Jalloh v. Germany (Application no. 54810/00)

Key paragraph(s) can be found below the document.

70. 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. 187-89, and Schmidt v. Germany (dec.), no. 32352/02, 5 January 2006).

71. 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 in 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 and 97, and Schmidt, cited above).

72. 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, DR 77-B; Schmidt, cited above; and Nevmerzhitsky, cited above, §§ 94 and 97).

73. 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 example, Ilijkov v. Bulgaria, no. 33977/96, Commission decision of 20 October 1997, unreported).

74. 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).

82. 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 has therefore been subjected to inhuman and degrading treatment contrary to Article 3.


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