DISSENTING OPINION OF JUDGE S WILDHABER AND CAFLISCH

1. 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.

2. 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.

3. 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 of English (the fact of the matter being, though, that he spoke German or English well enough 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, in cidentally, by engaging in drug trafficking, show much regard for the health of others.

4. 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 ( a six-month suspended sentence and 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.

5. Undoubtedly, as pointed out by the majority ( see paragraph 82 of the judgment), 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 – of 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 his health – which is why the method is infrequently used ( see paragraph 78 of the judgment) – the natural elimination method carries the risk of the ingested drug bubbles bursting in the digestive tract.

6. 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.

7. 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.

8. 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 Article 81a of the German Code of Criminal Procedure (see paragraph 33 of the judgment), as interpreted by many German domestic courts and writers. Since Article 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 th e law” as required by Article 8 § 2 of the Convention.

9. Furthermore, the 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.

10. 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?

11. Regarding the interests of the applicant, it may be assumed that the latter experienced considerable anxiety (see paragraph 5 above) and that the procedure used entailed health risks since the doctor in charge was not able to conduct a full anamnesis (see paragraph 3 above). 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.

12. 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 th e applicant, of the drug bubble 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.

13. The Government 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 bubble 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 connect ion, attention may be drawn to the procedure currently used in the Land of Bremen ( see paragraph 47 of the judgment), 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.

14. 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.

15. 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.