R.S. v. Hungary (Application no. 65290/14)

A selection of key paragraph(s) can be found below the document.

57. Even where it is not motivated by reasons of medical necessity, Article 3 of the Convention does not as such prohibit recourse to a medical procedure in defiance of the will of a suspect in order to obtain from him or her evidence of his or her involvement in the commission of a criminal offence.  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 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 Jalloh v. Germany [GC], no. 54810/00, §§ 70-71, ECHR 2006‑IX).

58. Moreover, the Court has held that the following factors are of particular importance when assessing an interference with a person’s physical integrity carried out with the aim of obtaining evidence: the extent to which a 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 (ibid., § 76).

72. The authorities subjected the applicant to a serious interference with his physical and mental integrity, against his will. They forced him to undergo catheterisation, not for therapeutic reasons (for the relevant principles see Jalloh, cited above, § 69), but in order to retrieve evidence which they otherwise also obtained by taking the applicant’s blood sample. The manner in which the impugned measure was carried out was liable to arouse in the applicant feelings of insecurity, anguish and stress that were capable of humiliating and debasing him. Furthermore, there is no material that would allow the Court to conclude that the officers paid any consideration to the risk the procedure could have entailed for the applicant. Although it cannot be established thatthis was 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.

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