JALLOH v. GERMANY JUDGMENT
21
76. This finding does not by itself warrant the conclusion that the
impugned intervention contravenes Article 3. As noted above (see
paragraph 70 above), the Court has found on several occasions that the
Convention does not, in principle, prohibit recourse to a forcible medical
intervention that will assist in the investigation of an offence. However, any
interference with a person’s physical integrity carried out with the aim of
obtaining evidence must be the subject of rigorous scrutiny, with the
following factors being of particular importance: the extent to which
forcible medical intervention was necessary to obtain the evidence, the
health risks for the suspect, the manner in which the procedure was carried
out and the physical pain and mental suffering it caused, the degree of
medical supervision available and the effects on the suspect’s health
(compare and contrast also the criteria established by the United States
courts in similar cases – see paragraphs 51-52 above). In the light of all the
circumstances of the individual case, the intervention must not attain the
minimum level of severity that would bring it within the scope of Article 3.
The Court will now examine each of these elements in turn.
77. As regards the extent to which the forcible medical intervention was
necessary to obtain the evidence, the Court notes that drug trafficking is a
serious offence. It is acutely aware of the problem confronting Contracting
States in their efforts to combat the harm caused to their societies through
the supply of drugs (see, in particular, D. v. the United Kingdom, 2 May
1997, § 46, Reports 1997-III). However, in the present case it was clear
before the impugned measure was ordered and implemented that the street
dealer on whom it was imposed had been storing the drugs in his mouth and
could not, therefore, have been offering drugs for sale on a large scale. This
is reflected in the sentence (a six-month suspended prison sentence and
probation), which is at the lower end of the range of possible sentences. The
Court accepts that it was vital for the investigators to be able to determine
the exact amount and quality of the drugs that were being offered for sale.
However, it is not satisfied that the forcible administration of emetics was
indispensable in the instant case to obtain the evidence. The prosecuting
authorities could simply have waited for the drugs to pass through his
system naturally. It is significant in this connection that many other member
States of the Council of Europe use this method to investigate drugs
offences.
78. As regards the health risks attendant on the forcible medical
intervention, the Court notes that it is a matter of dispute between the parties
whether and to what extent the administration of ipecacuanha syrup through
a tube introduced into the applicant’s nose and the injection of apomorphine
posed a risk to his health. Whether or not such measures are dangerous is, as
has been noted above (see paragraphs 41-44), also a matter of dispute
among medical experts. While some consider it to be entirely harmless and
in the suspect’s best interest, others argue that in particular the use of a
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