Resolution CM/ ResDH (2010)53 [1]

Execution of the judgment of the European Court of Human Rights

Jalloh against Germany

(Application No. 54810/00, judgment of 11 July 2006, Grand Chamber)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern the forcible administration of emetics against the applicant, amounting to inhuman and degrading treatment and the use of the evidence obtained during the trial, violating the right not to incriminate oneself (violations of Articles 3 and 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to clos e the examination of this case.

Appendix to Resolution CM/ ResDH (2010)53

Information about the measures to comply with the judgment in the case of

Jalloh against Germany

Introductory case summary

The case concerns inhuman and degrading treatment suffered by the applicant due to the forcible administration of emetics to obtain evidence.

In 1993, police saw the applicant take two tiny plastic bags out of his mouth and give them to someone for money. They arrested the applicant on suspicion of drug-dealing whereupon he swallowed another bag that he had in his mouth. No drugs being found on the applicant ’ s person, the prosecutor ordered the administration of an emetic under Section 81a of the Code of Criminal Procedure. This provision was interpreted by many German courts and writers as a sufficient legal basis to secure evidence through interference with the suspect ’ s physical integrity without his or her consent. The applicant was taken to a hospital where he refused to take medication to induce vomiting. He was then restrained by four policemen while a doctor forcibly administered emetics by nasogastric tube and by injection. The applicant then regurgitated a small bag containing 0.2182g of cocaine. In the subsequent criminal proceedings, he was convicted and sentenced to a six months ’ suspended prison sentence with probation.

The European Court was not convinced that the forcible administration of an emetic was indispensable in this case for the purpose of securing evidence. It noted that the authorities fully realised that the applicant was selling drugs only in small quantities, as testified by the sentence imposed. The recourse to an emetic was thus not indispensable, as the evidence might have been obtained by less invasive means (such as elimination by the normal process of nature). C oncerning the health risks, the Court was not convinced that forcible administration of an emetic, a method which had already caused two deaths in the respondent state, carried only negligible health risks. As to the way in which the emetic was administered, the Court found that there was use of force verging on brutality, and moreover such as to arouse feelings of fear, anxiety and inferiority in the applicant, apt to humiliate and demean him (§77-79 and 82) (violation of Article 3).

Furthermore, the case concerns a violation of the applicant ’ s right to a fair trial and his right not to incriminate himself due to the decisive reliance of the courts on evidence obtained in violation of the Convention. The European Court also noted that, in the circumstances of this case, the public interest in securing the applicant ’ s conviction could not justify recourse to such a serious interference with his physical and mental integrity (§§117-119) (violation of Article 6§1).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

10 000 EUR

5 868,88 EUR

15 868,88 EUR

Paid on 5/10/2006

b) Individual measures

The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. On 10/12/2007 the Mönchengladbach District Court decided, at the request of the applicant ’ s counsel, to reopen the criminal proceedings. The hearing set for 18/04/2008 had to be cancelled as the applicant had left Germany before the summons was sent. In August 2009, the counsel informed the District Court that the applicant was still abroad and gave no further information on his presumed return to Germany . However, a new hearing is possible only if the applicant is present. In these circumstances, no individual measure was deemed necessary.

II. General measures

As regards the violation of Article 3, t he practice of administering emetics to obtain evidence was expressly abandoned in the Länder which had used it ( Berlin , Bremen , Hamburg , Hessen and North Rhine ‑ Westphalia ).

Concerning the violation of Article 6§1, according to the German authorities, it is assumed that in view of the direct effect of the Convention in Germany that the requirements of this provision of the Convention and the European Court ’ s case-law will be taken into account in the future, after the publication and dissemination of the Court ’ s judgment, thus preventing similar violations. In this context it should be noted that all judgments of the European Court against Germany are publicly available via the website of the Federal Ministry of Justice ( http://www. b mj.bund.de ; Themen : Menschenrechte , EGMR). The judgment was also sent out to the courts concerned, local administrations (all state administrations of justice, all Ministries of Justice of the Länder - Landesjustizverwaltungen ) and federal authorities (Federal Ministries of Interior and of Health).

III. Conclusions of the respondent state

The government considers that no other individual measure than those taken is required , that the general measures will prevent similar violations, and that Germany has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 3 June 2010 at the 1086th meeting of the Ministers’ Deputies