1. REASONS FOR PARTIALLY DISSENTING OPINION OF JUDGE
Although I join with my colleagues in Sections 1 through 5.4 of the Decision, I
respectfully disagree with the Majority on their interpretation of the nature and scope of the
exception contained in Article 15 of the Convention Against Torture as explained in Section
5.5 of the Majority opinion.
I first examine where, in my view, the reasoning of the Majority is not convincing. I
then put forward my own interpretation of Article 15 based on the ordinary meaning of the
terms of the provision in their context and in the light of the objective and purpose of the
Convention. Additionally I discuss how permissible subsidiary means of interpretation
referenced by the Vienna Convention on the Law of Treaties support my interpretation.
1.1. Reasoning of the Majority Opinion
Article 15 of the CAT provides that any statement which is established to have been
made as a result of torture shall not be invoked as evidence in any proceedings except against
a person accused of torture as evidence that the statement was made. In the Majority
Opinion, this provision morphs via interpretation into the following rule: Any statement that
has been established to have been made as a result of torture shall not be invoked as evidence
in any proceedings except against the person accused of torture for purposes other than
proving the truth of the matter asserted in the statement.
In its reasoning, though not the disposition of the Decision, the Majority appears to
foresee further qualification of this purpose in individual cases (e.g. when it finds that "The
Chamber considers that information contained within tortured tainted statements may be used
to establish facts other than the truth of the statement, but only for the purposes of
determining what action resulted based on the fact that a statement was made.,,)l I will come
to this later.
A comparison of the original language of Article 15 and the relevant language used in
the disposition of the Decision shows that, simply put, the exception has been changed from
allowing the use of a statement obtained by torture for one purpose to allowing the use of
Majority Opinion, para. 75.
Reasons for Partially Dissenting Opinion of Judge Fenz - Public - 11 March 2016