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You are here: BAILII >> Databases >> European Court of Human Rights >> DOMBO BEHEER B.V. v. THE NETHERLANDS - 14448/88 [1993] ECHR 49 (27 October 1993)
URL: http://www.bailii.org/eu/cases/ECHR/1993/49.html
Cite as: [1993] ECHR 49, 18 EHRR 213, (1994) 18 EHRR 213
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In the case of Dombo Beheer B.V. v. the Netherlands*,
The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention")** and the relevant provisions of the Rules of Court,
as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr S.K. Martens,
Mr I. Foighel,
Mr R. Pekkanen,
Mr M.A. Lopes Rocha,
Mr G. Mifsud Bonnici,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 23 April and
22 September 1993,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 37/1992/382/460. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since
its creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 26 October 1992,
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated
in an application (no. 14448/88) against the Kingdom of the
Netherlands lodged with the Commission under Article 25 (art. 25)
on 15 August 1988 by a limited liability company possessing legal
personality under Netherlands law (besloten vennootschap),
Dombo Beheer B.V.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the Netherlands
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision
as to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Article 6 para. 1
(art. 6-1).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant company
stated that it wished to take part in the proceedings and
designated the lawyer who would represent it (Rule 30). On
1 March 1993 the President gave him leave to use the Dutch
language (Rule 27 para. 3).
3. The Chamber to be constituted included ex officio
Mr S.K. Martens, the elected judge of Netherlands nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal,
the President of the Court (Rule 21 para. 3 (b)). On
30 October 1992, in the presence of the Registrar, the President
drew by lot the names of the other seven members, namely
Mr L.-E. Pettiti, Mr B. Walsh, Mr I. Foighel, Mr R. Pekkanen,
Mr M.A. Lopes Rocha, Mr G. Mifsud Bonnici and Mr B. Repik
(Article 43 in fine of the Convention and Rule 21 para. 4)
(art. 43). With effect from 1 January 1993 Mr R. Bernhardt,
substitute judge, replaced Mr Repik, whose term of office had
come to an end owing to the dissolution of the Czech and Slovak
Federal Republic (Articles 38 and 65 para. 3 of the Convention
and Rules 22 para. 1 and 24 para. 1) (art. 38, art. 65-3).
4. As President of the Chamber (Rule 21 para. 5),
Mr Ryssdal, acting through the Registrar, consulted the Agent of
the Netherlands Government ("the Government"), the applicant's
lawyer and the Delegate of the Commission on the organisation of
the proceedings (Rules 37 para. 1 and 38). Pursuant to the
orders made in consequence, the Registrar received the
applicant's memorial on 1 March 1993 and the Government's
memorial on 4 March 1993. The Secretary to the Commission
informed the Registrar that the Delegate would submit her
observations at the hearing.
5. On 1 March 1993 the Commission produced certain documents
from its file which the Registrar had sought from it at the
applicant company's request.
6. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg,
on 21 April 1993. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr K. de Vey Mestdagh, Ministry of Foreign Affairs, Agent,
Mr J.L. de Wijkerslooth de Weerdesteijn,
landsadvocaat,Counsel,
Mr P.A.M. Meijknecht, Ministry of Justice, Adviser;
(b) for the Commission
Mrs J. Liddy, Delegate;
(c) for the applicant
Mr D.W. Byvanck, advocaat en procureur, Counsel.
The Court heard addresses by Mr de Wijkerslooth de
Weerdesteijn for the Government, Mrs Liddy for the Commission and
Mr Byvanck for the applicant, and also replies to a question put
by one of its members.
AS TO THE FACTS
I. The particular circumstances of the case
7. The applicant (hereinafter "Dombo") is a limited
liability company under Netherlands law; it is the continuation
of a public limited company (naamloze vennootschap) originally
founded in 1958. It has its registered office in Nijmegen. At
the material time, its business included holding shares in
several other companies, for which it provided management; these
subsidiary companies engaged in commercial activities. The
shares in Dombo were held by a foundation (stichting) which
issued certificates of shares; these were apparently all held by
a Mr H.C. van Reijendam.
The company's management also included Mr van Reijendam;
he was the sole managing director from 1963 until his dismissal
(see paragraph 15 below), except for a short period between
4 February 1981 and 23 March 1981 during which he was suspended
as managing director and temporarily replaced by a Mr C.U. and
a Mrs van L.
8. At the material time, Dombo banked with the Nederlandsche
Middenstandsbank N.V. (hereinafter "the Bank") through its branch
office in Nijmegen. The manager of that office was a Mr van W.;
under the Bank's company statutes his position was not that of
managing director of the Bank itself and his powers to represent
the Bank, which included allowing credit up to a certain maximum,
were strictly circumscribed.
An agreement existed between Dombo and the Bank under
which Dombo and its subsidiaries enjoyed credit in current
account, i.e. the possibility of overdrawing on accounts held
with the Bank. In August 1980 this credit facility amounted to
500,000 Netherlands guilders (NLG), with an additional temporary
overdraft facility of up to NLG 250,000. This agreement had been
formalised in a written confirmation of an oral agreement to that
effect and in a contract dated 11 August 1980 under which the
Bank opened a joint account (compte-jointovereenkomst) in the
name of Dombo and its subsidiaries, who assumed responsibility
jointly and severally for meeting their obligations to the Bank.
9. A dispute arose between Dombo and the Bank concerning the
development of their financial relationship during the period
between December 1980 and February 1981. In the ensuing civil
proceedings both parties gave renderings of the facts which
differed materially on significant points.
10. Dombo's account may be summarised as follows.
(a) In early December 1980 the Bank, through the manager of
its Nijmegen branch, Mr van W., agreed orally to raise the
maximum of the credit available to Dombo by NLG 1,600,000 to a
total of NLG 2,100,000. As Mr van Reijendam had explained to
Mr van W., Dombo required this extension to take over the
commercial operations of a certain limited liability company, O.,
which had gone bankrupt; action was needed urgently. This oral
agreement was to be formalised later; at this point, however,
Mr van Reijendam did agree in writing to stand surety himself for
Dombo and its subsidiaries to the amount of NLG 350,000.
Following this alteration of the agreement of 11 August 1980
Dombo opened an account with the Bank earmarked for its
activities in connection with the O. takeover and the Bank
provided letters of credit on a number of occasions.
(b) In early January 1981 Dombo was offered the opportunity
to take over two other limited liability companies, T. and D.,
which had run 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 22 January 1981 to raise the maximum credit to
NLG 5,000,000. In anticipation of this extension, the Bank paid
out NLG 350,000 in connection with the takeover of T. and D. and
subsequently agreed to a withdrawal by Mr van Reijendam of
another NLG 100,000 for the same purpose. Mr 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 NLG 1,600,000, 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 NLG 783,436.06 and therefore well
within the agreed limit of NLG 2,100,000.
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 (1979);
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 O. 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 NLG 350,000. By the
end of January 1981 the sum for which the Bank had bound itself
amounted to NLG 848,000. The Bank pointed out that there was a
difference between a letter of credit and a credit under a
current account agreement; the former implied only occasional and
short-term risk, whereas the latter involved more permanent,
long-term risk.
(b) The Bank acknowledged also the second request for an
extension of the credit facilities for the takeover of the
companies T. and D. In this connection, Mr van Reijendam had
indicated that others would stand surety for at least
NLG 2,000,000. Relying on that statement, the Bank had written
to Dombo on 22 January 1981 that it agreed in principle to an
extension of the credit facilities to NLG 5,000,000, subject
however to certain conditions regarding annual statements and
securities. No annual statements had been forthcoming, nor any
securities either, and so the Bank had written to Dombo on
19 March 1981 withdrawing the offer.
The Bank acknowledged the transfer of NLG 350,000 but
denied having been aware of the purpose for which that sum was
intended. It claimed that Mr van Reijendam had misled it in this
regard. This also applied to the withdrawal of the NLG 100,000.
The Bank had referred to this deception in its letter of
19 March 1981 and stated that in consequence it would annul the
credit agreement (which it had nevertheless continued to honour)
if Mr van Reijendam were to take up his position as manager of
Dombo again (see sub-paragraph (c) below).
The Bank claimed that it had required the mortgages as
surety for the letters of credit referred to in sub-paragraph (a)
above and the withdrawal of the above-mentioned sums of
NLG 350,000 and 100,000. The mortgages had been established
under a power of attorney drawn up by a notary who - as the
document itself showed - had read it aloud before Mr van
Reijendam signed it. The Bank denied that there had been a blank
power of attorney.
(c) The Bank denied categorically that it had frozen Dombo's
accounts on 28 January 1981. In any case, withdrawals from these
accounts had by then exceeded the agreed maximum of NLG 750,000,
the balance being NLG 784,657.75 in debit. It had, however, made
it clear that it no longer had confidence in Mr van Reijendam
after the above-mentioned deception had come to light. The
Bank's doubts concerning his suitability to continue managing
Dombo were later confirmed when Mr van Reijendam was suspended
as managing director with effect from 4 February 1981 and shortly
afterwards committed to a mental institution under a court order.
During the period from 4 February 1981 until 23 March 1981 the
Bank continued its dealings with Dombo under different
management, consisting of Mr C.U. and Mrs van L. It continued
to allow credit to finance the activities taken over from
the O. company. After Mr van Reijendam's return the Bank had
allowed Dombo every opportunity to reduce its debt; when it
became clear that Mr van Reijendam was not prepared to do so, it
had annulled the credit agreement with effect from
30 October 1981. Only then had it frozen the accounts.
II. Proceedings in domestic courts
12. On 11 March 1983, pursuant to a court order which it had
obtained for that purpose, Dombo seized certain moneys which it
still owed to the Bank and summoned the Bank before the Arnhem
Regional Court (arrondissementsrechtbank), claiming financial
compensation for the damage caused by the Bank's alleged failure
to honour its commitments.
13. After extensive argument in writing - in which each party
presented written pleadings three times and produced a
considerable number of documents and Dombo offered to produce
witnesses (in particular the managing directors, Mr C.U. and
Mrs van L., who had temporarily replaced Mr van Reijendam, to
prove that there had been negotiations at that time to raise the
credit limit from NLG 2,100,000 to NLG 2,600,000) - the Regional
Court delivered an interlocutory judgment on 2 February 1984
allowing Dombo to call witnesses to prove, firstly, that the Bank
had frozen Dombo's accounts on 28 January 1981 and, secondly,
that the existing credit arrangements had been extended by
NLG 1,600,000 in December 1980. In addition, it ordered the
appearance in person (comparitie) before one of its judges of
representatives of Dombo and the Bank able to give information
and empowered to agree to a friendly settlement.
14. The Bank appealed against this interlocutory judgment to
the Arnhem Court of Appeal (gerechtshof), arguing that Dombo's
claim should have been dismissed out of hand. According to the
Bank, Dombo had abandoned the original basis of its claim, and
the basis which it had in the meanwhile adopted for it obviously
could not support it. Besides, Dombo had no interest in the
claim and the Regional Court's requirement of evidence was in any
case too vague and one-sided.
After both parties had submitted a written statement and
produced new documents and, through their lawyers, pleaded their
cases orally (Dombo repeating its offer to provide evidence), the
Court of Appeal, in a judgment of 8 January 1985, refused to
accept the Bank's arguments and confirmed the judgment of the
Regional Court.
At the request of both parties, the Court of Appeal did
not refer the case back to the Regional Court but proceeded to
deal with the case itself. Accordingly, it ordered the hearing
of witnesses to go ahead on 13 February 1985 before one of its
own judges, Mr van E., but reserved the decision on the date of
the personal appearance of the parties' representatives until the
witnesses had been heard.
15. Dombo called a number of witnesses, including
Mr van Reijendam. Producing the minutes of a shareholders'
meeting dated 29 June 1984, it claimed that Mr van Reijendam had
been dismissed as managing director for reason of "lack of
funds". It further produced a document from which it appeared
that Mr van Reijendam had been registered as an unemployed person
seeking employment on 27 November 1984 and an extract from the
commercial register from which it appeared that another person
had been appointed managing director of Dombo on
10 December 1984.
16. The Bank objected to Mr van Reijendam being heard. It
based this objection on the rule that a party to the proceedings
could not himself be heard as a witness (see paragraphs 23 and
25-26 below). It claimed that Mr van Reijendam's dismissal did
not reflect the true state of affairs but had been effected only
to enable him to testify.
In a judgment of 12 February 1985 Judge Van E. upheld
this objection and refused to hear Mr van Reijendam. He had
become convinced that both Mr van Reijendam's dismissal as
managing director of Dombo and the appointment in his place of
another person were shams (schijnhandelingen) which served no
other purpose than to enable Mr van Reijendam to testify in the
instant proceedings. He pointed out that Mr van Reijendam had
been present at the oral pleadings before the Court of Appeal on
30 October 1984 and had not protested when Dombo's lawyer
referred to him as Dombo's managing director. He added that in
his view the motives alleged for the dismissal were implausible.
The other six witnesses produced by Dombo were heard on
13 and 20 February 1985. One of them, Mr C.U., was heard on both
dates. This witness had been Dombo's financial affairs manager
from the middle of 1977 until May 1980 and had since retained
links with Dombo as an external adviser. During November and
December 1980 he had "been very closely involved" with the
running of Dombo and this had led to his appointment as statutory
managing director after the suspension of Mr van Reijendam on
4 February 1981 (see paragraph 11, sub-paragraph (c), above).
On 13 February Mr C.U. stated, inter alia, that he had been
present at several meetings of the parties between November 1980
and 28 January 1981 and that, although he could not recall the
exact words used, he had heard Mr van W. say something like,
"Then for the time being we will take a credit of NLG 1,600,000
as a starting-point". When examined for the second time at
Dombo's request, he corrected his statement to the extent that
besides the original credit facility of NLG 500,000 a new
facility had been agreed to the amount of NLG 1,600,000 in
connection with takeovers (mainly of the activities of the
O. company, a small part being intended for the takeover of the
T. company). There had been several discussions, in which this
witness had taken part, about the amount to which the credit was
to be extended.
17. In the exercise of its right to have its own witnesses
heard in reply (contra-enquête), the Bank called two of its
employees, one of whom was the manager of its Nijmegen branch
office, Mr van W.
Dombo objected to the hearing of Mr van W., stating the
view that at all stages of the credit relationship, and also in
the instant proceedings, he 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 disadvantage 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 (see paragraph 16 above), 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., H. and O.] are not
definite enough for this purpose and the statement of
[C.U.] and the notarial statement made by [S.] - whose
experience, as considered, dates only from after
12 May 1981 - are contradicted by those of the witnesses
[Van W. and K.]. The fact that no written evidence is
available of such an important agreement as that referred
to by Dombo, as would normally be expected, compels the
Court of Appeal to take a strict view of the evidence,
and this should also be taken into account.
It was established during the proceedings that between
December 1980 and January 1981 the [Bank] in effect
consented to extend the credit facilities to Dombo in
various forms in larger amounts than Dombo was entitled
to by virtue of any written agreement, but this does not
necessarily mean that Dombo was entitled to the credit
facilities for that reason alone, in the sense that the
[Bank] would not be justified in applying a kind of
temporary embargo on the facilities for reasons of its
own. Although the ease with which the [Bank] allowed
[Dombo] to exceed considerably the credit limit
officially in force provides food for thought, it can be
explained by the negotiations between the parties, which
came to light during the proceedings, concerning the
establishment of a substantially higher credit limit, in
which - as was also common ground between the parties -
the sum of NLG 2,600,000 was mentioned.
It is clear from the statement of the witness
[Van W.] - and Dombo did not contest this again after the
examination of that witness - that at the end of January
1981 the then managing director of Dombo, by misleading
the witness, twice succeeded in drawing considerable sums
over and above what was already to be regarded as
officially a substantial overdraft on Dombo's
consolidated accounts. This amount could reasonably
provide the [Bank] with grounds for temporarily 'shutting
off the flow of credit' to Dombo."
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
(cassatie) to the Supreme Court (Hoge Raad). Paragraph 2 of its
(quite extensive) statement of grounds of appeal (middel van
cassatie) 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,
inter alia:
"Furthermore, the decisions of the Court of Appeal,
(also) if considered in relation to one another, are
incorrect in view of Article 6 (art. 6) of the
[Convention], which guarantees everyone a fair hearing of
his case in the determination of his civil rights and
obligations. After all, this provision implies (inter
alia) that the parties should be able to fight each other
with equal means ('equality of arms') and that every
party to civil proceedings should have the opportunity to
present his case to the court in circumstances which do
not place him at a substantial disadvantage vis-à-vis the
opposing party."
21. The Advocate-General (advocaat-generaal), in her advisory
opinion (conclusie) of 8 January 1988, formulated the opinion
that Dombo was right to argue that "according to current legal
opinion" a person who "could be identified with a party" should
be allowed to testify. In support of this view she referred to
the new law of evidence in civil procedure, which had by then
been accepted by Parliament (see paragraph 27 below). As an
additional argument in favour of this proposition she pointed to
Article 6 para. 1 (art. 6-1) of the Convention, on which Dombo
could in her view properly rely. In this connection she argued,
inter alia:
"In the present case the point was that [Mr van W.] was
able to present his view of what was (or was not, as the
case may be) agreed or discussed between himself and
Mr van Reijendam in December 1980 to the court
extensively (his statement comprises four pages in the
official record and two pages in the judgment of the
Court of Appeal), while Mr van Reijendam was not allowed
to give his version of the events himself. Yet the
success of Dombo's action depended on that."
She went on to advise allowing Dombo's appeal.
22. The Supreme Court dismissed the appeal on
19 February 1988. It rejected Dombo's arguments based on
"current legal opinion", considering that the law of evidence in
force was based on the exclusion of parties as witnesses in their
own case so that it was not possible to anticipate the entry into
force of the new law, which had an entirely different structure.
It likewise rejected the complaint based on Article 6 para. 1
(art. 6-1) of the Convention; this was based, according to the
Supreme Court, on the argument that the Court of Appeal had
violated the principle that "the procedural rights of both
parties should be equivalent". This line of argument, in the
opinion of the Supreme Court,
"... fails to recognise that in assessing the
convincingness of the content of witnesses' statements,
the judge with competence to determine questions of fact
is free to consider the nature and degree of involvement
of a witness with a party in proceedings and that he must
also judge a witness's statement in the light of what the
opposing party has put forward in its written pleadings
or when appearing before the court in person".
III. Relevant domestic law and practice
A. Parties as witnesses, in general: the former law
23. Prior to the entry into force of the new rules of
evidence in civil cases on 1 April 1988 (see paragraph 27 below)
evidence in civil procedure was governed by the Civil Code
(Burgerlijk Wetboek - CC) and the Code of Civil Procedure
(Wetboek van Burgerlijke Rechtsvordering - CCP), both of which
dated from 1838 and were largely based on the corresponding
French codes.
The former law, which applied at the time of the
proceedings in issue, did 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 who is formally or
substantively a party to litigation cannot be heard as a witness
in his own case" (judgment of 1 February 1963, NJ (Nederlandse
Jurisprudentie, Netherlands Law Reports) 1964, 157). This view
was based on, inter alia, Article 1947 para. 1 CC, according to
which relatives by blood or by marriage in a direct line, spouses
and former spouses of parties to proceedings were disqualified
from being witnesses.
The rule that an actual party was not allowed to give
evidence himself was repeatedly confirmed and strictly applied
by the Supreme Court, as reflected by, inter alia, its judgments
of 22 May 1953, NJ 1953, 647; 1 February 1963, NJ 1964, 157;
5 January 1973, NJ 1973, 106, and the judgments referred to below
in paragraph 25.
24. However, it did not follow that it was impossible for the
courts to hear parties in person. The courts had the following
possibilities at their disposal:
(a) The "decisive oath" and the "supplementary oath" involved
hearing a party to proceedings on oath.
(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" (beslissende
eed) (Articles 1967-1976 CC).
(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" (aanvullende eed). 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 (Articles 1977 and 1978 CC).
It was in particular the supplementary oath on which
parties not infrequently relied when there was a possibility that
their evidence would be insufficient; they would ask the court
for permission to supplement their evidence in this way if the
court were to hold it to be insufficient on its own.
(b) The courts also had three possible ways of hearing
parties which did not involve putting them on oath:
(i) By means of an "examination on points in issue"
(verhoor op vraagpunten) of one party at the
request of the other (Articles 234-247 CCP). The
party requesting such an examination had to file
his questions beforehand; however, the court was
entitled to ask additional questions occasioned
by the examination, as was the party who had
requested it.
(ii) By ordering, of its own motion or at the request
of either party, the personal appearance of the
parties for the purpose of obtaining information
(comparitie tot het geven van inlichtingen)
(Article 19a CCP). In principle, such an order
was for the appearance of both parties.
(iii) In the event of oral pleadings (pleidooien).
Article 20 CCP allowed parties to present their
cases themselves, but this was very rare;
however, parties were frequently present at the
oral pleadings and the court could make use of
the opportunity to question them
(Article 144 para. 2 CCP).
It was commonly assumed that statements made in these
three instances did not constitute evidence in support of the
position of the party that made them.
B. Legal persons
25. If a party to proceedings was a legal person, then the
rule disqualifying a party as a witness applied to any natural
person who was to be identified with the legal person concerned.
A natural person was identified with a legal person if he
had acted in the proceedings as its representative (as appears
from, inter alia, the Supreme Court's judgments of 27 June 1913,
NJ 1913, p. 865; 28 April 1916, NJ 1916, p. 786; 19 January 1922,
NJ 1922, p. 319; 17 January 1969, NJ 1969, 251), or if he was
empowered by law or by its statutes to act as its legal
representative (see, inter alia, the Supreme Court's judgments
of 9 January 1942, NJ 1942, 302; 12 January 1973, NJ 1973, 104;
26 October 1979, NJ 1980, 486; 18 November 1984, NJ 1984, 256).
26. Whether or not a person was qualified to be a witness had
to be determined in the light of the situation obtaining when he
was to make his statement. Under this general rule it was
usually assumed that a former director of a legal person, who
would have been prevented from giving evidence while he retained
his position, qualified as a witness following his dismissal
(see, inter alia, the Supreme Court's judgment of 28 June 1985,
NJ 1985, 888). However, this was not the case if the person
concerned had not genuinely lost his position within the legal
person and where his dismissal had to be construed as a sham
(schijnhandeling) (see, inter alia, the Supreme Court's judgment
of 18 November 1983, NJ 1984, 256, and its judgment in the
present case of 19 February 1988, published with an annotation
in NJ 1988, 725).
C. Parties as witnesses: the new law
27. The law of evidence in civil proceedings was extensively
amended by the Act of 3 December 1987, Staatsblad (Official
Gazette) 590, which entered into force on 1 April 1988.
The Bill on which the new law is based dates from as long
ago as 1969. One of the reasons why it took so long for this
Bill to become law was the controversy surrounding the question
whether the above principle - i.e. that parties should not be
allowed to testify -should be abandoned or whether,
alternatively, it should be accepted that parties might be heard
as witnesses. During the parliamentary proceedings this remained
the subject of heated debate both in Parliament and outside it,
but it was eventually decided to abandon the old practice.
Article 190 CCP now allows parties to give evidence as witnesses
in their own case. Accordingly, the decisive and supplementary
oaths referred to in paragraph 24, sub-paragraph (a), above have
ceased to exist.
It appears from the drafting history of this legislation
that those cases "in which insufficiency of evidence on the part
of one party leads to legal inequality" especially led to the
conclusion that "the arguments in favour of allowing parties to
testify should be given more weight than the fear of bias and
problems of assessment, which incidentally are just as likely to
occur in the case of other statements by witnesses". As an
example of such legal inequality it was mentioned "that a party
who is a natural person who is disqualified as a witness may be
confronted with (for instance) a party who is a legal person,
which is in a position to bring forward 'third parties', although
the credibility of these witnesses is just as doubtful in view
of their close connections with that party or the proceedings.
... [I]t is difficult to see why one individual should be allowed
to make a statement under oath in court about matters in which
he had a part while the other person involved should not. This
even applies regardless of any insufficiency of evidence in the
sense that no other evidence is available ..." (Parlementaire
Geschiedenis Nieuw Bewijsrecht, Parliamentary Drafting History
of the New Law of Evidence, pp. 189-90)
It should be observed that differences continue to exist
between a witness who is a party to the proceedings in question
and a witness who is not. For present purposes, it is sufficient
to note that pursuant to Article 213 para. 1 CCP the statement
of a witness who is party to the proceedings "concerning the
facts to be proved by him cannot provide evidence to his
advantage, unless the statement supplements incomplete evidence".
PROCEEDINGS BEFORE THE COMMISSION
28. Dombo applied to the Commission on 15 August 1988. It
alleged that the refusal of the courts to hear its director (or
former director) as a witness while the manager of the branch
office of its opponent was so heard placed it at a disadvantage
vis-à-vis its opponent and so constituted a breach of the
principle of "equality of arms" enshrined in Article 6 para. 1
(art. 6-1) of the Convention.
29. On 3 September 1991 the Commission declared the
application (no. 14448/88) admissible. In its report of
9 September 1992 (made under Article 31) (art. 31), it expressed
the opinion, by fourteen votes to five, that there had been a
violation of Article 6 para. 1 (art. 6-1). The full text of the
Commission's opinion and of the dissenting opinion contained in
the report is reproduced as an annex to this judgment*.
______________________________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume 274
of Series A of the Publications of the Court), but a copy of the
Commission's report is available from the registry.
_______________
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
30. The applicant company complained about the refusal by the
national courts to allow its former managing director,
Mr van Reijendam, to give evidence, whereas the branch manager
of the Bank, Mr van W., who had been the only other person
present when the oral agreement was entered into, had been able
to testify. In its contention, the national courts had thereby
failed to observe the principle of "equality of arms", in breach
of its right to a "fair hearing" as guaranteed by
Article 6 para. 1 (art. 6-1), which reads:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair ... hearing ..."
This view was subscribed to by the Commission but
contested by the Government.
31. The Court notes at the outset that it is not called upon
to rule in general whether it is permissible to exclude the
evidence 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 civil procedure in abstracto. 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 given has since been replaced. In any event, the
competence of witnesses is primarily governed by national law
(see, as recent authorities and mutatis mutandis, the Lüdi v.
Switzerland judgment of 15 June 1992, Series A no. 238, p. 20,
para. 43, and the Schuler-Zgraggen v. Switzerland judgment
of 24 June 1993, Series A no. 263, p. 21, para. 66).
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 para. 1 (art. 6-1) (see,
inter alia and mutatis mutandis, the judgments referred to above,
loc. cit.).
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 provisions such as
paragraphs 2 and 3 of Article 6 (art. 6-2, art. 6-3) applying to
cases of the former category. Thus, although these provisions
have a certain relevance outside the strict confines of criminal
law (see, mutatis mutandis, the Albert and Le Compte v. Belgium
judgment of 10 February 1983, Series A no. 58, p. 20, para. 39),
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 civil 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 the Feldbrugge v. the Netherlands judgment of 26 May 1986,
Series A no. 99, p. 17, para. 44).
The Court agrees with the Commission that as regards
litigation involving opposing private interests, "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
vis-à-vis his opponent.
It is left to the national authorities to ensure in each
individual case that the requirements of a "fair hearing" are
met.
34. In the instant case, it was incumbent upon the applicant
company to prove that there was an oral agreement between it and
the Bank to extend certain credit facilities. Only two persons
had been present at the meeting at which this agreement had
allegedly been reached, namely Mr van Reijendam representing the
applicant company and Mr van W. 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 W. 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
give evidence.
The applicant company was thus placed at a substantial
disadvantage vis-à-vis the Bank and there has accordingly been
a violation of Article 6 para. 1 (art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
36. According to Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or a measure taken by
a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict
with the obligations arising from the ... Convention, and
if the internal law of the said Party allows only partial
reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if
necessary, afford just satisfaction to the injured
party."
A. Pecuniary and non-pecuniary damage
37. In its memorial the applicant company sought compensation
for pecuniary and non-pecuniary damage without specifying exact
amounts. In subsequent documents setting out its claims in
greater detail, Dombo stated that it did not consider them to be
ready for decision. In its view, it was necessary for the
pecuniary damage suffered as a result of the Bank's actions
complained of and the damage resulting from the dismissal of its
claims by the national courts to be assessed by accountants; such
an assessment would also provide an indication of the extent of
the non-pecuniary damage suffered.
38. The applicant company requested the Court primarily to
award a sum by way of an advance on the amount to be paid
eventually by the Government, sufficient for financial experts
to be commissioned to carry out the above-mentioned assessment
of losses. In the alternative, it requested the award of a sum
by way of special legal assistance, sufficient for the same
purpose. In the further alternative, it requested the Court to
defer consideration of its Article 50 (art. 50) claim so as to
give it the opportunity to obtain the required funds elsewhere.
39. The Government commented, firstly, that it was by no
means certain that the national courts would have found for the
applicant company if Mr van Reijendam had been heard and,
secondly, that it would be incorrect to hold the Government
responsible for the prejudice suffered by the applicant company,
which was in any case primarily the consequence of the Bank's
actions.
The Delegate of the Commission suggested that the Court
take into account some loss of opportunities by way of pecuniary
damage and the feeling of unequal treatment by way of
non-pecuniary damage and award a sum on an equitable basis.
40. The Court considers that the question of these claims is
ready for decision.
The applicant company's various claims for compensation
for pecuniary and non-pecuniary damage - which have to be decided
under a single head - are based on the assumption that it would
have won its case if the national courts had allowed
Mr van Reijendam to testify. The Court could not accept this
assumption without itself assessing the evidence. The testimony
of Mr van Reijendam before the Arnhem Court of Appeal could have
resulted in the existence of two opposing statements, one of
which would have to be accepted against the other on the basis
of supporting evidence. It is not for the European Court of
Human Rights to say which should be accepted. This part of the
claim for just satisfaction must accordingly be dismissed.
B. Costs and expenses
41. The applicant company claimed reimbursement of NLG 12,948
for lawyers' fees and expenses in the proceedings before the
Arnhem Court of Appeal. The applicant company further claimed
a total of NLG 48,244.51 less the amounts paid and payable in
legal aid for legal assistance before the Strasbourg
institutions.
The Delegate of the Commission did not comment. The
Government expressed no opinion other than to remark that they
found the amount of time spent on the case by the applicant
company's lawyer - 133 hours - "somewhat staggering".
42. The Court notes that like the claim for compensation, the
claim for reimbursement of costs and expenses incurred in the
proceedings before the Arnhem Court of Appeal is based on the
assumption that the applicant company would have won its case if
Mr van Reijendam had been heard (see paragraph 40 above). This
claim must therefore be dismissed for the same reasons.
43. As for costs and expenses incurred in the proceedings
before the Strasbourg institutions, the Court considers it
reasonable, making an assessment on an equitable basis, to award
the applicant company NLG 40,000 under this head less
16,185 French francs paid in legal aid.
However, the Court does not consider it appropriate to
require the payment of interest as the applicant company
requested.
FOR THESE REASONS, THE COURT
1. Holds by five votes to four that there has been a
violation of Article 6 para. 1 (art. 6-1);
2. Holds unanimously that the respondent State is to pay to
the applicant company, within three months, 40,000 (forty
thousand) Netherlands guilders for costs and expenses
incurred in the Strasbourg proceedings, less 16,185
(sixteen thousand one hundred and eighty-five) French
francs to be converted into Netherlands currency at the
rate of exchange applicable on the date of delivery of
this judgment;
3. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
27 October 1993.
Signed: Rolv RYSSDAL
President
Signed: Marc-André Eissen
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the
dissenting opinion of Mr Martens, joined by Mr Pettiti, and the
joint dissenting opinion of Mr Bernhardt and Mr Pekkanen are
annexed to this judgment.
Initialled: R. R.
Initialled: M.-A. E.
DISSENTING OPINION OF JUDGE MARTENS,
JOINED BY JUDGE PETTITI
1. There are two reasons why I find myself unable to agree
with the Court's judgment.
What 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"1.
_______________
1. As to this rule, see paragraph 23 of the Court's judgment.
_______________
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.
A.
2. The Court starts its reasoning by noting that it "is not
called upon to rule in general whether it is permissible to
exclude the evidence of a person in civil proceedings to which
he is a party" (paragraph 31 of the judgment), and it therefore
declines to examine in abstracto whether the above rule of the
Netherlands law of evidence in civil proceedings is compatible
with the Convention. However, the Court could not avoid
addressing these questions, because the Netherlands courts'
refusal to hear Mr van Reijendam's testimony was the inevitable
result of applying the relevant rule of evidence2.
_______________
2. Although in proceedings originating in an individual
application the Court generally considers itself precluded from
reviewing in abstracto whether the law of the State Party
concerned is in conformity with the Convention, it has recognised
that there are exceptions to this rule. One such exception is
where it is not really possible to distinguish between the rule
and its application or, as the Court usually puts it, where the
decision or measure complained of "was in fact the
result of" the rule's application. See, as the most recent
authority, the Philis v. Greece judgment of 27 August 1991,
Series A no. 209, p. 21, para. 61.
_______________
The Court restricts itself to ascertaining 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 para. 1 (art. 6-1)". Its
decisive argument for answering this question in the negative is
that since
"[d]uring the relevant negotiations Mr van Reijendam and
Mr van W. acted on an equal footing, both being empowered
to negotiate on behalf of their respective parties, [i]t
is ... difficult to see why they should not both have
been allowed to give evidence." (see paragraph 35 of the
judgment)
However, under a law of evidence such as that in force in
the Netherlands at the relevant time it cannot be maintained that
Mr van Reijendam and Mr van W. acted "on an equal footing".
Mr van W. was merely an employee representing his employer,
whereas Mr van Reijendam was to be identified with Dombo, being
at the material time not only its sole managing director but also
- indirectly - its only shareholder3. Since the above rule is
based on the irrefutable presumption that testimony given by "a
witness in his own case" is not to be trusted, the difference in
the roles of Mr van W. and Mr van Reijendam provided a decisive
and sufficient explanation "why they should not both have been
allowed to give evidence".
_______________
3. See paragraph 7 of the Court's judgment.
_______________
In other words, in all situations in which a party to
civil proceedings has to rely mainly if not exclusively on his
own declarations to refute assertions made by his opponent and
corroborated by witnesses, the aforementioned rule of the
Netherlands law of evidence in civil proceedings necessarily
places that party at a disadvantage vis-à-vis his opponent; and
it is this consequence which, in the Court's opinion, justifies
the conclusion that the principle of equality of arms has been
violated. This means that the Court does not condemn the rule's
application in concreto but the rule itself.
3. I very much doubt, however, whether that condemnation is
justified. The rule that a person who is a party to civil
proceedings cannot be heard as a witness in his own case is
evidently based on the view that such testimony is intrinsically
untrustworthy. Moreover, it apparently dates from an era when
the oath to be sworn by witnesses was seen as having so great a
(religious) significance that it was deemed imperative to protect
a party to civil litigation from perjury and the other party from
the possibility that the judge might feel compelled to give
credit to the declarations of his opponent because they were made
under oath. For a long time the rule that nemo in propria causa
testis esse debet was generally accepted and formed part of the
law of evidence in civil procedure in all European States4.
Since the second half of the last century it has been set aside
in a number of countries5. 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.
_______________
4. See H. Nagel, 'Die Grundzüge des Beweisrechts im europäischen
Zivilprozess' (Baden-Baden, 1967), pp. 86 et seq.
5. See Nagel, op. cit., and in Festschrift für Walther J.
Habscheid (1989), pp. 195 et seq.
_______________
Against this background I think that it is very 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.
B.
4. 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 para. 1 (art. 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 vis-à-vis 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 substantive rules of procedure, such
as the rules of evidence, in order to guarantee both parties
substantively equal chances of success; whereas in relation to
litigation concerning civil rights and obligations, the concept
of "equality of arms" can only have a formal meaning: both
parties should have an equal opportunity to bring their case
before the court and to present their arguments and their
evidence6.
_______________
6. See, most recently, G. Baumgärtel, 'Ausprägung der
prozessualen Grundprincipien der Waffengleichheit und der fairen
Prozessführung im zivilprozessualen Beweisrecht', Festschrift
Franz Matscher, Vienna, 1993, pp. 29 et seq., with further
references.
_______________
I take it, however, that the Court is of the same view
and has only introduced this form of words as a test for
determining when both parties cannot be said to have had equal
opportunities to present their arguments and their evidence.
In my opinion Dombo was indeed afforded such an
opportunity.
5. Both parties had ample - and equal - opportunities to
present their case in writing and both parties had ample - and
equal - opportunities to present their evidence. Both sides
submitted documents and called witnesses7.
_______________
7. See paragraphs 12-18 of the Court's judgment.
_______________
It is true that the Bank was able to bring as a witness
its negotiator (Mr van W.), whilst Dombo did not have the
opportunity to call its negotiator, Mr van Reijendam. There are,
however, good grounds for holding that this did not place Dombo
"at a substantial disadvantage vis-à-vis" the Bank.
Firstly, under Netherlands law the courts are completely
free in their assessment of the evidence of witnesses. Thus, the
domestic courts were free to take into account the fact that
Mr van W. was professionally involved with the Bank and therefore
had a certain interest in the outcome of the proceedings8.
Similarly they would have been free to ignore statements made by
Mr van Reijendam had he been permitted to testify. Consequently,
the mere fact that Mr van W. was able to testify, whilst
Mr van Reijendam was not cannot be said to have resulted in a
substantial disadvantage for Dombo9.
_______________
8. This argument was stressed by the Netherlands Supreme Court:
see paragraph 21 of the Court's judgment.
9. Analysis of the judgment of the Arnhem Court of Appeal (see
paragraph 19 of the Court's judgment) reveals that this court
carefully weighed the evidence on both sides and that it was
mainly persuaded to find against Dombo not because of the
testimony of Mr van W. but by "the fact that no written evidence
[was] available of such an important agreement" as one that
raised a credit facility from NLG 500,000 to NLG 2,100,000.
_______________
Moreover, had the Arnhem Court of Appeal found that
Dombo's version of the facts, although not completely proved by
the evidence submitted, was the more probable of the two, it
could have decided in favour of Dombo subject to Mr van
Reijendam's confirming Dombo's version of the facts on oath10.
It is true that courts only ordered a "supplementary oath" if
they regarded the person who was to take it as trustworthy; and
it is also true that because of Mr van Reijendam's manoeuvring
in order to be allowed to give evidence as a witness, the Arnhem
Court of Appeal would not have been likely to regard him as
possessing that quality. But that is immaterial, not only in
view of the maxim "nemo auditur..." but also because the present
argument only concerns Dombo's opportunities as a matter of law.
_______________
10. Mr van Reijendam, being identified with Dombo, could swear
a "supplementary oath" on its behalf - see paragraphs 24 (a) (ii)
and 25 of the Court's judgment.
_______________
6. For these reasons I have voted that there has been no
violation.
JOINT DISSENTING OPINION OF JUDGES BERNHARDT AND PEKKANEN
We have voted against the violation of Article 6 para. 1
(art. 6-1) in the present case. In our opinion, equality of arms
in civil proceedings requires the equality of chances and
possibilities to submit the relevant material to the court
concerned. In proceedings with a legal person as a party, any
individual representing that person may be identified under
national procedural law with the legal person and therefore
excluded from the formal status of a witness. In our opinion,
what is decisive is that the parties enjoy in fact and in law
equality of arms before the national court. We are convinced
that Dombo Beheer, the applicant in this case, enjoyed this
equality of arms. In this respect we refer to paragraph 5 of the
dissenting opinion of Judge Martens.