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14. Article 15 covers any reference to, and any use of, torture-tainted statements when it
chooses the word "invoke" to describe the prohibited action. The lack of any qualification of
the term clarifies that "invoking the statement as evidence" is generally prohibited regardless
of the purpose for which it is put forward. Article 15 appears to allow for one "exception"
when it states that evidence obtained as a result of torture may be used "against a person
accused of torture as evidence that the statement was made". \3 I agree with the Majority that
the plain language of this provision suggests that it should be interpreted narrowly. In my
opinion, however, it is limited to one specific category of persons and one specific use.
15. The language is clear on both: the category of persons - those accused of torture - and
the use (purpose) - as evidence that the statement was made. Simply put, the only permissible
use is to prove the existence of such statement (and arguably that it was made under torture).
The statement can be important evidence to prove that torture occurred. The exception goes to
the existence not in any way to the substance of the statement. I believe that the interpretation
of the ordinary meaning to be given to the terms of the provision in their context and in the
light of their purpose leads to this clear result which is neither ambiguous nor manifestly
absurd or unreasonable. 14
16. Reference to subsidiary means supports this reading. It is in this context instructive and
relevant that the Inter-American Convention to Prevent and Punish Torture, adopted one year
after the CAT, interpreted the exclusionary rule to be limited in this same fashion. 15 Article 10
of that Inter-American Convention provides: "No statement that is verified as having been
obtained through torture shall be admissible as evidence in a legal proceeding, except in a
legal action taken against a person or persons accused of having elicited it through acts of
torture, and only as evidence that the accused obtained such statement by such means.,,16
17. Furthermore, the UN Human Rights Committee states in its authoritative General
Comment on the right to equality before courts and tribunals and to a fair trial under the
ICCPR (to which Cambodia is party), "[ ... J as Article 7 (lCCPR) is also non-derogable in its
entirety, no statements or confessions or, in principle, other evidence obtained in violation of
this provision may be invoked as evidence in any proceedings covered by Article 14,
J3
Case of Othman (Abu Qatada) v. The United Kingdom (Application No. 8139/09), 17 January 2012, para.
266 ("Indeed, the only exception to the prohibition that Article 15 allows is in proceedings against a person
accused of torture.").
14
Vienna Convention on the Law of Treaties, Arts. 31 & 32.
15
Vienna Convention on the Law of Treaties, Art. 31(3).
16
Inter-American Convention To Prevent and Punish Torture, Article 10, 1986 (emphasis added).
Reasons for Partially Dissenting Opinion of Judge Fenz - Public -11 March 2016
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