JALLOH v. GERMANY JUDGMENT
31
criminal offences (see, inter alia, Tirado Ortiz and Lozano Martin, cited
above).
116. Consequently, the principle against self-incrimination is applicable
to the present proceedings.
117. In order to determine whether the applicant’s right not to
incriminate himself has been violated, the Court will have regard, in turn, to
the following factors: the nature and degree of compulsion used to obtain
the evidence; the weight of the public interest in the investigation and
punishment of the offence in issue; the existence of any relevant safeguards
in the procedure; and the use to which any material so obtained is put.
118. As regards the nature and degree of compulsion used to obtain the
evidence in the present case, the Court reiterates that forcing the applicant to
regurgitate the drugs significantly interfered with his physical and mental
integrity. The applicant had to be immobilised by four policemen, a tube
was fed through his nose into his stomach and chemical substances were
administered to him in order to force him to surrender up the evidence
sought by means of a pathological reaction of his body. This treatment was
found to be inhuman and degrading and therefore to violate Article 3.
119. As regards the weight of the public interest in using the evidence to
secure the applicant’s conviction, the Court observes that, as noted above,
the impugned measure targeted a street dealer who was offering drugs for
sale on a comparatively small scale and who was eventually given a sixmonth suspended prison sentence and probation. In the circumstances of the
instant case, the public interest in securing the applicant’s conviction could
not justify recourse to such a grave interference with his physical and
mental integrity.
120. Turning to the existence of relevant safeguards in the procedure,
the Court observes that Article 81a of the Code of Criminal Procedure
prescribed that bodily intrusions had to be carried out lege artis by a doctor
in a hospital and only if there was no risk of damage to the defendant’s
health. Although it can be said that domestic law did in general provide for
safeguards against arbitrary or improper use of the measure, the applicant,
relying on his right to remain silent, refused to submit to a prior medical
examination. He could only communicate in broken English, which meant
that he was subjected to the procedure without a full examination of his
physical aptitude to withstand it.
121. As to the use to which the evidence obtained was put, the Court
reiterates that the drugs obtained following the administration of the emetics
were the decisive evidence in his conviction for drug trafficking. It is true
that the applicant was given and took the opportunity to oppose the use at
his trial of this evidence. However, and as noted above, any possible
discretion the national courts may have had to exclude the evidence could
not come into play, as they considered the impugned treatment to be
authorised by national law.
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