42 JALLOH v. GERMANY JUDGMENT – CONCURRING OPINION OF JUDGE ZUPANČIČ the perpetrators but also gives official endorsement for such abhorrent conduct. The applicant, Mr Jalloh, has not been treated as a victim in any German criminal proceedings and has thus never been given the possibility to testify. In other words, Mr Jalloh could not claim that his pain and suffering were severe and the German courts have never been given the opportunity to examine this non-prosecuted issue. The issue comes totally unexplored before this Court. However, as in other analogous situations, the burden would clearly be on the State to show that Mr Jalloh, despite the fact that he had to be restrained by several policemen during this traumatising invasive procedure, possessed a sufficiently elevated threshold of pain and a sufficiently stable nervous system for the procedure of forced vomiting not to cause him severe anxiety, anguish, fear, and physical pain – not to mention the medical sequelae. For this reason, I maintain that the issue is not only whether in general forced vomiting produces severe pain and suffering but whether in this particular case such pain and suffering did in fact occur. The burden is on the Government. In the absence of proof to the contrary and given the principle that everyone is presumed to know the natural consequences of their acts, I am constrained to maintain that the pain and the suffering in this particular case were severe. Thus, we ought to speak of torture. II The second question concerns the use, by the German Courts, of the extracted cocaine package as evidence instrumental in obtaining Mr Jalloh’s conviction. In Rochin v. California1 Mr Justice Douglas stated: “I think that words taken from [the suspect’s] lips, capsules taken from his stomach, blood taken from his veins are all inadmissible provided they are taken from him without his consent. They are inadmissible because of the command of the Fifth Amendment.”2 There are seemingly pragmatic reasons for this prescriptive position to have been weakened by subsequent case-law to the contrary (see paragraphs 51-52 of the judgment). Essentially, however, the problem was that the rationale for the prescriptive norm treated as such by Mr Justice Douglas is too elemental – see infra the quote from Wigmore – to be immediately discernible. As a consequence, the exclusionary rule, which is simply the preventive remedy and the alter ego of the privilege against self-incrimination, has been reduced, mostly through the consistent commitment of Mr Justice 1. Rochin v. California, 342 US 165 (1952), at http://caselaw.lp.findlaw.com/ scripts/getcase.pl?court=us&vol=342&invol=165 2. Fifth Amendment to the United States Constitution: “No person shall be ... compelled in any criminal case to be a witness against himself ...”