8 JALLOH v. GERMANY JUDGMENT accused to contribute to his own conviction and to actively do something he does not want to, namely regurgitate. This Court does not share the [Frankfurt Court of Appeal’s] view either, as the right of an accused to remain passive is not affected by his or her having to tolerate an intervention which merely provokes ‘involuntary bodily reactions’. ... (e) ... this Court does not have to decide whether the evidence obtained by the administration of emetics may be used if the accused has refused to comply with his duty to tolerate the measure and his resistance to the introduction of a tube though the nose has been overcome by physical force. That point is not in issue in the present case ... The Regional Court ... stated that [on the facts of] the case decided by the Frankfurt (Main) Court of Appeal it too would have excluded the use of the evidence obtained because of the clearly disproportionate nature of the measure. It did, however, expressly and convincingly demonstrate that the facts of the present case were different.” 38. In its judgment of 11 October 1996, however, the Frankfurt (Main) Court of Appeal held that Article 81a of the Code of Criminal Procedure did not authorise the administration of emetics. The case concerned the administration of an overdose of ipecacuanha syrup to a suspected drug dealer by force through a nasogastric tube and his injection with apomorphine. The court found: “The forced administration of emetics was not covered by the Code of Criminal Procedure. Even Article 81a does not justify the administration of an emetic by force. Firstly, the administration of an emetic constitutes neither a physical examination nor a bodily intrusion carried out by a doctor for examination purposes within the meaning of that provision. It is true that searching for foreign objects may be justified by Article 81a ... However, the emetic was used not to search for foreign objects, but to retrieve objects – whose presence was at least probable – in order to use them in evidence ... This aim was more akin to searching for or seizing an object within the meaning of Articles 102, 94 et seq. of the Code of Criminal Procedure than to a physical examination ... – although those provisions do not, on the face of it, include forcible interference with a person’s physical integrity as a possible measure. ... Secondly, an accused is not the object of criminal proceedings ... The forced administration of emetics violates the principle of passivity [Grundsatz der Passivität], since its purpose is to force the accused actively to do something that he is unwilling to do, namely regurgitate. This is neither permitted under Article 81a of the Code of Criminal Procedure nor compatible with the position of the accused in criminal proceedings. ... Consequently, the conduct of the prosecuting authorities constitutes unlawful interference with the accused’s physical integrity (Article 2 § 1, first sentence, of the Basic Law). ... The forcible administration of emetics in the absence of any legal basis therefor also violates the duty to protect human dignity and the accused’s general personality rights (Articles 1 § 1 and 2 § 1 of the Basic Law). ... The prohibition on obtaining the evidence [in that manner] and the other circumstances of the case prevent this evidence from being used in court. ...”