A woman who was made to search her own excrement for suspected drugs has succeeded in overturning a judgment that had declared such procedure as not tantamount to inhuman and degrading treatment.

Jennifer Koster had filed proceedings against the police commissioner and the State Advocate over the “embarrassing” and undignified manner whereby she had been made to search through her own excrement, having to make do with a plastic apron instead of proper gloves, while still dirty and undressed. 

The incident dates back to 2015 when the Dutch woman and her Maltese partner, a suspected drug trafficker, were stopped by the police at Mrieħel, shortly after she had travelled to Malta.

Police claimed to have been acting under a reasonable suspicion that the woman was acting as a drug mule, ferrying drugs into Malta for her partner. 

The woman had denied such claims and had personally insisted on undergoing medical checks showing that she was not carrying any drugs inside her body, proving her innocence. 

Once at Mater Dei hospital she was x-rayed. 

A first doctor had voiced doubt over certain “suspicious shadows” that showed up on that x-ray.

Although a second doctor dispelled those suspicions, the woman was administered a laxative in her coffee and then made to search her excrement for the suspected drugs. 

She was eventually released and was never interrogated by the police. 

However, she subsequently filed an action claiming that her rights had been breached because she had been subjected to arbitrary arrest as well as inhuman and degrading treatment.

In January, the First Hall, Civil Court, in its constitutional jurisdiction, had rejected those claims, prompting the woman to file an appeal. 

When delivering judgment on Wednesday, the Constitutional Court concluded that, in light of all circumstances, the police ought to have made the whole procedure less embarrassing for the woman, ensuring that it was handled in as dignified a manner as possible. 

In the first place, the decision to go for more invasive checks should have been taken once a further medical opinion had been sought on the x-ray results.

The appellate court also did not share the view of the first court that any shortcomings in the handling of such checks were attributable to hospital authorities rather than the police. 

The Constitutional Court observed that, at the time, the woman had been under police custody and it was the duty of the police to ensure that such procedure was carried out in as dignified a manner as possible.

That also meant ensuring that appropriate gloves were available, the court said.

The police had sufficient time to ensure that the ensuing search by the woman could be handled in a hygienic manner, rather than having to make do with a plastic apron as a substitute for gloves.

Moreover, the court was “perplexed” by the fact that the woman was not even allowed to clean herself and get dressed before proceeding with the search.

When all was considered, the situation was judged as amounting to inhuman and degrading treatment and the appellant was awarded €1,000 in moral damages, taking note of the fact that she had consented to the checks after requesting them herself to prove her innocence.

While rejecting her other claim regarding her alleged arbitrary arrest, the court observed that the first court had failed to take note of a legal provision which made it obligatory for the police to present a suspect with a letter of rights upon arrest. 

Mere verbal information was not enough, said the court.

Yet, in light of all circumstances, her arrest was not deemed illegal by the court, presided over by Chief Justice Mark Chetcuti and Mr Justices Giannino Caruana Demajo and Anthony Ellul. 

The suspect had been verbally granted her rights and had consented to the medical examination saying that she wanted to prove her innocence. Moreover, she was later released from arrest without being interrogated by the police.

Lawyers Franco Debono, Marion Camilleri and Amadeus Cachia assisted the woman.