CEDH · CASELAW;CLIN;ENG — 2 juillet 2019

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Hungary - 65290/14 Judgment 2.7.2019 [Section IV] Article 3 Degrading treatment Inhuman treatment Forcible catheterisation to obtain evidence of traffic offence: violation Facts – The applicant was forcibly catheterised at a police station in order to obtain a urine sample. Law – Article 3 ( substantive aspect ): Article   3 did not as such prohibit recourse to a medical procedure in defiance of the will of a suspect in order to obtain evidence. However, any recourse to a forcible medical intervention had to be convincingly justified on the facts of a particular case. That was especially true where the procedure was intended to retrieve from inside the individual’s body real evidence of the very crime of which he was suspected. The particularly intrusive nature of such an act required strict scrutiny of all the surrounding circumstances. In that connection, due regard had to be had to the seriousness of the offence in issue. The authorities had also to demonstrate that they had taken into consideration alternative methods of recovering the evidence. Furthermore, the procedure could not entail any risk of lasting detriment to a suspect’s health. The following factors were 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 had been necessary to obtain the evidence, the health risks for the suspect, the manner in which the procedure had been 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. There was no well-established domestic practice or regulations concerning the use and method of catheterisation to obtain evidence of a person’s involvement in an offence. Neither did the domestic law provide guarantees against the arbitrary or improper taking of urine samples through catheterisation. In particular, there was no consistent approach to the necessary form of consent in such situations. When assessing the issue of consent, the domestic authorities had been confronted with two conflicting versions of events. The investigating authorities had interviewed the applicant, police officers and other witnesses and had assembled the relevant evidence. Thus, it could not be said that the authorities had not made a genuine attempt to eliminate the discrepancies between the applicant’s specific statements and the police officers’ statements, but rather that, following the examination, they had decided to give preference to the police officers’ account of the events. However, they had paid no heed to the surrounding circumstances, in particular to the fact that the applicant’s alleged consent had been given while he had been under the influence of alcohol and under the control of the police officers. In any event, bearing in mind the applicant’s right to withdraw his initial consent at any time, as guaranteed under domestic law, the applicant had clearly resisted the intervention, as evidenced by the fact that the police officers had had to pin him down in order for the procedure to be completed. From a medical point of view, there had been the possibility to interrupt the catheterisation once it had started. Taking into account all the above-mentioned facts, the Court could not conclude that there had been free and informed consent by the applicant throughout the intervention. An order had been given for the urine sample to be taken in order to determine whether the applicant had been involved in a traffic-related offence. Thus, it had been intended to retrieve real evidence from inside the applicant’s body, and had not been carried out in response to a potential medical necessity. Given the intrusive nature of the act, the applicant’s case was to be distinguished from situations where an intervention was considered to be of minor importance. Furthermore, although the procedure had been carried out by a doctor in a medical emergency service, the police officers had restrained the applicant and kept him handcuffed throughout the medical intervention to which he had been forcibly subjected. The Court accepted that the police officers had deemed it necessary to determine the blood alcohol level of the applicant and to find out whether he had been under the influence of drugs, as he was a road user. However, the recourse to a catheterisation was unnecessary in the light of the fact that the police officers had also proceeded with the taking of a blood sample for the same purposes. Moreover, catheterisation was not a generally accepted and applied measure in the context of domestic practice and, in comparison to blood tests, there was no clear stance as to the utility of the measure in obtaining evidence of drug-related offences. Domestic medical practice disagreed as to whether the intervention should be considered to be of an invasive nature. Having regard to the divergent domestic approach, it could not be established with certainty that the intervention had entailed no possible risk to the applicant’s health. The authorities had subjected the applicant to a serious interference with his physical and mental integrity, against his will. The manner in which the impugned measure had been carried out had been liable to arouse in the applicant feelings of insecurity, anguish and stress that were capable of humiliating and debasing him. Furthermore, there was no material that would allow the Court to conclude that the officers had paid any consideration to the risk the procedure could have entailed for the applicant. Although it could not be established that that had been the intention, the measure had been implemented in a way which had caused the applicant both physical pain and mental suffering. Conclusion : violation (unanimously). Article 41: EUR 9,000 in respect of non-pecuniary damage. (See also Jalloh v. Germany [GC], 54810/00, 11   July 2006, Information Note   88 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes