and to this extent there was nothing unusual in the method used. As to the fact that the applicant had to be immobilised by four police officers so as to allow the emetics to be administered, we do not consider the force used to have been excessive in the circumstances, given the risk that any vigorous movement on the part of the applicant could have resulted in the nasogastric tube causing injury.
All in all, we accept that the treatment to which the applicant was subjected was harsh. However, anyone engaging in drug-trafficking must take into account the possibility of being subjected to law-enforcement measures which are far from pleasant. The measures applied in this case in our view do not reach the threshold of inhuman or degrading treatment within the meaning of Article 3.
As we have voted against finding a violation of Article 3, we have held that a separate issue arises under Article 8 of the Convention.11 Therefore it is necessary for us to explain why in our view this provision has not been violated either.
We accept without hesitation that the forcible administration of emetics to the applicant constituted an interference with his right to respect for his private life in terms of his physical integrity, and that therefore Article 8 is applicable.
As to the justification for the measure under paragraph 2 of Article 8, we note that it appears to be a point of contention among German criminal courts and legal writers as to whether section 81a of the Code of Criminal Procedure provides a statutory basis for the administration of emetics by force (§§ 33-40). However, although the Federal Constitutional Court did not decide this issue in the applicant’s case, both the Wuppertal District Court and the Wuppertal Regional Court considered that the section authorised the forcible administration of emetics. Many criminal courts and legal writers appear to agree with this view. Having regard to this and the wording of section 81a the national courts’ interpretation in our view does not disclose any arbitrariness, and therefore we are satisfied that there was a sufficient legal basis for the impugned measure. We also consider that the provision satisfies the foreseeability test and that therefore the interference with the applicant’s private life was in accordance with the law, within the meaning of Article 8 § 2 of the Convention.
Moreover, we do not have any hesitation in concluding that the interference in question pursued aims which are consistent with paragraph 2 of Article 8, in particular the prevention of drug-related crime and the protection of the health of others, notably potential drug consumers.
What remains is the question whether the interference could be regarded as “necessary in a democratic society” as is also required by paragraph 2 of Article 8. We accept that this question is rather more difficult than some of the other questions we have just touched upon. Even so, we conclude that the requirement of necessity is also fulfilled.
We first refer to what we said above when discussing Article 3. We especially repeat that the alternative method of waiting for the drugs to pass out of the body naturally would not have been decisively better from the standpoint of the values protected by the Convention. As it can hardly be contended that drug dealers in the applicant’s position should be allowed to go unpunished, the choice between the two methods, both of which entail certain risks, largely falls within the Contracting State’s margin of appreciation, provided that the principle of proportionality is respected. In view of the Government’s explanation that the use of emetics is allowed only in those five Länder where the problem caused by drug offences is most acute we accept that the practice of using emetics does not go beyond what can be regarded as necessary. Absolutely denying the Contracting State the possibility of resorting to this measure even where the drug problem has reached the alarming proportions it has in some parts of Europe in our view fails to strike a proper balance between the State’s interest in fighting drug offending and the other interests involved. As the force used by the police in the applicant’s case did not go beyond what can be regarded as necessary in the circumstances, we conclude that there has been no violation of Article 8.
We have also voted against finding a violation of Article 6. As in our view there has been no violation of either Article 3 or Article 8, the possibility of finding a violation on the grounds set out in the judgment does not really arise for us. Therefore, we will confine ourselves to a few brief remarks.
First, we would like to stress our agreement with the principle, enunciated notably in Article 15 of the UN Convention against Torture and Other Cruel, Inhuman ore Degrading Treatment or Punishment, that incriminating evidence obtained as a result of torture should never be admitted as evidence against the victim (§ 105). On the other hand, any extension of this principle to cover other violations of the Convention – and this judgment is a step in that direction – calls for caution. The case-law according to which the admissibility of evidence is primarily a matter for regulation under domestic law (§ 94) is an important expression of the principle of subsidiarity, exceptions to which should be construed narrowly. However, as the majority has expressly left open the general question whether evidence obtained by an act qualified as inhuman and degrading treatment (but not torture) automatically renders a trial unfair (§ 107), we do not consider it necessary to pursue the matter further.
As regards the application of the privilege against self-incrimination in this case, we agree that “the evidence at issue in the present case, namely, drugs hidden in the applicant’s body which were obtained by the forcible administration of emetics, could be considered to fall into the category of material having an existence independent of the will of the suspect, the use of which is generally not prohibited in criminal proceedings” (§ 113). On the other hand, it is more doubtful whether an exception to this general rule on the admissibility of evidence was justified for the reasons given in the judgment. In particular, the majority’s repeated emphasis on the applicant being only a small-scale drug dealer who was given a relatively lenient sentence (§§ 107 and 119) is unconvincing (see also our comments on Article 3 above). However, in our view it is not necessary to go further than this, as our conclusion that there has been no violation of Article 6 is the more or less inevitable consequence of our conclusions drawn with respect to Articles 3 and 8.
DISSENTING OPINION OF JUDGE HAJIYEV
I voted with the majority of the Grand Chamber in favour of finding a violation of Article 6 of the Convention in the present case on the ground that the applicant’s right not to incriminate himself had been breached. However, unlike the majority, I voted in favour of a finding that there has been no violation of Article 3 of the Convention. Regarding the applicant’s complaint under Article 3 I fully subscribe to the dissenting opinion expressed by Judges Wildhaber and Caflisch.
1 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, [annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)], entered into force June 26, 1987. The U.N. Committee against torture has urged Germany to adopt article 1 of U.N.C.A.T. as a definition of the offence of torture in its own substantive criminal law. Germany was urged, too, to apply strictly the rule excluding all evidence derived from torture from the cognizance of the deciding judges. The failure to follow these early warnings of the U.N. monitoring body contributed to the emergence of the practice that is the subject matter of this case. See, Concluding observations of the Committee against Torture: Germany. 11/05/98., A/53/44, paras.179-195. (Concluding Observations/Comments), paras. 185 and 193.
In the context of the case at hand it may also be indicative that the International Covenant on Civil and Political Rights, 1966, in its Article 7 treats torture on a par with medical or scientific experimentation: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”
2 “To require a threshold showing of an ‘objective’ injury, the sort of thing that might reveal itself on an x-ray, or in missing teeth, or in a bruised and battered physical appearance, would confer immunity from claims of deliberate indifference on sadistic guards, since it is possible to inflict substantial and prolonged pain without leaving any ‘objective’ traces on the body of the victim” (Judge Posner in Cooper v. Casey, 97 F.3d 914, 917 (7th Cir. 1996) (citations omitted)). Furthermore, substantial and prolonged pain can be psychological as well as physical. "[M]ental torture is not an oxymoron, and has been held or assumed in a number of prisoner cases . . . to be actionable as cruel and unusual punishment" (Judge Posner in Thomas v. Farley, 31 F.3d 557, 559 (7th Cir. 1994)). In a case involving cross-gender body searches it has been held that "severe psychological injury and emotional pain and suffering" counted as "infliction of pain" under the Eighth Amendment (Judge O'Scannlain in Jordan v. Gardner, 986 F.2d 1521, 1525, 1528 (9th Cir. 1992)). "Many things – beating with a rubber truncheon, water torture, electric shock, incessant noise, reruns of 'Space 1999' – may cause agony as they occur yet leave no enduring injury. The state is not free to inflict such pains without cause just so long as it is careful to leave no marks" (Judge Easterbrook in Williams v. Boles, 841 F.2d 181, 183 (7th Cir. 1988)). At http://www.yale.edu/lawweb/avalon/diana/harris/110998-2.ht.
3 U.N. C.A.T, Article 16 : “1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.” [Emphasis added.]
4 At http://news.bbc.co.uk/2/hi/americas/4569626.stm.
5 ROCHIN v. CALIFORNIA, 342 U.S. 165 (1952) at http://caselaw.lp.findlaw.com/cgi bin/getcase.pl?navby=case&court=us&vol=342&invol=165
6 Fifth Amendment to the United States Constitution: “No person shall be […] compelled in any criminal case to be a witness against himself.”
7 U.N. C.A.T., Article 15: Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. [Emphasis added.]
8 Wigmore on Evidence (McNaughton rev. 1961) Vol. 8, p. 318 [Emphasis added.]
9 See, Rochin v. California, 342 U.S. 165 at 172 (1952): “[W]e are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents - this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.”
10 Thus, although there were indications that larger amounts of drugs were involved, the Court applied the principle of favor defensionis and assumed (“Die Strafkammer geht deshalb zugunsten des Angeklagten davon aus…”) that both at 11.35 and 12.25 the applicant only handed over to the buyer a bubble containing on each occasion 0.15 grams of cocaine. The Court also took into account the fact that the applicant was prevented from selling the bubble of 0.2182 grams. In addition, the sentence reflected the fact that the applicant had no criminal record in Germany and that during the one year period which had elapsed between the applicant’s release from pre-trial detention and the conviction now under discussion he had not been connected with any criminal activities. In the light of the judgment, one may safely assume that the kind of behaviour which the police observed the applicant engage in could, in the case of another person, easily have led to a more severe punishment.
11 Judge Sikuta considered that the matter should be dealt with exclusively under Article 3. Assuming that a separate issue arises under Article 8, he agrees with the reasoning of this dissenting opinion.