JOINT DISSENTING OPINION OF JU DGES RESS, PELLONPÄÄ, BAKA AND Å IKUTA

We disagree with the opinion of the majority on all points in this case and wish to explain our reasons for so doing.

Article 3

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 (see paragraphs 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 paragraph 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 thi s 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” ( see paragraph 77 of the judgment ). The relative lack of seriousness of the offence is, according to the judgment, “r eflected in the sentence (a six-month suspended sentence and 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 minimis e 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 through his system naturally” ( see paragraph 77 of the judgment ), and bluntly rejects the Government ’ s argument “that waiting for the drugs to pass through his body naturally would have been just as humiliating” ( see paragraph 79 of the judgment).

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 Government ’ s explanations (given at the hearing and also set out in paragraphs 52-54 of the memorial of 4 July 2005 ) 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 ( see Peers v. Greece , no. 28524/95, §§ 73 ‑ 75 , ECHR 2001-III, and Kalashnikov v. Russia , no. 47095/99, § 99, ECHR 2002- 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 di ctate 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 b ut also among medical experts (see paragraph 78 of the judgment ). However, it rejects the Government ’ s arguments concerning the health risks by noting , inter alia , that the forcible administration of emetics has to date “resulted” in the deaths of two people in the respondent State ( ibid. ). 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” ( see paragraph 62 of the judgment ). In the other case the proceedings appear to be still pending (see paragraph 46 of the judgment ), and thus nothin g 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” ( see paragraph 82 of the memorial) indicates that there are health risks involved also in the alternative of letting the drugs pass through 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 th at alternative. Even assuming it is, the difference is not so great as to make it obligatory to exclude emetics. Whatever the case 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. Furthermore, 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. H owever, 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 of the Convention .

Article 8

As we have voted against finding a violation of Article 3, we have held that a separate issue arise s under Article 8 of the Convention [11] . Therefore it is necessary for us to explain why in our view this provisio n 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 the refore 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 whether Article 81a of the Code of Criminal Procedure provides a statutory basis for the administration of emetics by force ( see paragraphs 33-40 of the judgment ). 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 that Article authorised the forcible administration of emetics. Many criminal courts and legal writers appear to agree with this view. Having regard to this and to the wording of Article 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 A rticle 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, no tably potential drug consumers.

The question remains 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 dif f icult than some of the other questions we have just touched upon. Even so, we conclude that the requirement of necessity is also fulfilled.

We refer, first ly, to what we said abov e when discussing Article 3. We reiterate in particular that the alternative method of waiting for the drugs to pass through the body naturally would not have been decisively better from the stand point 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.

Article 6

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 ou rselves to a few brief remarks.

First, we would like to stress our agreement with the principle, enunciated notably in Article 15 of the U nited N ations Convention against Tort ure and Other Cruel, Inhuman or Degrading Treatment or Punishment, that incriminating evidence obtained as a result of torture should never be admitted as evidence against the victim ( see paragraph 105 of the judgment ). 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 ( see paragraph 94 of the judgment ) 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 ( see paragraph 107 of the judgment ), 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 in 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” ( see paragraph 113 of the judgment ) . 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 ( see paragraphs 107 and 119 of the judgment ) 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.