JALLOH v. GERMANY JUDGMENT – JOINT DISSENTING OPINION
OF JUDGES RESS, PELLONPÄÄ, BAKA AND ŠIKUTA
51
sentence after the Regional Court took into account a number of mitigating
circumstances1.
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 dictate
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 but also among medical
experts (see paragraph 78 of the judgment). However, it rejects the
1. Thus, although there were indications that larger amounts of drugs were involved, the
court applied the principle of favor defensionis and assumed (“Die Strafkammer geht
deshalb zugunsten des Angeklagten davon aus …”) that both at 11.35 a.m. and 12.25 p.m.
the applicant only handed over to the buyer a bubble containing on each occasion 0.15
grams of cocaine. The court also took into account the fact that the applicant was prevented
from selling the bubble of 0.2182 grams. In addition, the sentence reflected the fact that the
applicant had no criminal record in Germany and that during the one-year period which had
elapsed between the applicant’s release from pre-trial detention and the conviction now
under discussion he had not been connected with any criminal activities. In the light of the
judgment, one may safely assume that the kind of behaviour which the police observed the
applicant engage in could, in the case of another person, easily have led to a more severe
punishment.
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