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E350/S.1

such statement for all purposes but one (i.e. to establish its truth). This is a significant
difference and, in itself, a first indication that the interpretation is problematic. It is also
surprising because the Majority concedes that the plain language of the exception indicates
that it should be read narrowly.2
6.

The Majority arrives at this interpretation by identifying an ambiguity in the language of

the exception to Article 15 by alleging that it does not clarify "how a statement may be used
and for what purpose(s).,,3 It then claims to solve this alleged ambiguity by teleological
interpretation of the whole of Article 15 (i.e. by reference to the "purposes of Article IS") and
reference to the drafting history.4 The Majority then states that generally "the permissible
scope of invoking torture-tainted evidence must be determined in line with the general
purpose of Article 15.,,5 This language indicates legislating not interpreting.
7.

Consequently, paragraphs 73-77 of the Majority appear less concerned with the

interpretation of the original exception, but with establishing that the Majority's
"interpretation" of it does not run counter to (some of) the major purposes of Article 15. Even
if this were considered proved, the only thing established is exactly that - the Majority's
exception to Article 15 does not violate the purposes of the Convention. What it does not
prove is that this exception was the one intended by the drafters of the Convention.
Legislators always have a variety of options when it comes to regulating a certain matter
legally. In the end, after balancing relevant concerns, principles and issues, the legislative
body decides on one of these options (thereby ruling out the others). And the drafting history
shows that the drafters of the Convention have done exactly that.
8.

In my view, the Majority, has effectively created their own alternative exception which

might, standing on its own, be defensible when measured against the purposes of the
Convention but is simply not the one chosen by the legislator. 6
9.

A major concern is obviously that if the Majority were to adopt a more restrictive view,

the exception contained in Article 15 would benefit the alleged torturer (and thus go against

Majority Opinion, para. 72.
Majority Opinion, para. 72.
4
Majority Opinion, para. 72.
Majority Opinion, para. 73.
I doubt that the Majority's interpretation of Article 15 adequately safeguards the integrity of the proceedings
since permitting the use of the statement to establish facts (e.g. a pattern) effectively results in torture tainted
evidence permeating proceedings. Potentially lengthy discussions of torture tainted statements in public trial to
determine if they are eventually permissible according to the majority decision add to this problem.

2

Reasons for Partially Dissenting Opinion of Judge Fenz - Public - 11 March 2016

2

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