JALLOH v. GERMANY JUDGMENT – DISSENTING OPINION OF JUDGES WILDHABER AND CAFLISCH 47 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 the 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