01213196 E350/S.1 including during a state of emergency, except if a statement or confession obtained in violation of Article 7 is used as evidence that torture or treatment prohibited by this provision occurred. " 18. Equally compelling is the drafting history of Article 15. The Working Group's first draft of Article 15 did not provide for any permissible uses of torture-tainted evidence. During the drafting of the Convention, language was added to maximize the deterrent effect of the Article by allowing statements to be used in a narrow fashion to prosecute the alleged torturer. 17 To the contrary, an attempt to allow the unlimited use of statements obtained by torture against the alleged torturer was eventually rejected. IS In summary, the drafting history shows that the current text is the result of careful deliberations. 19 19. The resulting language and the purpose ofthe exception to Article 15 has been explained by one author involved in the drafting of the Convention as follows: "However, when the statement is invoked in such a manner, the intention is not to prove that the statement is a true statement. The purpose is rather to prove that a specific statement was made under torture and presumably that the tortured person would not otherwise have made the same statement, because it was untrue or because it disclosed certain information which he would not otherwise have been prepared to disclose. Consequently, the exception is more apparent than real.,,20 20. In my opinion, it is clear that the purpose of the "exception" is not to establish a substantive exception to the rule but to prevent - by way of this clarification - an overly extensive interpretation of Article 15 which would indeed have bordered on absurd?1 17 An early draft of Article 15 proposed by Sweden did not include any exception; See UN Economic and Social Council, 34th session, 23 January 1978, UN Doc. E/eNA/1285. 18 See Draft Convention for the Prevention and Suppression of Torture, Submitted by the International Association of Penal Law, UN Doc. E/CNAINGO/213, 15 January 1978 ("An oral or written statement or confession obtained by means of torture or any other evidence derived therefrom shall have no legal effect whatever and shall not be invoked in any judicial or administrative proceedings, except against a person accused of obtaining it by torture.") 19 UN Doc. E/CNAI1314, UN Economic and Social Council, 35 th session, 19 December 1978; UN Doc. 3452 (XXX), UN General Assembly Resolution - Declaration on the protection of all persons from being subjected to torture and other cruel inhuman or degrading treatment, 9 December 1975. 20 Herman Burgers and Hans Danelius, The United Nations Convention against Torture - A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Dordrecht: Martinus Nijhoff, 1988), p. 148 (emphasis added). Read in context, it is clear that the author's remark did not aim to identify the only forbidden use but mentioned one and arguably the most frequently occurring one to make the principled point as evidenced by the bold section. 21 Vienna Convention, Article 32. Reasons for Partially Dissenting Opinion of Judge Fenz - Public - 11 March 2016 5

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