The ECHR judgment of July 2, 2019 in the case of R.S. (R.S.) v. Hungary (application No. 65290/14).
In 2014, the applicant was assisted in preparing the application. Subsequently, the application was communicated by Hungary.
In the case, the application about the forced use of a catheter by police officers to obtain a urine sample from the applicant as evidence of an offense was successfully considered. The case has violated the requirements of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
At the police station, a catheter was forcibly used against the applicant to obtain a urine sample from him.
QUESTIONS OF LAW
Regarding compliance with article 3 of the Convention. (a) Substantive aspect. Article 3 of the Convention as such does not prohibit the use of medical procedures to obtain evidence. However, any compulsory medical intervention must be convincingly justified by the facts of a particular case. This is all the more true if the purpose of the procedure is to extract from the human body real evidence of a crime of which he is suspected.
The particularly intrusive nature of such a measure requires careful consideration of all the attendant circumstances. In this regard, the gravity of the alleged offense must be duly taken into account. Authorities must also prove that they have considered using alternative methods of obtaining evidence. Moreover, the applicable procedure should not lead to any risk of sustained harm to the health of the suspect. In assessing the interference with the right to physical integrity of a person in order to obtain evidence, the following factors are of practical importance: the degree to which compulsory medical intervention was necessary to obtain evidence, the health risks of the suspect, the method of the procedure and the physical pain and mental suffering inflicted, the degree of available medical surveillance and the health consequences of the suspect.
In Hungary, there was no established practice or regulation in the field of methods of using a catheter to obtain evidence of a person's involvement in the commission of an offense. Hungarian law also did not provide guarantees against arbitrary and inappropriate collection of urine samples using a catheter. In particular, there was no consistent approach to what the necessary form of expression of consent should be in such situations. Regarding the assessment of the issue of consent, the Hungarian authorities were faced with two conflicting versions of events. The investigating authorities questioned the applicant, police officers and other witnesses, and gathered relevant evidence. Therefore, it cannot be considered that the Hungarian authorities did not make bona fide attempts to rule out inconsistencies between the applicant’s specific testimony and the police allegations. Rather, it can be assumed that after the trial they decided to give preference to the version of the police.
However, the Hungarian authorities did not take into account the attendant circumstances, in particular the fact that the applicant’s alleged consent was given while he was under the influence of alcohol and under the control of the police. However, given the applicant’s right to withdraw his initial consent at any time, as provided for in the Hungarian law, it should be noted that the applicant clearly resisted medical intervention, as evidenced by the fact that the police had to bind him in order to finish procedure. From a medical point of view, it was possible to interrupt the procedure after it began. Having regard to all the factors mentioned above, the Court was unable to conclude that during the whole procedure there was free and informed consent of the applicant to carry it out.
The contested procedure was carried out on the basis of an order to obtain a sample of the applicant’s urine in order to establish whether he was involved in a traffic accident. Thus, her goal was to obtain real evidence from the applicant’s body, and not to respond to a potential medical need. Given the intrusive nature of the procedure, the applicant's case must be distinguished from situations in which the interference was considered to be of little importance. Moreover, despite the fact that the procedure was carried out by a doctor in the emergency department, the applicant was detained by the police and he remained handcuffed during the entire procedure, which was applied to him forcibly.
The Court found that the police considered it necessary to determine the level of alcohol in the applicant’s blood and to establish whether he was under the influence of drugs because he was a driver of the vehicle. However, the use of a catheter was not necessary in light of the fact that police officers could also receive a blood sample for the same purpose. In addition, the use of a catheter was not a universally recognized and applicable measure in the context of the current practice in the country, and, unlike a blood test, there was no clear position regarding the usefulness of this measure in obtaining evidence of drug-related offenses. In medical practice in Hungary, there was disagreement as to whether such an intervention should be considered invasive. Taking into account the contradictions in the approaches that existed at the domestic level, it could not be determined with certainty that such an intervention could not lead to a risk to the applicant’s health.
The authorities allowed serious interference with the applicant’s physical and moral integrity against his will. The method of implementing the contested measure could lead to the applicant's feelings of insecurity, anxiety and stress, which could humiliate him. Moreover, the case file did not contain documents that would enable the Court to conclude that the police officers had somehow taken into account the risk that the procedure might have had for the applicant. Although this intention was not established, the contested procedure was carried out in such a way that it inflicted physical pain and mental suffering on the applicant.
In the case there was a violation of the requirements of Article 3 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The Court awarded the applicant EUR 9,000 in respect of non-pecuniary damage.