01213192 E350/S.1 1. REASONS FOR PARTIALLY DISSENTING OPINION OF JUDGE FENZ 1. Although I join with my colleagues in Sections 1 through 5.4 of the Decision, I respectfully disagree with the Majority on their interpretation of the nature and scope of the exception contained in Article 15 of the Convention Against Torture as explained in Section 5.5 of the Majority opinion. 2. I first examine where, in my view, the reasoning of the Majority is not convincing. I then put forward my own interpretation of Article 15 based on the ordinary meaning of the terms of the provision in their context and in the light of the objective and purpose of the Convention. Additionally I discuss how permissible subsidiary means of interpretation referenced by the Vienna Convention on the Law of Treaties support my interpretation. 1.1. Reasoning of the Majority Opinion 3. Article 15 of the CAT provides that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings except against a person accused of torture as evidence that the statement was made. In the Majority Opinion, this provision morphs via interpretation into the following rule: Any statement that has been established to have been made as a result of torture shall not be invoked as evidence in any proceedings except against the person accused of torture for purposes other than proving the truth of the matter asserted in the statement. 4. In its reasoning, though not the disposition of the Decision, the Majority appears to foresee further qualification of this purpose in individual cases (e.g. when it finds that "The Chamber considers that information contained within tortured tainted statements may be used to establish facts other than the truth of the statement, but only for the purposes of determining what action resulted based on the fact that a statement was made.,,)l I will come to this later. 5. A comparison of the original language of Article 15 and the relevant language used in the disposition of the Decision shows that, simply put, the exception has been changed from allowing the use of a statement obtained by torture for one purpose to allowing the use of Majority Opinion, para. 75. Reasons for Partially Dissenting Opinion of Judge Fenz - Public - 11 March 2016

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