EHRM, 11-07-2006, nr. 54810/00

Article 1 § 1 of the Basic Law reads as follows:

Article 2, in so far as relevant, provides:

Section 81a of the Code of Criminal Procedure, in so far as relevant, reads as follows:

Section 136a of the Code of Criminal Procedure on prohibited methods of interrogation (verbotene Vernehmungsmethoden) provides:

German criminal courts and legal writers disagree as to whether section 81a of the Code of Criminal Procedure authorises the administration of emetics to a suspected drugs dealer who has swallowed drugs on arrest.

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. 162–164) is that section 81a of the Code of Criminal Procedure can serve as a legal basis for the administration of emetics in such circumstances.

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:

In its judgment of 11 October 1996, however, the Frankfurt (Main) Court of Appeal held that section 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:

According to many legal writers, section 81a of the Code of Criminal Procedure authorises the administration of emetics to suspected drug dealers in order to obtain evidence (see also the authors cited above at paragraph 37). This view is taken, for example, by Rogall (NStZ 1998, pp. 66–68 and Systematischer Kommentar zur Strafprozeßordnung und zum Gerichtsverfassungsgesetz, München 2005, section 81a StPO, § 48) and by Kleinknecht / Meyer-Goßner (StPO, 44^th edition, section 81a, § 22 — administration of emetics permitted for the investigation of serious offences).

A considerable number of legal writers, however, take the view that the administration of emetics is not permitted by the Code of Criminal Procedure or section 81a in particular. This opinion is held, for example, by Dallmeyer (StV 1997, pp. 606–610 and KritV 2000, pp. 252–259), who considers that section 81a does not authorise a search — as opposed to an examination — of the interior of a defendant's body. Vetter (Problemschwerpunkte des § 81a StPO — Eine Untersuchung am Beispiel der Brechmittelvergabe im strafrechtlichen Ermittlungsverfahren, Neuried 2000, pp. 72–82, 161) considers that the forcible administration of emetics through a nasogastric tube is irreconcilable with the rules of medical science, disproportionate and liable to damage the defendant's health.

Medical experts disagree as to whether the forcible administration of emetics through the insertion of a nasogastric tube is advisable from a medical point of view. While some experts consider that emetics should be administered to a suspect in order to protect his health even if he resists such treatment, others take the view that such a measure entails serious health risks for the person concerned and should not therefore be carried out.

The medical experts who argue in favour of the forcible administration of emetics stress that even if this measure is not primarily carried out for medical reasons, it may nevertheless serve to prevent a possibly life-threatening intoxication. As the packaging of drugs swallowed on arrest is often unreliable, it is preferable from a medical standpoint for emetics to be administered. This measure poses very few risks, whereas there is a danger of death if the drugs are allowed to pass out of the body naturally. Drugs can be extracted from the stomach up to one hour, in some cases two, after being swallowed. Administering emetics is a safe and fast method (the emetic usually takes effect within 15 to 30 minutes) of retrieving evidence of a drugs offence, as it is rare for them not to work. Even though the forcible introduction of a tube through the nose can cause pain, it does not pose any health risks as the act of swallowing can be induced by the mechanical stimulus of the tube in the throat (see, inter alia, Birkholz / Kropp / Bleich / Klatt / Ritter, Exkorporation von Betäubungsmitteln — Erfahrungen im Lande Bremen, Kriminalistik 4/97, pp. 277–283).

The emetic Ipecacuanha syrup has a high margin of safety. Side-effects to be expected merely take the form of drowsiness, diarrhoea and prolonged vomiting. Rare, more serious complications include the Mallory-Weiss-syndrome or aspiration pneumonia. These may occur if the person concerned has sustained previous damage to his or her stomach or if the rules governing the administration of emetics, notably that the patient is fully alert and conscious, are not observed (see, for example, Birkholz / Kropp / Bleich / Klatt / Ritter, cited above, pp. 278–281; American Academy of Clinical Toxicology / European Association of Poisons Centres and Clinical Toxicologists, Position Paper: Ipecac Syrup, Journal of Toxicology, Clinical Toxicology, Vol. 42, No. 2, 2004, pp. 133–143, esp. p. 141).

Those medical experts who argue against the administration of emetics by force point out in particular that the forcible introduction of emetics through a nasogastric tube entails considerable health risks. Even though it is desirable for drugs to be eliminated from the suspect's body as quickly as possible, the use of a nasogastric tube or any other invasive method can be dangerous because of the risk of perforation of the drug packaging with potentially fatal consequences. Furthermore, if the tube is badly positioned liquid may enter the lungs and cause choking. Forced regurgitation also involves a danger of vomit being inhaled, which can lead to choking or a lung infection. The administration of emetics cannot therefore be medically justified without the consent of the person concerned. Otherwise, this method of securing evidence will be incompatible with the ethics of the medical profession, as has been illustrated in particular by the death of a suspect following such treatment (see, inter alia, Diamant-Berger / Garnier / Marc, Urgences Médico-Judiciaires, 1995, pp. 24–33; Scientific Committee of the Federal Medical Council, report dated 28 March 1996 in response to the Federal Constitutional Court's request to assess the dangers involved in the forcible administration of emetics; and the resolution adopted by the 105th German Medical Conference, Activity Report of the Federal Medical Association, point 3).

There is no uniform practice on the use of emetics to secure evidence of a drugs offence in the German Länder. Since 1993, five of the sixteen Länder (Berlin, Bremen, Hamburg, Hesse and Lower Saxony) have used this measure on a regular basis. Whereas some Länder discontinued its use following the death of a suspect, others are still resorting to it. In the vast majority of cases in which emetics have been used, the suspects chose to swallow the emetic themselves, after being informed that it would otherwise be administered forcibly. In other Länder, emetics are not forcibly administered, partly because, on the basis of medical advice, it is regarded as a disproportionate and dangerous measure, and partly because it is not considered a necessary means of combating drugs offences.

There have been two fatalities in Germany as a result of the forcible administration of Ipecacuanha syrup to suspected drug dealers through a tube introduced through the nose into the stomach. In 2001 a Cameroon national died in Hamburg. According to the investigation, he had suffered a cardiac arrest as a result of stress caused by the forcible administration of emetics. He was found to have been suffering from an undetected heart condition. In 2005 a Sierra Leonean national died in Bremen. The investigation into the cause of his death has not yet been completed. The emergency doctor and a medical expert suggested that the applicant had drowned as a result of a shortage of oxygen when water permeated his lungs. Criminal investigations for homicide caused by negligence have been launched against the doctor who pumped the emetic and water into the suspect's stomach and against the emergency doctor called to attend to him.

As a consequence of the fatality in Bremen, the Head of the Bremen Chief Public Prosecutors (Leitender Oberstaatsanwalt) has ordered the forcible administration of emetics to be discontinued in Bremen for the time being. Pending the outcome of the investigation, a new procedure has been set up by the Senators for Justice and Interior. Under this procedure, a person suspected of swallowing drugs must be informed by a doctor about the risks to his health if the drugs remain in his body. The suspect can choose to take emetics or a laxative if a medical examination discloses that it poses no risks to his health. Otherwise, he is detained in a specially equipped cell until the drug packages are passed naturally.

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as adopted by the United Nations General Assembly on 10 December 1984 (resolution 39/46), provides:

Article 1

Article 15

Article 16

In Rochin v. California (342 U.S. 165 (1952)), the United States Supreme Court reversed the petitioner's conviction for unlawful possession of drugs. On the basis of information that the petitioner was selling narcotics three state officers entered his home and forced their way into his bedroom. They unsuccessfully attempted to extract by force drug capsules, which the petitioner had been observed to put into his mouth. The officers then took him to a hospital, where an emetic was forced through a tube into his stomach against his will. He regurgitated two capsules which were found to contain morphine. These were admitted in evidence in the face of his objection. The U.S. Supreme Court held on 2 January 1952 that the conviction had been obtained by methods in violation of the Due Process Clause of the Fourteenth Amendment.

Mr Justice Frankfurter, delivering the opinion of the Court, found:

In State of Ohio v. Dario Williams (2004 WL 1902368 (Ohio App. 8 Dist.)), the Ohio Court of Appeals held on 26 August 2004 that the pumping of the defendant's stomach in the face of his objections was not an unreasonable search and seizure. The defendant was observed engaging in a hand-to-hand transaction typical of drug dealing. When police officers ordered the defendant to their vehicle, he put something in his mouth and ran off. In the opinion of the court, flushing out the defendant's stomach with a gastric lavage by a physician in a hospital setting was not an unreasonable measure, even though the defendant violently objected to the procedure and had to be sedated. Swallowing the cocaine, which had been seen in the defendant's mouth, put his life in jeopardy and he was destroying evidence.

Justice T.E. McMonagle, delivering the Court of Appeals' opinion, found:

The Government submitted a survey based on information obtained from the governments of the member States of the Council of Europe via their Agents or, if the government concerned had not provided information, from the German Embassy in the country concerned. According to the survey emetics are forcibly administered to suspected drug dealers in practice in four countries (Luxembourg, Norway, ‘the former Yugoslav Republic of Macedonia’ and Germany). In thirty-three countries emetics are not used against a suspect's will to retrieve drug bubbles that have been swallowed (Albania, Armenia, Austria, Belgium, Bosnia and Herzegovina, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Georgia, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Malta, Moldova, the Netherlands, Portugal, Romania, Russia, Serbia and Montenegro, the Slovak Republic, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom). In three countries (Croatia, Poland and Slovenia) there is a legal basis for the use of emetics, but no information was supplied as to whether this measure is applied in practice. No information with respect to the use of emetics in practice was obtained from six member States (Andorra, Azerbaijan, Bulgaria, Liechtenstein, San Marino and Monaco).

The applicant partly contested the Government's findings. He noted that the Government had said that three countries other than Germany (Luxembourg, ‘the former Yugoslav Republic of Macedonia’ and Norway) permitted the administration of emetics to suspected drug dealers and used the measure in practice. However, he said that the Government had failed to adduce any evidence of emetics being administered by force against the accused's will in those member States. With respect to Norway in particular, the applicant disputed that the forcible introduction of a nasogastric tube as in his case was legal. As regards the administration of emetics in Croatia, Poland and Slovenia, he contested the existence of any legal basis for such a measure in those countries, irrespective of the position in practice. Consequently, Germany was the only Contracting State which was proven to actually resort to the impugned measure. In all the other member States the authorities waited for the drugs to pass out of the body naturally.

Other materials before the Court confirm the parties' findings that emetics are not forcibly administered in practice in several Convention States examined (Belgium, Estonia, France, Ireland, the Netherlands, Spain and the United Kingdom). In these States, the authorities wait for the drugs to pass out of the body naturally. Use is routinely made of special toilets to recover and clean drugs that have been swallowed. The materials further indicated that in Norway special toilets (so-called Pacto 500 toilets) are generally used in order to recover ingested drugs. However, during its visit to Norway in 1993, the CPT witnessed the administration of an emetic (brine) to a detainee in Oslo police headquarters (see the CPT's Visit Report: Norway of 1993, A.3.b., § 25). With respect to Poland, it has not been confirmed whether in practice emetics are administered by force.

According to the applicant, the administration of emetics by force had constituted a serious interference with his physical integrity and posed a serious threat to his health, and even life, since the emetics used — Ipecacuanha syrup and apomorphine — could have provoked life-threatening side effects. The insertion of a tube by force through the nose of a suspect who did not co-operate in the procedure could cause damage to the nose, throat and gullet and even burst drug bubbles in the stomach. The danger of administering emetics by force was illustrated by the fact that it had already resulted in the death of two suspects in Germany. The vast majority of the member States of the Council of Europe as well as the United States considered this method to be illegal. The interference could not be justified on grounds of medical assistance. On the contrary, it merely increased the risk of the suspect being poisoned by the drugs he had swallowed. A suspect's express opposition to undergoing medical treatment had to be respected in a democratic society as part of the individual's right to self-determination.

The applicant further argued that the administration of emetics had been aimed at intimidating and debasing him in disregard of his human dignity. The manner in which he had been forced to undergo a life-threatening medical intervention had been violent, agonising and humiliating. He had been degraded to the point of having to vomit while being observed by several police officers. Being in police custody, he had found himself in a particularly vulnerable position.

Moreover, the applicant maintained that no anamnesis to establish his medical history and physical condition had been obtained by a doctor prior to the execution of the impugned measure. Nor had he been given any medical care and supervision in prison afterwards.

The applicant also stressed that he had sustained bodily injury, notably to his stomach, as was proved by a gastroscopy that had been performed in the prison hospital. Furthermore, he had been subjected to intense physical and mental suffering during the process of administration of the emetics and by the chemical effects of the substances concerned.

According to the Government, the forcible administration of emetics entailed merely negligible risks to health. Ipecacuanha syrup was not a dangerous substance. In fact, it was given to children who had been poisoned. The introduction of a very flexible tube through the applicant's nose had not put him at risk, even though he had resisted the procedure. The injection of apomorphine had not been dangerous either. The side effects and dangers described by the applicant could only be caused by chronic abuse or misuse of the emetics in question. The fact that two suspected drug dealers had died following the forcible administration of emetics in Hamburg and Bremen did not warrant the conclusion that the measure in general posed health risks. The method had been used on numerous occasions without giving rise to complications. The authorities resorted to the administration of emetics in those Länder where drug trafficking was a serious problem. In the vast majority of cases suspects chose to swallow the emetics after being informed that force would be used if they refused to do so. In the Hamburg case the defendant had suffered from an undetected heart condition and would have been equally at risk if he had resisted a different kind of enforcement measure. In the Bremen case the possibility that the defendant was poisoned by the drugs he had swallowed could not be excluded.

The Government pointed out that there had been a real, immediate risk that the drug bubbles, which had not been packaged for long-term transport inside the body, would leak and poison the applicant. Even though the emetics had been administered primarily to obtain evidence rather than for medical reasons, the removal of the drugs from the applicant's stomach could still be considered to be required on medical grounds. It was part of the State's positive obligation to protect the applicant by provoking the regurgitation of the drugs. Awaiting the natural excretion of the drugs would not have been as effective a method of investigation or any less humiliating and may, in fact, have posed risks to his health. It was significant in this connection that the administration of emetics to a juvenile was only considered an option if he or she was suspected of selling drugs on a commercial basis.

In the Government's view, the impugned measure had not gone beyond what had been necessary to secure evidence of the commission of a drugs offence. The applicant had been administered harmless emetics in a hospital by a doctor acting lege artis. Such a measure could not be considered humiliating in the circumstances.

The Government further maintained that the emetics were administered to the applicant only after an anamnesis had been obtained by a doctor in a hospital. The same doctor had duly supervised the administration of the emetics to the applicant.

The Government stressed that there was no evidence that the applicant had suffered any injuries or lasting damage as a result of the administration of the emetics. He had merely been tired for several hours after the execution of the measure, either because of the effects of the apomorphine or because of the resistance he had put up. In the proceedings before the Court the applicant had claimed for the first time that he had suffered further damage to his health. However, he had not produced any documentary evidence to support his allegations.

According to the Court's well-established case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, inter alia, Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001-VII; Mouisel v. France, no. 67263/01, § 37, ECHR 2002-IX; Gennadi Naoumenko v. Ukraine, no. 42023/98, § 108, 10 February 2004). Allegations of ill-treatment must be supported by appropriate evidence (see, mutatis mutandis, Klaas v. Germany, judgment of 22 September 1993, Series A no. 269, pp. 17–18, § 30). To assess this evidence, the Court adopts the standard of proof ‘beyond reasonable doubt’ but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64–65, § 161in fine; Labita, cited above, § 121).

Treatment has been held by the Court to be ‘inhuman’ because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering (see Labita v. Italy[GC], no. 26772/95, § 120, ECHR 2000-IV). Treatment has been considered ‘degrading’ when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance (see Hurtado v. Switzerland, Commission's report of 8 July 1993, Series A no. 280, p. 14, § 67), or when it was such as to drive the victim to act against his will or conscience (see, for example, Denmark, Norway, Sweden and the Netherlands v. Greece (‘the Greek case’), nos. 3321/67 et al., Commission's report of 5 November 1969, Yearbook 12, p. 186; Keenan v. the United Kingdom, no. 27229/95, § 110, ECHR 2001-III). Furthermore, in considering whether treatment is ‘degrading’ within the meaning of Article 3, one of the factors which the Court will take into account is the question whether its object was to humiliate and debase the person concerned, although the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see Raninen v. Finland, judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII, pp. 2821–22, § 55; Peers v. Greece, no. 28524/95, §§ 68 and 74, ECHR 2001-III; Price, cited above, § 24). In order for a punishment or treatment associated with it to be ‘inhuman’ or ‘degrading’, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see Labita, cited above, § 120).

With respect to medical interventions to which a detained person is subjected against his or her will, Article 3 of the Convention imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance. The persons concerned nevertheless remain under the protection of Article 3, whose requirements permit of no derogation (Mouisel, cited above, § 40; Gennadi Naoumenko, cited above, § 112). A measure which is of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading (see, in particular, Herczegfalvy v. Austria, judgment of 24 September 1992, Series A no. 244, pp. 25–26, § 82; Gennadi Naoumenko, cited above, § 112). This can be said, for instance, about force-feeding that is aimed at saving the life of a particular detainee who consciously refuses to take food. The Court must nevertheless satisfy itself that a medical necessity has been convincingly shown to exist and that procedural guarantees for the decision, for example to force-feed, exist and are complied with (Nevmerzhitsky v. Ukraine, no. 54825/00, § 94, 5 April 2005).

Even where it is not motivated by reasons of medical necessity, Articles 3 and 8 of the Convention do not as such prohibit recourse to a medical procedure in defiance of the will of a suspect in order to obtain from him evidence of his involvement in the commission of a criminal offence. Thus, the Convention institutions have found on several occasions that the taking of blood or saliva samples against a suspect's will in order to investigate an offence did not breach these Articles in the circumstances of the cases examined by them (see, inter alia, X. v. the Netherlands, no. 8239/78, Commission decision of 4 December 1978, Decisions and Reports (DR) 16, pp. 187–189; Schmidt v. Germany (dec.), no. 32352/02, 5 January 2006).

However, any recourse to a forcible medical intervention in order to obtain evidence of a crime must be convincingly justified on the facts of a particular case. This is especially true where the procedure is intended to retrieve from inside the individual's body real evidence of the very crime of which he is suspected. The particularly intrusive nature of such an act requires a strict scrutiny of all the surrounding circumstances. In this connection, due regard must be had to the seriousness of the offence at issue. The authorities must also demonstrate that they took into consideration alternative methods of recovering the evidence. Furthermore, the procedure must not entail any risk of lasting detriment to a suspect's health (see, mutatis mutandis, Nevmerzhitsky, cited above, §§ 94, 97; Schmidt, cited above).

Moreover, as with interventions carried out for therapeutic purposes, the manner in which a person is subjected to a forcible medical procedure in order to retrieve evidence from his body must not exceed the minimum level of severity prescribed by the Court's case-law on Article 3 of the Convention. In particular, account has to be taken of whether the person concerned experienced serious physical pain or suffering as a result of the forcible medical intervention (see Peters v. the Netherlands, no. 21132/93, Commission decision of 6 April 1994; Schmidt, cited above; Nevmerzhitsky, cited above, §§ 94, 97).

Another material consideration in such cases is whether the forcible medical procedure was ordered and administered by medical doctors and whether the person concerned was placed under constant medical supervision (see, for instance, Ilijkov v. Bulgaria, no. 33977/96, Commission decision of 20 October 1997).

A further relevant factor is whether the forcible medical intervention resulted in any aggravation of his or her state of health and had lasting consequences for his or her health (see Ilijkov, cited above, and, mutatis mutandis, Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004).

At the outset the Court notes that in the Government's view the removal of the drugs from the applicant's stomach by the administration of emetics could be considered to be required on medical grounds, as he risked death through poisoning. However, it is to be observed that the domestic courts all accepted that, when ordering the administration of emetics, the authorities had acted on the basis of section 81a of the Code of Criminal Procedure. This provision entitles the prosecuting authorities to order a bodily intrusion to be effected by a doctor without the suspect's consent in order to obtain evidence, provided that there is no risk of damage to the suspect's health. However, section 81a does not cover measures taken to avert an imminent danger to a person's health. Furthermore, it is undisputed that the emetics were administered in the absence of any prior assessment of the dangers involved in leaving the drug bubble in the applicant's body. The Government also stated that emetics are never administered to juvenile dealers unless they are suspected of selling drugs on a commercial basis. Juvenile dealers are, however, in no less need of medical treatment than adults. Adult dealers, for their part, run the same risks to their health as juvenile dealers when administered emetics. Consequently, the Court is not satisfied that the prosecuting authorities' decision to order the impugned measure was based on and required by medical reasons, that is, the need to protect the applicant's health. Instead, it was aimed at securing evidence of a drugs offence.

This finding does not by itself warrant the conclusion that the impugned intervention contravenes Article 3. As noted above (see paragraph 70), 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 US 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.

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, judgment of 2 May 1997, Reports 1997-III, pp. 791–792, § 46). 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 months' suspended prison sentence with 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 out of the 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.

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 nasogastric tube to administer emetics by force entails serious risks to life and limb and should therefore be prohibited. The Court is not satisfied that the forcible administration of emetics, a procedure that has to date resulted in the deaths of two people in the respondent State, entails merely negligible health risks. It also observes in this respect that the actual use of force — as opposed to the mere threat of force — has been found to be necessary in the respondent State in only a small proportion of the cases in which emetics have been administered. However, the fatalities occurred in cases in which force was used. Furthermore, the fact that in the majority of the German Länder and in at least a large majority of the other member States of the Council of Europe the authorities refrain from forcibly administering emetics does tend to suggest that such a measure is considered to pose health risks.

As to the manner in which the emetics were administered, the Court notes that, after refusing to take the emetics voluntarily, the applicant was pinned down by four police officers, which shows that force verging on brutality was used against him. A tube was then fed through his nose into his stomach to overcome his physical and mental resistance. This must have caused him pain and anxiety. He was subjected to a further bodily intrusion against his will through the injection of another emetic. Account must also be taken of the applicant's mental suffering while he waited for the emetics to take effect. During this time he was restrained and kept under observation by police officers and a doctor. Being forced to regurgitate under these conditions must have been humiliating for him. The Court does not share the Government's view that waiting for the drugs to pass out of the body naturally would have been just as humiliating. Although it would have entailed some invasion of privacy because of the need for supervision, such a measure nevertheless involves a natural bodily function and so causes considerably less interference with a person's physical and mental integrity than forcible medical intervention (see, mutatis mutandis, Peters, cited above; Schmidt, cited above).

As regards the medical supervision of the administration of the emetics, the Court notes that the impugned measure was carried out by a doctor in a hospital. In addition, after the measure was executed the applicant was examined by a doctor and declared fit for detention. However, it is a matter of dispute between the parties whether an anamnesis of the applicant was obtained prior to the execution of the measure in order to ascertain whether his health might be at risk if emetics were administered to him against his will. Since the applicant violently resisted the administration of the emetics and spoke no German and only broken English, the assumption must be that he was either unable or unwilling to answer any questions that were put by the doctor or to submit to a prior medical examination. The Government have not submitted any documentary or other evidence to show otherwise.

As to the effects of the impugned measure on the suspect's health, the Court notes that the parties disagree about whether the applicant has suffered any lasting damage to his health, notably to his stomach. Having regard to the material before it, it finds that it has not been established that either his treatment for stomach troubles in the prison hospital two and a half months after his arrest or any subsequent medical treatment he received was caused by the forcible administration of the emetics. This conclusion does not, of course, call into question the Court's above finding that the forcible medical intervention was not without possible risk to the applicant's health.

Having regard to all the circumstances of the case, the Court finds that the impugned measure attained the minimum level of severity required to bring it within the scope of Article 3. The authorities subjected the applicant to a grave interference with his physical and mental integrity against his will. They forced him to regurgitate, not for therapeutic reasons, but in order to retrieve evidence they could equally have obtained by less intrusive methods. The manner in which the impugned measure was carried out was liable to arouse in the applicant feelings of fear, anguish and inferiority that were capable of humiliating and debasing him. Furthermore, the procedure entailed risks to the applicant's health, not least because of the failure to obtain a proper anamnesis beforehand. Although this was not the intention, the measure was implemented in a way which caused the applicant both physical pain and mental suffering. He therefore has been subjected to inhuman and degrading treatment contrary to Article 3.

Accordingly, the Court concludes that there has been a violation of Article 3 of the Convention.

In the applicant's view, the administration of the emetics was illegal and violated Articles 3 and 8 of the Convention. As the evidence thereby obtained had formed the sole basis for his conviction, the criminal proceedings against him had been unfair.

The applicant further argued that by forcing him against his will to produce evidence of an offence the authorities had violated his right not to incriminate himself and therefore his right to a fair trial. The principle against self-incrimination was not limited to statements obtained by coercion, but extended to objects so obtained. Moreover, the facts of his case were distinguishable from those in the Saunders v. the United Kingdom case. Unlike the cases of blood or DNA testing referred to by the Court in its judgment in that case, the administration of emetics entailed the use of chemical substances that provoked an unnatural and involuntary activity of the body in order to obtain the evidence. His refusal to swallow the emetics was overcome by the use of considerable force. Therefore, the evidence that had been obtained had not existed independently of his will and he had been forced actively to contribute to his own conviction. The administration of emetics was comparable to the administration of a truth serum to obtain a confession, a practice which was expressly forbidden by section 136a of the Code of Criminal Procedure. He referred to the judgment of the Frankfurt (Main) Court of Appeal of 11 October 1996 in support of his contention.

In the Government's view, the administration of the emetics to the applicant had not contravened either Article 3 or Article 8 of the Convention. Consequently, the use of the drug bubbles thereby obtained as evidence in the criminal proceedings against the applicant had not rendered his trial unfair. Determining the exact nature, amount and quality of the drugs being sold by the applicant had been a crucial factor in securing the applicant's conviction and passing sentence.

The Government further submitted that the right not to incriminate oneself only prohibited forcing a person to act against his or her will. Provoking an emesis was a mere reaction of the body which could not be controlled by a person's will, and was therefore not prohibited by the principle against self-incrimination. The suspect was not thereby forced to contribute actively to securing the evidence. The accused's initial refusal to take the emetics could not be relevant, as otherwise all investigative measures aimed at breaking a suspect's will to conceal evidence, such as taking blood samples by force or searching houses, would be prohibited.

Moreover, the Government argued that according to the Court's judgment in the case of Saunders v. the United Kingdom, drugs obtained by the forcible administration of emetics were admissible in evidence. If it was possible to use bodily fluids or cells as evidence, then a fortiori it had to be possible to use objects which were not part of the defendant's body. Furthermore, the administration of emetics, which the applicant merely had to endure passively, was not comparable to the administration of a truth serum as prohibited by section 136a of the Code of Criminal Procedure, which broke the suspect's will not to testify.

The Court reiterates that its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45–46; Teixeira de Castro v. Portugal, judgment of 9 June 1998, Reports 1998-IV, p. 1462, § 34).

It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence — for example, evidence obtained unlawfully in terms of domestic law — may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the ‘unlawfulness’ in question and, where violation of another Convention right is concerned, the nature of the violation found (see, inter alia, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000-V; P.G. and J.H. v. the United Kingdom, no. 44787/98, § 76, ECHR 2001-IX; Allan v. the United Kingdom, no. 48539/99, § 42, ECHR 2002-IX).

In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence have been respected. It must be examined in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubts on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see, inter alia, Khan, cited above, §§ 35, 37; Allan, cited above, § 43).

The general requirements of fairness contained in Article 6 apply to all criminal proceedings, irrespective of the type of offence at issue. Nevertheless, when determining whether the proceedings as a whole have been fair the weight of the public interest in the investigation and punishment of the particular offence at issue may be taken into consideration and be weighed against the individual interest that the evidence against him be gathered lawfully. However, public interest concerns cannot justify measures which extinguish the very essence of an applicant's defence rights, including the privilege against self-incrimination guaranteed by Article 6 of the Convention (see, mutatis mutandis, Heaney and McGuinness v. Ireland, no. 34720/97, §§ 57–58, ECHR 2000-XII).

As regards, in particular, the examination of the nature of the Convention violation found the Court recalls that notably in the cases of Khan (cited above, §§ 25–28) and P.G. and J.H. v. the United Kingdom (cited above, §§ 37–38) it has found the use of covert listening devices to be in breach of Article 8 since recourse to such devices lacked a legal basis in domestic law and the interferences with those applicants' right to respect for private life were not ‘in accordance with the law’. Nonetheless, the admission in evidence of information obtained thereby did not in the circumstances of the cases conflict with the requirements of fairness guaranteed by Article 6 § 1.

However, different considerations apply to evidence recovered by a measure found to violate Article 3. An issue may arise under Article 6 § 1 in respect of evidence obtained in violation of Article 3 of the Convention, even if the admission of such evidence was not decisive in securing the conviction (see İçöz v. Turkey (dec.), no. 54919/00, 9 January 2003; and Koç v. Turkey (dec.), no. 32580/96, 23 September 2003). The Court reiterates in this connection that Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim's conduct. Unlike most of the substantive clauses of the Convention, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see, inter alia, Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, p. 1855, § 79; and Selmouni v. France[GC], no. 25803/94, § 95, ECHR 1999-V).

As regards the use of evidence obtained in breach of the right to silence and the privilege against self-incrimination, the Court recalls that these are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see, inter alia, Saunders v. the United Kingdom, judgment of 17 December 1996, Reports 1996-VI, p. 2064, § 68; Heaney and McGuinness, cited above, § 40; J.B. v. Switzerland, no. 31827/96, § 64, ECHR 2001-III; and Allan, cited above, § 44).

In examining whether a procedure has extinguished the very essence of the privilege against self-incrimination, the Court will have regard, in particular, to the following elements: the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put (see, for example, Tirado Ortiz and Lozano Martin v. Spain (dec.), no. 43486/98, ECHR 1999-V; Heaney and McGuinness, cited above, §§ 51–55; and Allan, cited above, § 44).

The Court has consistently held, however, that the right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood, urine, hair or voice samples and bodily tissue for the purpose of DNA testing (see Saunders, cited above, pp. 2064–65, § 69; Choudhary v. the United Kingdom (dec.), no. 40084/98, 4 May 1999; J.B. v. Switzerland, cited above, § 68; and P.G. and J.H. v. the United Kingdom, cited above, § 80).

In determining whether in the light of these principles the criminal proceedings against the applicant can be considered fair, the Court notes at the outset that the evidence secured through the administration of emetics to the applicant was not obtained ‘unlawfully’ in breach of domestic law. It recalls in this connection that the national courts found that section 81a of the Code of Criminal Procedure permitted the impugned measure.

The Court held above that the applicant was subjected to inhuman and degrading treatment contrary to the substantive provisions of Article 3 when emetics were administered to him in order to force him to regurgitate the drugs he had swallowed. The evidence used in the criminal proceedings against the applicant was thus obtained as a direct result of a violation of one of the core rights guaranteed by the Convention.

As noted above, the use of evidence obtained in violation of Article 3 in criminal proceedings raises serious issues as to the fairness of such proceedings. The Court has not found in the instant case that the applicant was subjected to torture. In its view, incriminating evidence — whether in the form of a confession or real evidence — obtained as a result of acts of violence or brutality or other forms of treatment which can be characterised as torture — should never be relied on as proof of the victim's guilt, irrespective of its probative value. Any other conclusion would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe or, as it was so well put in the US Supreme Court's judgment in the Rochin case (see paragraph 50 above), to ‘afford brutality the cloak of law’. It notes in this connection that Article 15 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides that statements which are established to have been made as a result of torture shall not be used in evidence in proceedings against the victim of torture.

Although the treatment to which the applicant was subjected did not attract the special stigma reserved to acts of torture, it did attain in the circumstances the minimum level of severity covered by the ambit of the Article 3 prohibition. It cannot be excluded that on the facts of a particular case the use of evidence obtained by intentional acts of ill-treatment not amounting to torture will render the trial against the victim unfair irrespective of the seriousness of the offence allegedly committed, the weight attached to the evidence and the opportunities which the victim had to challenge its admission and use at his trial.

In the present case, the general question whether the use of evidence obtained by an act qualified as inhuman and degrading treatment automatically renders a trial unfair can be left open. The Court notes that, even if it was not the intention of the authorities to inflict pain and suffering on the applicant, the evidence was obtained by a measure which breached one of the core rights guaranteed by the Convention. Furthermore, it was common ground between the parties that the drugs obtained by the impugned measure were the decisive element in securing the applicant's conviction. It is true that, as was equally uncontested, the applicant was given the opportunity, which he took, of challenging the use of the drugs obtained by the impugned measure. However, any discretion on the part of the national courts to exclude that evidence could not come into play as they considered the administration of emetics to be authorised by the domestic law. Moreover, the public interest in securing the applicant's conviction cannot be considered to have been of such weight as to warrant allowing that evidence to be used at the trial. As noted above, the measure targeted a street dealer selling drugs on a relatively small scale who was finally given a six months' suspended prison sentence and probation.

In these circumstances, the Court finds that the use in evidence of the drugs obtained by the forcible administration of emetics to the applicant rendered his trial as a whole unfair.

This finding is of itself a sufficient basis on which to conclude that the applicant was denied a fair trial in breach of Article 6. However, it considers it appropriate to address also the applicant's argument that the manner in which the evidence was obtained and the use made of it undermined his right not to incriminate himself. To that end, it will examine, firstly, whether this particular right was relevant to the circumstances of the applicant's case and, in the affirmative, whether it has been breached.

As regards the applicability of the principle against self-incrimination in this case, the Court observes that the use at the trial of ‘real’ evidence — as opposed to a confession — obtained by forcible interference with the applicant's bodily integrity is at issue. It notes that the privilege against self-incrimination is commonly understood in the Contracting States and elsewhere to be primarily concerned with respecting the will of the defendant to remain silent in the face of questioning and not to be compelled to provide a statement.

However, the Court has on occasion given the principle of self-incrimination as protected under Article 6 § 1a broader meaning so as to encompass cases in which coercion to hand over real evidence to the authorities was at issue. In the Funke case (cited above, p. 22, § 44), for instance, the Court found that an attempt to compel the applicant to disclose documents, and thereby to provide evidence of offences he had allegedly committed, violated his right not to incriminate himself. Similarly, in J.B. v. Switzerland (cited above, §§ 63–71) the Court considered the State authorities' attempt to compel the applicant to submit documents which might have provided information about tax evasion to be in breach of the principle against self-incrimination (in its broader sense).

In the Saunders case, the Court considered that the principle against self-incrimination did not cover ‘material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing’ (cited above, pp. 2064–65, § 69).

In the Court's view, the evidence at issue in the present case, namely, drugs hidden in the applicant's body which were obtained by the forcible administration of emetics, could be considered to fall into the category of material having an existence independent of the will of the suspect, the use of which is generally not prohibited in criminal proceedings. However, there are several elements which distinguish the present case from the examples listed in Saunders. Firstly, as with the impugned measures in the Funke and J.B. v. Switzerland cases, the administration of emetics was used to retrieve real evidence in defiance of the applicant's will. Conversely, the bodily material listed in the Saunders case concerned material obtained by coercion for forensic examination with a view to detecting, for example, the presence of alcohol or drugs.

Secondly, the degree of force used in the present case differs significantly from the degree of compulsion normally required to obtain the types of material referred to in the Saunders case. To obtain such material, a defendant is requested to endure passively a minor interference with his physical integrity (for example when blood or hair samples or bodily tissue are taken). Even if the defendant's active participation is required, it can be seen from Saunders that this concerns material produced by the normal functioning of the body (such as, for example, breath, urine or voice samples). In contrast, compelling the applicant in the instant case to regurgitate the evidence sought required the forcible introduction of a tube through his nose and the administration of a substance so as to provoke a pathological reaction in his body. As noted earlier, this procedure was not without risk to the applicant's health.

Thirdly, the evidence in the present case was obtained by means of a procedure which violated Article 3. The procedure used in the applicant's case is in striking contrast to procedures for obtaining, for example, a breath test or a blood sample. Procedures of the latter kind do not, unless in exceptional circumstances, attain the minimum level of severity so as to contravene Article 3. Moreover, though constituting an interference with the suspect's right to respect for private life, these procedures are, in general, justified under Article 8 § 2 as being necessary for the prevention of criminal offences (see, inter alia, Tirado Ortiz and Lozano Martin, cited above).

Consequently, the principle against self-incrimination is applicable to the present proceedings.

In order to determine whether the applicant's right not to incriminate himself has been violated, the Court will have regard, in turn, to the following factors: the nature and degree of compulsion used to obtain the evidence; the weight of the public interest in the investigation and punishment of the offence at issue; the existence of any relevant safeguards in the procedure; and the use to which any material so obtained is put.

As regards the nature and degree of compulsion used to obtain the evidence in the present case, the Court reiterates that forcing the applicant to regurgitate the drugs significantly interfered with his physical and mental integrity. The applicant had to be immobilised by four policemen, a tube was fed through his nose into his stomach and chemical substances were administered to him in order to force him to surrender up the evidence sought by means of a pathological reaction of his body. This treatment was found to be inhuman and degrading and therefore to violate Article 3.

As regards the weight of the public interest in using the evidence to secure the applicant's conviction, the Court observes that, as noted above, the impugned measure targeted a street dealer who was offering drugs for sale on a comparably small scale and was finally given a six months' suspended prison sentence and probation. In the circumstances of the instant case, the public interest in securing the applicant's conviction could not justify recourse to such a grave interference with his physical and mental integrity.

Turning to the existence of relevant safeguards in the procedure, the Court observes that section 81a of the Code of Criminal Procedure prescribed that bodily intrusions had to be carried out lege artis by a doctor in a hospital and only if there was no risk of damage to the defendant's health. Although it can be said that domestic law did in general provide for safeguards against arbitrary or improper use of the measure, the applicant, relying on his right to remain silent, refused to submit to a prior medical examination. He could only communicate in broken English, which meant that he was subjected to the procedure without a full examination of his physical aptitude to withstand it.

As to the use to which the evidence obtained was put, the Court reiterates that the drugs obtained following the administration of the emetics were the decisive evidence in his conviction for drug-trafficking. It is true that the applicant was given and took the opportunity to oppose the use at his trial of this evidence. However, and as noted above, any possible discretion the national courts may have had to exclude the evidence could not come into play, as they considered the impugned treatment to be authorised by national law.

Having regard to the foregoing, the Court would also have been prepared to find that allowing the use at the applicant's trial of evidence obtained by the forcible administration of emetics infringed his right not to incriminate himself and therefore rendered his trial as a whole unfair.

Accordingly, there has been a violation of Article 6 § 1 of the Convention.