JALLOH v. GERMANY JUDGMENT 7 that are not permitted under the law on criminal procedure or holding out the prospect of an advantage that is not contemplated by statute shall be prohibited. 2. Measures which impair the accused’s memory or ability to understand and accept a given situation [Einsichtsfähigkeit] shall not be permitted. 3. The prohibition under sub-paragraphs 1 and 2 shall apply even if the accused has consented [to the proposed measure]. Statements obtained in breach of this prohibition shall not be used [in evidence], even if the accused has agreed to their use.” 35. German criminal courts and legal writers disagree as to whether Article 81a of the Code of Criminal Procedure authorises the administration of emetics to a suspected drug dealer who has swallowed drugs on arrest. 36. The view taken by the majority of the German courts of appeal (see, inter alia, the decision of the Bremen Court of Appeal of 19 January 2000, NStZ-RR 2000, p. 270, and the judgment of the Berlin Court of Appeal of 28 March 2000, JR 2001, pp. 162-64) is that Article 81a of the Code of Criminal Procedure can serve as a legal basis for the administration of emetics in such circumstances. 37. For example, in its judgment cited above, the Berlin Court of Appeal had to deal with the case of a suspected drug dealer who agreed to swallow ipecacuanha syrup after being threatened with its administration through a nasogastric tube if he refused. It found: “Pursuant to Article 81a § 1, first sentence, of the Code of Criminal Procedure, a physical examination of the accused may be ordered for the purpose of establishing facts of relevance to the proceedings. ... (a) Contrary to the view taken by the appellant, legal commentators are almost unanimous in agreeing that the administration of emetics in order to obtain quantities of drugs the accused has swallowed involves a bodily intrusion within the meaning of that provision (see HK-Lemke, StPO, 2nd edition, § 9; Dahs in Löwe-Rosenberg, StPO, 24th edition, § 16; KK-Senge, StPO, 4th edition, §§ 6, 14; see, with regard to Article 81a of the Code of Criminal Procedure, Rogall, SK-StPO, Article 81a, § 48 and NStZ 1998, pp. 66-67, and Schaefer, NJW 1997, pp. 2437 et seq.; contrast Frankfurt Court of Appeal, NJW 1997, p. 1647 with note by Weßlau, StV 1997, p. 341). This intrusion also does not violate human dignity protected by Article 1 § 1 of the Basic Law or the principle against self-incrimination contained in Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law. Pursuant to Article 2 § 2, third sentence, of the Basic Law, interferences with these basic rights are permitted if they have a statutory basis. The Federal Constitutional Court has already found on several occasions that, as a statutory provision enacted by Parliament, Article 81a of the Code of Criminal Procedure meets this requirement ... Furthermore, it has found more specifically that the administration of emetics in reliance on that provision did not give rise to any constitutional objections of principle either (see Federal Constitutional Court, StV 2000, p. 1 – the decision in the present case). It did not, therefore, find it necessary to discuss in detail the opinion expressed by the Frankfurt (Main) Court of Appeal (NJW 1997, pp. 1647-48) which is occasionally shared by legal writers (see Weßlau, StV 1997, pp. 341-42), ... that the administration of emetics forces the