01213194 E350/S.1 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 3

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