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. ...”
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents