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.