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(1994) 18 E.H.R.R. 213 PDF
(1994) 18 E.H.R.R. 213 PDF
~IJ 113
The Facts
I. The parricltlar circl/lIlsfallces of lite Cllse
European
(bl In early January 1981. Dombo was offered the opportunity to
Coun of take over two other limited liability companies. T and D. which had run
Human
Right;; into financial difficulties. To finance these takeovers. Dombo required
another extension of the credit limit: this was discussed between Mr
van Reijendam and Mr van W. Following these discussions the Bank
made Dombo an offer in writing dated n January 1981 to raise the
maximum credit to 5.000.000 Netherlands guilders. In anticipation of
this extension. the bank paid out 350.000 Netherlands guilders in
connection with the takeover of T and 0 and subsequently agreed to a
withdrawal by Mr van Reijendam of another 100.000 Netherlands
guilders for the same purpose. l\Ir van W required security for these
sums in the form of a mortgage and made Mr van Reijendam sign a
blank power of attorney. The Bank made uSe of that document to have
a deed drawn up by a notary mortgaging all immovable property
belonging to Dombo. its subsidiaries and Mr van Reijendam
personally. This mortgage was surety for a credit of 1.600.000
Netherlands guilders. i.e. it further secured the extension of the credit
referred to in sub-paragraph (a) above.
(c) On 28 January 1981 the Bank. through Mr van W. unexpectedly
and inexplicably withdrew its confidence in Mr van ReiJendam. called
on him to resign and froze all Dombo's accounts without warning. this
in spite of the fact that its total debit balance was then 783,436·06
Netherlands guilders and therefore well within the agreed limit of
2.100.000 Netherlands guilders.
11. The Bank's rendering of the facts may be summarised as follows.
(a) The Bank acknowledged that Dombo had asked for a higher
credit limit in connection with the takeover of the commercial
activities of the company O. It had agreed in principle but had required
certain additional information to be provided by Dombo. including its
annual statement for the previous year~: these had never been received
and an agreement to raise the existing credit facilities as claimed by
Dombo had therefore never been reached. However. in connection
with the takeover of the activities of the 0 company (which it approved
of in principle) and the urgent need for funds. the Bank had been
prepared to enable Dombo to act in anticipation of the extension of the
credit facilities by providing letters of credit on a number of occasions.
Mr van Reijendam had been asked to stand surety for these himself to
the amount of 350.000 Netherlands guilders. By the end of January
1981 the sum for which the Bank had bound itself amounted to 848,000
Netherlands guilders. The Bank pointed out that there was a
, 1979.
18 E.H.R.R. ~lJ
199.1 Dombo every opportunity to reduce its debt; when it became clear that
DOII/bo
Mr van Reijendam was not prepared to do so. it had annulled the credit
Bchcer B \' agreement with effect from 30 October 1981. Only then had it frozen
\ .
The the accounts.
,\'echerlallds
1993 had been several discussions, in which this witness had taken part,
Dombo about the amount to which the credit was to be extended.
Beheer B.\·. 17. In the exercise of its right to have its own witnesses heard in reply
v.
The
(conrra-eflqllere), the Bank called two of its employees, one of whom
.Velherlulldf was the manager of its Nijmegen branch office, Mr van W .
European
Dombo objected to the hearing of Mr van W, stating the view that all
Court of stages of the credit relationship, and also in the instant proceedings, he
Human
Rights had been and remained the formal representative of the Bank: to hear
him as a witness at this point, when Mr van Reijendam had not been so
heard, would upset the fair balance that should exist between parties in
civil proceedings.
18. By a decision delivered orally on 13 March 1985, Judge Van E
dismissed Dombo's objection. He considered first and foremost that
Mr van W was a competent witness in the instant case since he was not
a party to the proceedings either formally or in fact and went on to state
that it could not follow from the fact that Dombo was put at a
disad"antage because Mr van Reijendam was not heard as a witness
while Mr van W was so heard that Mr van W was no longer a competent
witness.
The Court of Appeal judge proceeded to hear the Bank's witnesses
immediately.
After the witnesses had been examined, both parties submitted
extensive written pleadings in which they analysed the witnesses'
statements. Dombo submitted a large number of additional
documents. including written statements by persons not heard as
witnesses: the Bank also submitted further documents. Dombo then
submitted pleadings in response to those of the Bank.
19. The Court of Appeal delivered its final judgment on 11 March
1986. It first examined the witnesses' statements in detail. As far as the
statements of the witness Mr C. U. were concerned,~ it observed that
these contradicted each other on a significant point. namely the figure
to which it had been agreed to extend the credit facility, and added that
this discrepancy, for which no explanation had been given, adversely
affected the convincingness of the statements of this witness. The
Court of Appeal then examined a number of written depositions
submitted by Dombo. Two of these were rejected because they were
not signed. With regard to a deposition signed by Mr van Reijendam,
the Court attributed the same value to it as to a statement made by
Dombo itself.
The Court of Appeal went on to hold:
The Court of Appeal is of the opinion that the evidence required from
Dombo has not been provided. The statements of the witnesses [D. Hand
0] are not definite enough for this purpose and the statement of [e. U.]
and the notarial statement made by lSI-whose experience. as
considered. dates only from after 11 I\-Iay 1981-are contradicted by those
of the witnesses [Van Wand K]. The fact that no written evidence is
,. S..:..: para. 16 abov..:.
Ix E.H.R.R. ~IJ
The Court of Appeal further held that since the agreement had not
been proved, it was not necessary to examine the question whether the
Bank had in fact frozen Dombo's accounts in breach of it and it went on
to dismiss Dombo's claim,
20. In June 1986 Dombo filed an appeal on points of law (Cl15sacie) to
the Supreme Court (Hoge Rami). Paragraph:2 of its (quite extensive)
statement of grounds of appeal (middell'an cassacie) was particularly
directed against Judge Van E's decisions to uphold the objections to
hearing Mr van Reijendam as a witness for Dombo and reject those
against hearing Mr van W as a witness for the Bank. This paragraph
argued. illler alia:
::!3. Prior to the entry into force of the new rules of evidence in civil
cases on I April 1988' evidence in civil procedure was governed by the
Civil Code (BlIrger/i/k Welboek) and the Code of Civil Procedure
(Welboek l'lIll BlIrgerlijke Rechtsl'Orderillg). both of which dated from
183X and were largely based on the corresponding French Codes.
The former law. which applied at the time of the proCeedings in
issue. does not lay down in so many words that a person was not
allowed to testify in a case to which he was a party. It was nevertheless
generally accepted that. in the words of the Supreme Court. 'one of the
principles of the Netherlands law of civil proCedure is that a person
(i) One party might call upon the other to confirm on oath the
truth of a certain disputed fact. If the other party took the
oath, then proof to the contrary was no longer admissible; if
he refused, then the contrary statement was accepted as the
truth. This was the 'decisive oath' (beslisscndc ced).I"
(ii) The court also had the possibility of ordering, of its own
motion or at the request of a party, that one or other of the
parties should take the 'supplementary oath' (alllll'ltllelldc
ccd). It could impose such an oath on the party which was, in
its view the most appropriate for the purpose, provided that
the statements to which the oath was to relate were neither
proved nor entirely unsubstantiated. II
B. Legal persollS
Opilllon
Opinion
8. Poilll at issue
:, No loJoJ-I88K
., Made under Ari. 31.
• The paragraph numbenng irom here to para. oJ 1 in bnld is the ongmal numbering oi
th~ Commission's Opinion. Then \\e rever! to the numbering oi the COUrl'S
Judgment.-Ed.
I~ E.H.R.R. ~IJ
33. The Government further contends that. even if the applicant 1993
company's former director would have been able to testify. the DOlllbo
outcome of the proceedings would not have been altered as the Reheer B \'.
applicant company did not have sufficient evidence to prO\e its claim ".
The
concerning the overdraft contract. ,\'erherlilllds
34. The Commission recalls that the Convention does not explicitly European
secure the right to ha\e witnesses called in civil proceedings. That right Commission
is secured. under Article 6(.3)(d). only to persons charged with criminal ofRights
Human
offences. That does not mean. however. that the citing and questioning
of witnesses in ci\'il cases is not covered bv Article 6( 1) of the Opilll()11
Convention.') In order to determine whether' Article 6(1) has been
complied with in the present case. the Commission must examine the
proceedings as a whole. in particular since the principle of 'equality of
arms' is only one feature of the wider concept of a fair triaL"
35. Article 6( l) of the Convention. while implying that each party
shall have a reasonable opportunity of presenting his case to the Court
under conditions which do not place him at a substantial disadvantage
l'iS-ll-~'is his opponent. does not lay down rules as to the evidence as
such. and in particular as to its admissibility and probative \'alue. these
questions bemg essentially dependent on domestic legislation."
36. The Commission has therefore examined whether. in the present
case. the applicant company was placed at a substantial disadvantage
~'is-tl-vis its opponent and. if so. whether this affected the equality of
arms in such a way as to render the proceedings as a whole unfair in the
sense of Article 6( 1 ).
37. It here notes that only one of the two persons who had allegedly
negotiated the O\erdraft facilities. namely the bank manager. was
heard as a \\itness. pursuant to the Dutch law in force at the relevant
time.
38. It is undisputed between the parties that. at the relevant time. no
possibility existed under Dutch law to hear the former director of the
applicant company as a witness or for him to give e\idence in any other
way.
39. It is true that he could have been asked by the court. in
accordance with Article 19a of the Code of Civil Procedure. to give
information and that. under Article 20 of the Code of Civil Procedure.
he could also have made an oral statement to the court supplementing
that of the company's lawyer. However. any such declaration would
not have been made in circumstances comparable to those in which the
bank's employee was heard and it would not have constituted evidence
under Dutch procedural rules. It can therefore be assumed that it
would ha\'e carried less weight than the evidence given by the bank's
employee as a witness under oath and that the applicant company
:' No. 9938 82. Dec. 15. 7 .86. D.R. -It! pp. ~l. 32.
" See. e.g. No 1295~ R7. Comm. Rep. 1-1.1.92. F.'~IIL' RI.'IZ-~I.' TEOS I SP "N. para. 91.
:' No. ~-I50 ~6. Dec. 2S.2.:7. D.R. 9. p. 110.
EUROPEAN HUr>.IAN RIGHTS REPORTS
JUDGMENT
I. Article 6( II
30. The applicant company complained about the refusal by the
national courts to allow its former managing director. Mr van
'" Para. 21
18 E.H.R.R. ~13 229
This \'iew was subscribed to by the Commission but contested by the llldgmc/ll
Go\,ernment.
31. The Court notes at the outset that it is not called upon to rule in
general whether it is permissible to exclude the e\'idence of a person in
civil proceedings to which he is a party.
Nor is it called upon to examine the Netherlands law of evidence in
ci\'il procedure ill abSlracco. The applicant company does not claim
that the law itself was in violation of the Convention: besides, the law
under which the decisions complained of were gi\'en has since been
replaced. In any event. the competence of witnesses is primarily
governed by nationallaw.~'
It is not within the province of the Court to substitute its own
assessment of the facts for that of the national courts. The Court's task
is to ascertain whether the proceedings in their entirety, including the
way in which evidence was permitted, were 'fair' within the meaning of
Article 6(1 ).~k
32. The requirements inherent in the concept of 'fair hearing' are not
necessarily the same in cases concerning the determination of civil
rights and obligations as they are in cases concerning the
determination of a criminal charge. This is borne out by the absence of
detailed prm'isions such as paragraphs 2 and 3 of Article 6 applying to
cases of the former category. Thus. although these provisions have a
certain relevance outside the strict confines of criminal law,~" the
Contracting States have greater latitude when dealing with civil cases
concerning civil rights and obligations than they have when dealing
with criminal cases.
33. Nevertheless, certain principles concerning the notion of a 'fair
hearing' in cases concerning ci\il rights and obligations emerge from
the Court's case law. Most significantly for the present case, it is clear
that the requirement of 'equality of arms: in the sense of a 'fair
balance' between the parties, applies in principle to such cases as well
as to criminal cases,'"
"See. as recent authorities and mil/aIlS //IlI/andis. LUDI 1'. ;;\\,ITZERL.~ND (A 2381:
(19921 15 E.H.RR. 173. para. -13. and SCHL'LER-Zc,R.~G(JEN \'. ;;\\ ITZERL\ND (A:263)'
(1993) 10 E.H.R.R -t05. para. 00.
"See. IIlIer alta and till/la/IS /llll/lIlIdIS. the judgment;; referred to above. lac. CI/.
,.. See. 1Il/I/ll/is 1II1II1I1IdlS. \LBERT \"D LE COMPTE \'. BELc,IU~1 t AS81: (198315 E.H.R.R.
533. para. 39.
,,, See FELDBRL'C.c,E 1'. THE NETHERUNDS (AI99): (1986) 8 E.H.RR -t~5, para. -t4
~3u ELIROPEAN HUt\I.-\N RIGHTS REPORTS
European
It is left to the national authorities to ensure in each individual case
Court oi that the requirements of a 'fair hearing' are met.
Human 3-L In the instant case. it was incumbent upon the applicant company
Rights
to prove that there was an oral agreement between it and the Bank to
11/dg/ll,,111
extend certain credit facilities. Only two persons had been present as
the meeting at which this agreement had allegedly been reached,
namely Mr van Reijendam representing the applicant company and
I\-Ir van \V representing the Bank, Yet only one of these two key
persons was permitted to be heard, namely the person who had
represented the Bank, The applicant company was denied the
possibility of calling the person who had represented it. because the
Court of Appeal identified him with the applicant company itself.
35. During the relevant negotiations. Mr van Reijendam and Mr van
V\.' acted on an equal footing. both being empowered to negotiate on
behalf of their respective parties, It is therefore difficult to see why they
should not both have been allowed to gi\'e evidence.
The applicant company was thus placed at a substantial
disadvantage I'is-a-vis the Bank and there has accordingly been a
violation of Article 6( 1 ).
II. Article 50
1993 assumption that the applicant company would have won its case if Mr
Dombo
van Reijendam had been heard.'1 This claim must therefore be
Bl'ileer B ~'. dismissed for the same reasons.
v.
The
43. As for costs and expenses incurred in the proceedings before the
,\'I'fileriallds Strasbourg institutions. the Court considers it reasonable. making an
European
assessment on an equitable basis. to award the applicant company
Court of -l0.000 Netherlands guilders under this head less 16.185 FF paid in legal
Human
Rights
aid.
However. the Court does not consider it appropriate to require the
DiHt'lIfl1lg
OPl1liOIl
payment of interest as the applicant company requested.
(Judge
~farten,.
Judge Pettiti I
For these reasons. THE COURT
1. There are two reasons why I find myself unable to agree with the
Court's judgment.
\Vhat Dombo is complaining of is the application by the Netherlands
courts of a rule under the domestic law of evidence in civil proceedings
whereby 'a person who is formally or substantively a party to litigation
cannot be heard as a witness in his own case .')~
In my opinion. (A) this rule is not as such incompatible with the
Convention. in particular with the concept of fair trial. and (B) neither
does its application in concreto violate the principle of equality of arms.
'" See para. olD above.
'" As to this rule. see para. 13 of the Court·sjudgment.
18 E.H.R.R. 213 233
A. IY93
Domho
2. The Court starts its reasoning by noting that it 'is not called upon Beheer B. I'.
to rule in general whether it is permissible to exclude the evidence of a \ .
person in civil proceedings to which he is a party"·1 and it therefore The
,Vaha/al/ds
declines to examine ill abstracto whether the above rule of the
European
Netherlands law of evidence in civil proceedings is compatible with the Court of
Convention, However, the Court could not avoid addressing these Human
Rights
questions. because the Netherlands courts' refusal to hear !\Ir van
Reijendam's testimony was the inevitable result of applying the DlSsenrillr,:
Opll/IOII'
relevant rule of evidence,)· (Judge
The Court restricts itself to ascertaining whether the proceedings ~lartens.
Judge Pelliti,
between Dombo and the Bank 'in their entirety, including the way in
which evidence was permitted, were "fair" within the meaning of
Article 6(1).' Its decisive argument for answering this question in the
negative is that
since 'during the relevant negotiations I\lr van Reijendam and Mr van \\'
acted on an equal footing, both being empowered to negotiate on behalf
of their respective parties. [iJt is ... difficult to see why they should not
both have been allowed to give evidence.'"
violated. This means that the Court does not condemn the rule's
application ill cOllcreto but the rule itself.
Domb"
Bcheer B. \'. 3. I very much doubt. however. whether (hat condemnation is
v.
Tire
justified. The rule that a person who is a party to civil proceedings
,velherltlllds cannot be heard as a witness in his own case is evidently based on the
European
view that such testimony is intrinsically untrustworthy. Moreover, it
Court of apparently dates from an era when the oath to be sworn by witnesses
Human was seen as having so great a (religious) significance that it was deemed
Rrghl5
imperative to protect a party to civil litigation from perjury and the
D/Ssclllm~
Opinioll'
other party from the possibility that the judge might feel compelled to
(Judge give credit to the declarations of his opponent because they were made
~larten5.
Judge Pellili I
under oath. For a long time the rule that Ilemo ill propria causa testis
esse debet was generally accepted and formed part of the law of
evidence in civil procedure in all European States. P Since the second
half of the last century it has been set aside in a number of countries.'"
Considerations of procedural expediency may no doubt be advanced
to justify such a reform, but the rule still applies in a good number of
European States-such as Belgium. France, Italy. Switzerland. Spain
and Turkey-which apparently prefer to maintain the traditional
distrust of allowing a litigant to testify in his own case.
Against this background I think that it is \ery difficult to condemn
the rule as being incompatible with the basic principles of fair
procedure. In any event one should not do so without taking into
account the other opportunities afforded by the national law of
evidence for hearing a party to civil proceedings in person and without
any argument other than that it is 'difficult to see why' a party should
not be allowed to give evidence on his own behalf.
8.
.t. As I have already noted, the Court sets out to determine whether
the proceedings between Dombo and the Bank 'in their entirety.
including the way in which evidence was permitted, were "fair" within
the meaning of Article 6( 1).' The Court then suggests that among the
'principles concerning the notion of a "fair hearing" in cases
concerning civil rights and obligations' 'the requirement of "equality of
arms'" is the most significant one as regards the present case. The
Court goes on to say that in such proceedings 'equality of arms' implies
'that each party must be afforded a reasonable opportunity to present
his case-including his evidence-under conditions that do not place
him at a substantial disadvantage l'is-d-l'is his opponent.'
The latter choice of words is not particularly fortunate. since it might
be understood as indicating that the concept of 'equality of arms' has
substantive implications, in that it should also entail adapting
" See H. Nagel. Ole Grwrd:lIge des BI.'II·clsrec!IIS 1111 ellroplllschell Zit ilpro~eH
I Baden·Baden t%71. pp. 86<,[ seq
"See Nagel. op. Cll.. and in Fo[schnri ti[r \\"allher J. Hllbscheid (1989). pp. 195 elseq.
II'< E.H.R.R. ~1.l