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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
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