52 JALLOH v. GERMANY JUDGMENT – JOINT DISSENTING OPINION OF JUDGES RESS, PELLONPÄÄ, BAKA AND ŠIKUTA 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 nothing 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 that 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.