THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54810/00 by Abu Bakah JALLOH against Germany

The European Court of Human Rights (Third Section), sitting on 26 October 2004 as a Chamber composed of:

Mr I. Cabral Barreto , President , Mr G. Ress , Mr L. Caflisch , Mr R. Türmen , Mr B. Zupančič , Mrs M. Tsatsa-Nikolovska , Mrs A. Gyulumyan, judges ,

and   Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 30 January 2000 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Abu Bakah Jalloh, is a national of Sierra Leone who was born in 1965 and lives in Cologne ( Germany ). He i s represented before the Court by Mr U. Busch, a lawyer practising in Ratingen . The respondent Gove rnment are represented by Mr K. Stoltenberg , Ministerialdirigent .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Investigation proceedings

On 29 October 1993 four plain-clothes policemen observed the applicant selling to two persons two small bags which they considered to contain drugs, and which t he applicant had taken out of his mouth.

When being arrested by the police, the applicant swallowed a small bag he still had in his mouth. As the police officers searching him did not find any drugs on him, the competent public p ros ecutor ordered that the applicant be administered emetics ( Brechmittel ) to provoke the vomiting of the bag ( Exkorporation ) with the assistance of a doctor.

The applicant was thereupon brought to a hospital in Wuppertal-Elberfeld. As he refused to take the medicaments necessary for the measure, the police officers had to fix him while a doctor forcibly administered to him a salt solution and Ipecacuanha syrup by way of a tube introduced into his nose. The doctor also injected him apomorphine. Thereupon, the applicant vomited a small bag of 0.2182 g of cocaine.

On 30 October 1993, following a warrant of arrest issued by the Wuppertal District Court, the applicant was placed in detention on remand until 23 March 1994.

2. Court proceedings

On 20 December 1993 the applicant ' s lawyer submitted to the Wuppertal District court that the relevant pieces of evidence had been obtained by illegal means and could therefore not be used in the criminal proceedings. He pointed out in particular that by provoking by forc e the vomiting of the small bag of cocaine, the police officers and the doctor who had participated in the operation were guilty of having caused bodily harm in the exercise of official duties ( Körperverletzung im Amt ). The administration of toxic substances was indeed prohibited by Section 136a of the Code of Criminal Procedure ( Strafprozeßordnung – see Relevant domestic law and practice below). In the present case, there has even been a manipulation, as bodily reactions had been provoked by suppressing the control reactions of the brain and the body. In any event, the measure was disproportionate pursua nt to Section 81a of the Code of Criminal Procedure (see Relevant domestic law and practice below), as it would have been possible to obtain the same result by waiting until the bag in question was excreted in the natural way. The only other method authoris ed by Section 81a of the Code of Criminal Procedure would have been an irrigation of the stomach.

On 23 March 1994 the Wuppertal District Court convicted the applicant for drug trafficking and sentenced him to one year ' s imprisonment suspended on probation. It found in particular that the opinion of the defence, according to which the measure in question was disproportionate under Section 81a of the Code of Criminal Procedure in order to obtain a small bag of only 0.2 g of cocaine and according to which the results achiev ed could not be used, was not correct.

The applicant, repeating his arguments, appealed against the judgment.

In its judgment rendered on 17 May 1995 the Wuppertal Regional Court confirmed the judgment of the District Court , reducing the sentence to six months ' imprisonment suspended on probation. It found in particular that the pieces of evidence obtained following the public prosecutor ' s order to provoke the vomiting of the bag of cocaine could be used in the proceedings. Pursuant to Section 81a of the Code of Criminal Procedure, the administration of the products in question even against the will of the applicant was legal. The intervention was necessary to conserve the evidence of drug trafficking, being the object of the present proceedings . It had been effected under medical supervision and by observing the rules of the art. There had neither been a danger for the life of the accused, nor a violation of the principle of proportionality.

The applicant appealed against this judgment on points of law, submitting that the method used against the applicant violated Articles 1 and 2 of the Basic Law ( Grundgesetz – see Relevant domestic law and practice below), and disregarded in particular human dignity.

On 19 September 1995 the Düsseldorf Court of Appeal dismissed the applicant ' s appeal, as the judgment in question did not disclose any error of law to the detriment of the accused.

The applicant thereupon lodged a complaint with the Federal Constitutional Court , reiterating that the measure in question was disproportionate under Article 81a of the Code of Criminal Procedure.

On 15 September 1999 the Federal Constitutional Court refused to entertain the applicant ' s constitutional complaint. It found that the applicant ' s complaint, having regard to the subsidiary nature of a constitutional complaint, was inadmissible.

According to the Constitutional Court, the administration of emetics, including apomorphine, being a derivative of morphine, raised serious constitutional issues, in particular medical questions, with respect to the right to physical integrity (Article 2 para. 2 of the Basic Law – see Relevant domestic law and practice below ) and to the principle of proportionality. These issu es have not yet been the subject-matter of proceedings before the criminal courts.

The Constitutional Court found that the applicant had not availed himself of all remedies at his disposal ( alle prozessualen Möglichkeiten ) against the measure bas ed on Section 81a of the Code of Criminal Procedure before the criminal courts in order to prevent a misconception of the importance and scope of the fundamental right of Article 2 para. 2 , first sentence, of the Basic Law ( um eine Verkennung von Bedeutung und Tragweite des Grundrechts des Art. 2 Abs. 2 Satz 1 GG zu verhindern ) .

T he Constitutional Court also mentioned that the measure in question did not raise any constitutional objections of principle with respect to human dignity protected by Article 1 para. 1 of the Basic Law and with respect to the principle against self-incrimination guaranteed in Article 2 para. 1 taken in conjunction with Article 1 para. 1 of the Basic Law.

B. Rele vant domestic law and practice

1. The Basic Law

Article 1 § 1 of the Basic Law reads as follows:

“ Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. ”

Article 2, in so far as relevant, provides:

“(1) Every person shall have the right to free development of his personality insofar 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. ( ... )”

2. The Federal Constitutional Court Act

Section 90 § 2 , first sentence, of the Federal Constitutional Court Act reads as follows:

“ If a legal action lies against the violation, the constitutional complaint may not be lodged until all remedies have been exhausted. ”

According to the Federal Constitutional Court ' s constant case-law (see, inter alia , BVerfGE 9, 1, 7 ; BVerfGE 81, 22, 27; BVerfGE 81, 97, 102 ) , the principle of subsidiarity , which emerges from Section 90 § 1, first sentence, obliges the applicant , in addition to his duty to exhaust domestic remedies, to avail himself of all possible means to redress a breach of a fundamental right. This entails in particular that he has to raise his complaint of a human rights violation in all proceedings at his disposal before the competent lower courts in compliance with the respective formal requirements .

3 . The Code of Criminal Procedure

Section 81a § 1 of the Code of Criminal Procedure reads as follows:

“A physical examination of the accused may be ordered for the establishment of facts which are of importance for the proceedings. For this purpose, the taking of blood samples and other bodily intrusions which are effected by a physician in accordance with the rules of medical science for the purpose of examination shall be admissible without the consent of the accused, provided that no detriment to his health is to be expected.”

Section 98 § 2 of the Code of Criminal Procedure , on orders of seizure, provides that a person, whose property has been seized, may at any time apply to the competent District Court for a judicial decision on the lawfulness of the seizure. According to the established case-law of the Federal Court of Justice ( see for numerous quotations from that case-law, for example, Kleinknecht / Meyer-Goßner , Strafprozeßordnung, 45 th edition, 2001, Section 98, paragraph 23 ), Section 98 § 2, second sentence, of the said Code , applied by analogy, also entitles a person concerned by a different measure, which has already been executed by the public prosecutor or the police officers assisting it and interferes with his rights , to challenge the lawfulness of that measure in the District Court.

Section 136a of the Code of Criminal Procedure , on prohibited methods of examination ( verbotene Vernehmungsmethoden ), provides:

“ (1) The freedom of the accused to make up his mind and to manifest his will shall not be impaired by ill-treatment, induced fatigue, physical interference, administration of drugs, torment, deception or hypnosis. Coercion may be used only as far as this is permitted by the law on criminal procedure. Threatening the accused with measures not permitted under its provisions or holding out the prospect of an advantage not envisaged by statute shall be prohibited.

(2) Measures which impair the memory of the accused or his ability to understand and accept a given situation ( Einsichtsfähigkeit ) shall not be permitted.

(3) The prohibition under subsections (1) and (2) shall apply irrespective of the consent of the accused . Statements which were obtained in breach of this prohibition shall not be used, even if the accused agrees to their use.”

COMPLAINTS

The applicant complained that the administration by force of emetics ordered by the public prosecutor in order to obtain evidence constituted an inhuman and degrading treatment prohibited by Article 3 of the Convention . He also considered that the use of this evidence, which, according to him, had been obtained in an illegal way, in the criminal proceedings leading to his conviction, disregarded his right to a fair trial guaranteed by Article 6 of the Convention. He claimed in particular that his right not to incriminate himself had been violated. Finally, he complained that the refusal of the Federal Constitutional Court to entertain his complaint violated his right to an effective remedy guaranteed by Article s 6 and 13 of the Convention.

THE LAW

The applicant complained that the administration of emetics by force amounted to a breach of Article 3 of the Convention, the relevant part of which provides:

“No one shall be subjected ... to inhuman or degrading treatment ... .”

He also c laim ed that due to the use of the evidence obtained by the administration of emetics in the criminal proceedings , he did not have a fair trial within the meaning of Article 6 of the Convention, which, in so far as relevant, reads as follows:

“ 1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

He submitted that the refusal of the Federal Constitutional Court to entertain his complaint amounted to a breach of Article s 6 and 13 of the Convention, the relevant part s of which read :

Article 6:

“ 1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 13:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Exhaustion of domestic remedies

The Government contended that the applicant did not exhaust domestic remedies as required by Article 35 § 1 of the Convention. They pointed out that the Federal Constitutional Court had refused to entertain the applicant ' s constitutional complaint, as the latter was inadmissible for non-compliance with the principle of subsidiarity. They submitted that the applicant did not meet this requirement as , according to the court records, he had not objected to the use of the evidence allegedly obtained by illegal means in the trial hearings themselves before the Wuppertal District and Regional Court . Consequently, pursuant to the constant case-law of the Federal Court of Justice, he had been estopped from complaining about the use of this evidence in his appeal on points of law to the Düsseldorf Court of Appeal .

The applicant contested this view . He claimed that he had unsuccessfully complained before all competent criminal courts that the way in which the prosecuting authorities had obtained the evidence in question was unconstitutional . He took the view that, in any event, the criminal courts had been barred from using evidence obtained by illegal means, irrespective of his objection.

The Court recalls that , whereas Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of effective remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Cardot v. France , judgment of 19 March 1991, Series A no. 200, p. 18, § 34; Janssen v. Germany , no. 23959/94, Commission decision of 9 September 1998; Elçi and O thers v. Turke y, nos. 23145/93 and 25091/94, § 604, 13 November 2003).

C onsequently, domestic remedies have not been exhausted when an appeal is not admitted because of a procedural mistake by the applicant. However, non-exhaustion of domestic remedies cannot be held against him if, in spite of his failure to observe the forms prescribed by law, the competent authority has nevertheless examined the appeal (see , inter alia , Mitropolia Basarabiei Si Exarhatul Plaiurilor and Others v. Moldova (dec.), no. 45701/99, 7 June 2001 ; Skalka v. Poland (dec.), no. 43425/98, 3 October 2002).

The Court notes at the outset that the Federal Constitutional Court, in dismissing the applicant ' s complaint for non-compliance wit h the principle of subsidiarity – which is a condition of admissibility for a constitutional complaint similar to the preconditions under Article 35 § 1 of the Convention for a horizontal exhaustion of domestic remedies – has not specified which remedies the applicant should have availed himself of in order to meet this requirement. Having regard to the divergence of opinions of the Government and the applicant with respect to this issue, the Court observes that it is not in a position to assess the reasons for the non-compliance with formal requirements found by the Constitutional Court.

However, the Court, assuming a failure of the applicant to observe the forms prescribed by law, notes that the Constitutional Court, in its decision, found that the measure contested by the applicant did not raise any constitutional objections of principle with respect to human dignity and the principle against self-incrimination . It finds that the said court thereby examined, at least partly, the substance of the applicant ' s complaint. The same is true for the lower criminal courts. Both the Wuppertal District Court and the Regional Court examined and dismissed the applicant ' s objection against the use of the contested evidence in the proceedings. In dismissing the applicant ' s appeal on points of law as ill-founded, also the Düsseldorf Court of Appeal must be considered to have dealt with the substance of the applicant ' s complaint.

Therefore, the applicant ' s complaints cannot be rejected under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies.

B. Merits

I. As to the administration of emetics by force

The Government argued that the administration of emetics by force did not violate Article 3 of the Convention. As the said measure had been executed in the process of criminal investigations, had been carried out by a doctor in hospital and had been necessary to obtain evidence of a drug offence, it could not be considered as an inhuman or degrading treatment.

The Government conceded that the administration of emetics constituted an interference with the applicant ' s right to respect for private life under Article 8 § 1 of the Convention. However, they took the view that the measure was justified under Article 8 § 2. It had been ordered by the competent public prosecutor in accordance with Section 81a § 1, second sentence, of the Code of Criminal Procedure, and, concerning a drug offence, had been in the interests of public safety, the prevention of crime and the protection of the health and rights of others. The measure had also been nec essary in a democratic society. In particular, awaiting the natural excretion of the drugs or the administration of a laxative would not have been equally effective measures, as they would have necessitated the applicant ' s detention on remand and his constant surveillance. As the applicant was suspected of trafficking in a not insignificant amount of drugs , which can entail a prison sentence of up to five years, and did not prove that his health had been endangered, the measure had also been proportionate. The danger for the applicant to be poisoned by the bag of drugs in his stomach could in fact also be regarded as a medical reason to make him vomit it.

The applicant contested this view. He claimed that the administration of toxic substances, which posed a serious threat to his life and health and pursued the aim of eliminating his free will, amounted to inhuman and degrading treatment prohibited under Article 3 of the Convention.

In the applicant ' s view, the measure was als o not justified under Article 8 § 2 of the Convention. He argued in particular that it could not be based on Section 81a of the Code of Criminal Procedure, as both the administration of Ipecacuan h a syrup, which had already brought about the death of an accused, and the injection of apomorphine entailed a serious risk for the applicant ' s life and physical integrity. He quoted a judgment of the Frankfurt/Main Court of Appeal of 11 October 1996 , which found that Section 81a of the Code of Criminal Procedure did not provide a legal basis for the administration of emetics by force. In any event, there was a general agreement among jurists in Germany that Section 81a of the said Code prohibited the administration of emetics by force on dealers of merely small amounts of drugs , as himself . He also referred to a submission of the Federal Medical Association ( Bundesärztekammer ) to the Federal Constitutional Court of 28 March 1996 , in which the Association stated that the introduction of a tube by force through a person ' s nose constituted a risk for the life of the person concerned due to possible bodily injuries caused thereby and due to the danger of damaging the small bag containing the drugs .

The Court has examined the applicant ' s complaints and the submissions of the parties and finds that serious questions of fact and law arise, which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

II. As to use of the evidence obtained by the administration of emetics in the criminal proceedings

The Government took the view that the administration of emetics by force did not violate the applicant ' s right to a fair trial , entailing a right not to incriminate him self , as protected by Article 6 § 1 of the Convention . It did not warrant an active, intentional participation of the applicant, but merely the endurance of a coercive measure.

The applicant disputed this view. He pointed out that the administration of emetics by force as such, which was expressly prohibited by Section 136a of the Code of Criminal Procedure when questioning an accused, did entail an interference with the applicant ' s free will not to vomit the evidence. It therefore breached his right not to incriminate himself guaranteed by Article 6 of the Convention.

The Court has examined the applicant ' s complaints and the submissions of the parties and finds that serious questions of fact and law arise, which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

III. As to the existence of an effective remedy to complain about the administration of emetics and the use of the evidence obtained thereby in the criminal proceedings

The Government submitted that the applicant had several effective remedies within the meaning of Article 13 of the Convention at his disposal to complain about the administration of emetics by force and the use of the evidence obtained thereby in the criminal proceedings against him. On the one hand, he had been able to object to the use of this evidence in the criminal proceedings before the District Court, the Regional Court and the Court of Appeal. On the other hand, he could also have applied for a decision of the investigation judge ( Ermittlungsrichter ) at the District Court about the lawfulness of the public prosecutor ' s order to administer him emetics pursuant to Section 98 § 2, second sentence, of the Code of Criminal Procedure applied by analogy in accordance with the well-established case-law of the criminal courts . Pursuant to Section 304 of the Code of Criminal Procedure, an appeal ( Beschwerde ) lay to the Regional Court against the investigation judge ' s decision.

The applicant contested this view. He argued that his complaints about the measure in question and the use of the evidence obtained thereby in the main proceedings, as well as in the appeal against the applicant ' s detention, had been unsuccessful in all instances. In particular, the Federal Constitutional Court wrongly refused to entertain his constitutiona l complaint due to the subsidiary nature of that complaint, as he had in fact not disposed of any further remedies. Section 98 § 2 of the Code of Criminal Procedure was not applicable in his case, and therefore also did not provide him with an effective remedy as required by Article 6 and 13 of the Convention.

The Court considers that , in so far as the applicant complains about the Constitutional Court ' s refusal to entertain his constitutional complaint for non-compliance with the principle of subsidiarity, his complaint falls to be examined under A rticle 6 § 1 of the Convention, which contains an inherent right of access to a court and is, in this respect, to be considered as constituting a lex specialis in relation to Article 13 of the Convention (see, inter alia , Golder v. t he United Kingdom , judgment of 21 February 1975, Series A no. 18, p p . 16-18 , §§ 34 et seq. ; Kudla v. Poland [GC], no. 30210/96, §§ 146 et seq., ECHR 2000-XI ). It recalls that it is for the national authorities to regulate the individuals ' access to court. It is therefore for these authorities to fix the forms and time-limits to be observed in bringing court actions and to apply and interpret the relevant provisions. The Court ' s function in this respect is restricted to verify ing that the limitations applied do not reduce the access in such a way that the very essence of the right is impaired (see Millot v. Switzerland , no. 12978/87, Comm ission decision of 6 July 1989 ; Ashingdane v. t he United Kingdom , judgment of 28 May 1985 , Series A no. 93, p. 24 , § 57).

The Court notes that in the present case, the applicant did not receive a decision on the merits by the Federal Cons titutional Court , as the latter considered his complaint to be inadmissible for non-compliance with the principle of subsidiarity . As set out above, the Federal Constitutional Court has , however, not specified which remedies the applicant should have availed himself of in order to meet this requirement. As regards the possible further remedies the applicant should have used, the parties, however, agree that the Constitutional Court perceived the applicant to have made a formal mistake in the proceedings before the District and Regional Courts by not having objected to the use of the evidence allegedly obtained by illegal means in the trial hearings themselves (see The Law, A., above) . Having also regard to the limited obligation for national superior courts to give reasons for their decision ( see, amongst others, Garc í a Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999-I ) , the Court finds that the limitation posed on the applicant ' s access to court by the Constitutional Court in applying the principle of subsidiarity , under these circumstances, cannot be regarded as dispropo rtionate. Consequently, there is no appearance of a violation of Article 6 § 1 of the Convention.

In so far as the applicant also complains about the lack of an effective remedy as such to complain about the administration of emetics by force and the use of the evidence obtained thereby in trial, the Court examines his complaint also under Article 13 of the Convention, taken in conjunction with Articles 3 and 8 of the Convention. It recalls that where an individual , as in the present case, has an arguable claim to be the victim of a violation of a Convention right, he should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress . The effectiveness of a remedy within the meaning of Article 13, however, does not depend on the certainty of a favourable outcome for the applicant (see , inter alia , Silver and Others v. t he United Kingdom , judgment of 25 March 1983, Series A no. 61, p. 42, § 113 ; Kudla , cited above, § 157 ).

The Court notes in this respect that the applicant had the opportunity to challenge both the administration of emetics by force and the use of the evidence obtained thereby in the main criminal proceedings against him before the District Court, the Regional Court and the Court of Appeal. In addition to that, the Court is satisfied that he could also have challenged the lawfulness of the administration of emetics by force in separate proceedings under Section 98 § 2 of the Code of Criminal Procedure. He therefore had several judicial remedies at his disposal to complain about the measure in question. In these circumstances, there is no appearance of a violation of Article 13 of the Convention.

Consequently, this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 § 3 of the Convention .

For these reasons, the Court unanimously

Declares the application admissible insofar as the applicant complained about the administration of emetics by force and about the use of the evidence obtained thereby in the criminal proceedings , without pr ejudging the merits of the case;

Declares the remainder of the application inadmissible.

Vincent Berger Ireneu Cabral Barreto Registrar President