Decision of European Court of Human Rights, October 26, 2004 (case JALLOH v. GERMANY)

President:Mr I. Cabral Barreto
Defense:Germany
Resolution Date:October 26, 2004
 
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THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54810/00

by Abu Bakah JALLOH

against Germany

The European Court of Human Rights (Third Section), sitting on 26 October 2004 as a Chamber composed of:

Mr I. Cabral Barreto, President,

Mr G. Ress,

Mr L. Caflisch,

Mr R. Türmen,

Mr B. Zupančič,

Mrs M. Tsatsa-Nikolovska,

Mrs A. Gyulumyan, judges,

and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 30 January 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Abu Bakah Jalloh, is a national of Sierra Leone who was born in 1965 and lives in Cologne (Germany). He is represented before the Court by Mr U. Busch, a lawyer practising in Ratingen. The respondent Government are represented by Mr K. Stoltenberg, Ministerialdirigent.

  1. The circumstances of the case

    The facts of the case, as submitted by the parties, may be summarised as follows.

    1. Investigation proceedings

      On 29 October 1993 four plain-clothes policemen observed the applicant selling to two persons two small bags which they considered to contain drugs, and which the applicant had taken out of his mouth.

      When being arrested by the police, the applicant swallowed a small bag he still had in his mouth. As the police officers searching him did not find any drugs on him, the competent public prosecutor ordered that the applicant be administered emetics (Brechmittel) to provoke the vomiting of the bag (Exkorporation) with the assistance of a doctor.

      The applicant was thereupon brought to a hospital in Wuppertal-Elberfeld. As he refused to take the medicaments necessary for the measure, the police officers had to fix him while a doctor forcibly administered to him a salt solution and Ipecacuanha syrup by way of a tube introduced into his nose. The doctor also injected him apomorphine. Thereupon, the applicant vomited a small bag of 0.2182 g of cocaine.

      On 30 October 1993, following a warrant of arrest issued by the Wuppertal District Court, the applicant was placed in detention on remand until 23 March 1994.

    2. Court proceedings

      On 20 December 1993 the applicant's lawyer submitted to the Wuppertal District court that the relevant pieces of evidence had been obtained by illegal means and could therefore not be used in the criminal proceedings. He pointed out in particular that by provoking by force the vomiting of the small bag of cocaine, the police officers and the doctor who had participated in the operation were guilty of having caused bodily harm in the exercise of official duties (Körperverletzung im Amt). The administration of toxic substances was indeed prohibited by Section 136a of the Code of Criminal Procedure (Strafprozeßordnung - see Relevant domestic law and practice below). In the present case, there has even been a manipulation, as bodily reactions had been provoked by suppressing the control reactions of the brain and the body. In any event, the measure was disproportionate pursuant to Section 81a of the Code of Criminal Procedure (see Relevant domestic law and practice below), as it would have been possible to obtain the same result by waiting until the bag in question was excreted in the natural way. The only other method authorised by Section 81a of the Code of Criminal Procedure would have been an irrigation of the stomach.

      On 23 March 1994 the Wuppertal District Court convicted the applicant for drug trafficking and sentenced him to one year's imprisonment suspended on probation. It found in particular that the opinion of the defence, according to which the measure in question was disproportionate under Section 81a of the Code of Criminal Procedure in order to obtain a small bag of only 0.2 g of cocaine and according to which the results achieved could not be used, was not correct.

      The applicant, repeating his arguments, appealed against the judgment.

      In its judgment rendered on 17 May 1995 the Wuppertal Regional Court confirmed the judgment of the District Court, reducing the sentence to six months' imprisonment suspended on probation. It found in particular that the pieces of evidence obtained following the public prosecutor's order to provoke the vomiting of the bag of cocaine could be used in the proceedings. Pursuant to Section 81a of the Code of Criminal Procedure, the administration of the products in question even against the will of the applicant was legal. The intervention was necessary to conserve the evidence of drug trafficking, being the object of the present proceedings. It had been effected under medical supervision and by observing the rules of the art. There had neither been a danger for the life of the accused, nor a violation of the principle of proportionality.

      The applicant appealed against this judgment on points of law, submitting that the method used against the applicant violated Articles 1 and 2 of the Basic Law (Grundgesetz - see Relevant domestic law and practice below), and disregarded in particular human dignity.

      On 19 September 1995 the Düsseldorf Court of Appeal dismissed the applicant's appeal, as the judgment in question did not disclose any error of law to the detriment of the accused.

      The applicant thereupon lodged a complaint with the Federal Constitutional Court, reiterating that the measure in question was disproportionate under Article 81a of the Code of Criminal Procedure.

      On 15 September 1999 the Federal Constitutional Court refused to entertain the applicant's constitutional complaint. It found that the applicant's complaint, having regard to the subsidiary nature of a constitutional complaint, was inadmissible.

      According to the Constitutional Court, the administration of emetics, including apomorphine, being a derivative of morphine, raised serious constitutional issues, in particular medical questions, with respect to the right to physical integrity (Article 2 para. 2 of the Basic Law - see Relevant domestic law and practice below) and to the principle of proportionality. These issues have not yet been the subject-matter of proceedings before the criminal courts.

      The...

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