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the deterrent objective of the Convention)7 and would prevent a full assessment of the alleged
conduct. s But this is not unusual. In some instances (evidentiary) rules are created that
effectively risk "benefiting the Accused" by making prosecution more difficult. 9 This result is
accepted as an unavoidable (though not necessarily intended) consequence after balancing
various issues, values and principles at stake.
10. I note that the Majority when applying the exclusionary rule to at least one individual
case sees the need to further qualify it.lO They deal with this issue in the fair trial section of
the reasoning. The rationale behind this further qualification remains unexplained. It is not
immediately obvious why in the example discussed in this context, the evidence should only
be allowed to prove this specific pattern as opposed to other issues unrelated to the
truthfulness of the statement.
II. I take from this example that the Majority generally foresees case-related adaptations of
the general principle, as stated by them in the dispositive, taking the form of further
qualifications of the purpose. This approach is problematic. 11 Such case-related further
qualifications of the purpose are bound to lead to a highly-fragmented and potentially
inconsistent body of jurisprudence - an outcome which is not conducive to the deterrent
purpose of the Convention because the general message sent becomes ambiguous.
1.2. Reasoning of the dissenting opinion:
12. I now set forth how I consider Article 15 should be interpreted based on the ordinary
meaning of the terms of the provision in their context and in the light of its objective and
purpose. I will further reference subsidiary means that support this interpretation. I2
13. In my opinion, Article 15 aims to prevent that torture-tainted statements are used as
sources of information - that is as evidence - for the courts. This prohibition is absolute.
Majority Opinion, para. 74.
Majority Opinion, para. 76.
For example, the exclusionary rule in common law jurisdictions may prevent the prosecutor from adducing
evidence supporting the charges because the evidence was obtained through an illegal search. See e.g.. Mapp v.
Ohio, U.S. Supreme Court, 367 U.S. 643 (1961). This exclusionary rule has the effect of making the prosecution
more difficult.
IO
See Majority Opinion, para. 75, "[ ... ] but only for the purposes of determining what action resulted based on
the fact that a statement was made."
11 The problem of fragmented jurisprudence is already inherent in the general interpretation of Article 15 as
described in the dispositive ("[ ... ] for purposes other than proving the truth of the matter asserted in the
statement."
12
Vienna Convention on the Law of Treaties, Articles 31 & 32.
Reasons for Partially Dissenting Opinion of Judge Fenz - Public - 11 March 2016
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