Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

APPLICATION No. 14448/88

DOMBO BEHEER B.V.

against

the NETHERLANDS

REPORT OF THE COMMISSION

adopted on 9 September 1992

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-11) . . . . . . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 12-16). . . . . . . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-27). . . . . . . . . . . . . . . . . . . . . . . . . . .4

A. The particular circumstances of the case

(paras. 17-22). . . . . . . . . . . . . . . . . . . . . . . .4

B. Relevant domestic law

(paras. 23-27). . . . . . . . . . . . . . . . . . . . . . . .5

III. OPINION OF THE COMMISSION

(paras. 28-41). . . . . . . . . . . . . . . . . . . . . . . . . . .7

A. Complaint declared admissible

(para. 28). . . . . . . . . . . . . . . . . . . . . . . . . .7

B. Point at issue

(para. 29). . . . . . . . . . . . . . . . . . . . . . . . . .7

C. The alleged violation of Article 6

para. 1 of the Convention

(paras. 30-40). . . . . . . . . . . . . . . . . . . . . . . .7

CONCLUSION (para. 41) . . . . . . . . . . . . . . . . . . . . . . .9

DISSENTING OPINION of Mr. J.-C. GEUS joined by

MM. C.A. NØRGAARD, J.A FROWEIN, G. JÖRUNDSSON and B. MARXER . . . . . . 10

APPENDIX I : HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . . . . 11

APPENDIX II : DECISION ON THE ADMISSIBILITY OF

THE APPLICATION . . . . . . . . . . . . . . . . . . . . 12

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights and of the procedure before the

Commission.

A. The application

2. The applicant is a Dutch private company with limited

liability and has its registered office at Nijmegen, the

Netherlands. Before the Commission the applicant company was

represented by Mr. A.P.H.M. van Tielraden, succeeded by

Mr. A.D. van der Feltz and Mr. D.W. Byvanck, who are lawyers

practising in The Hague.

3. The application is directed against the Netherlands. The

respondent Government were represented by their Agent,

Ms D.S. van Heukelom, succeeded by Mr. K. de Vey Mestdagh, both of

the Netherlands Ministry of Foreign Affairs.

4. The applicant company complains under Article 6 para. 1 of

the Convention of inequality of arms in proceedings concerning

overdraft facilities with a bank.

B. The proceedings

5. The application was introduced on 15 August 1988 and

registered on 8 December 1988 under file No. 14448/88. On

14 December 1989 the Commission decided to give notice of the

application to the respondent Government inviting them to submit

observations in writing on the admissibility and merits of the

application.

6. The Government submitted their observations on 7 March 1990

and the applicant replied on 8 May 1990.

7. On 3 September 1991 the Commission declared the application

admissible.

8. On 4 October 1991 the parties were invited, should they so

desire, to submit further observations regarding the merits of the

application.

9. The respondent Government submitted such observations on

13 November 1991. After two extensions of the time-limit, the

applicant's supplementary observations were submitted on

15 January 1992.

10. On 21 February 1992 the applicant company was granted legal

aid.

11. After declaring the case admissible, the Commission, acting

in accordance with Article 28 para. 1 (b) of the Convention, placed

itself at the disposal of the parties with a view to securing a

friendly settlement of the case. In the light of the parties'

reactions, the Commission finds that there is no basis on which a

friendly settlement can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations

and votes, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

13. The text of the Report was adopted by the Commission on

9 September 1992 and is now transmitted to the Committee of

Ministers in accordance with Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to Article 31 para. 1 of

the Convention, is

(1) to establish the facts, and

(2) to state an opinion as to whether the facts

found disclose a breach by the State

concerned of its obligations under the

Convention.

15. A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the

Commission's decision on the admissibility of the application forms

Appendix II.

16. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. The applicant company claimed to have a contract with its

bank concerning overdraft facilities. The negotiations took place

between the applicant company's former director and the bank

manager. On 28 January 1981 the bank refused to carry out payment

orders stating that the company's balance had passed the overdraft

facility. The bank denied there was a contract with more

favourable overdraft facilities for the applicant company.

18. The applicant company brought proceedings against the bank

before the Regional Court (Arrondissementsrechtbank) of Arnhem in

order to obtain financial compensation. On 2 February 1984 the

Regional Court, in an interlocutory decision, invited the applicant

company to submit evidence of the alleged contract, in particular

concerning the alleged increase of the overdraft facilities. The

bank appealed against this decision. The applicant company states

that, at the hearing of the Arnhem Court of Appeal (Gerechtshof),

its former director unsuccessfully tried to address the Court,

whereas according to the Government he did not formally request the

Court to hear the parties. The appeal was rejected on

8 January 1985. At the request of both parties, the Court of

Appeal dealt with the case henceforth.

19. On 13 February 1985 the investigating judge (raadsheer -

commissaris) refused to hear as a witness the former director of

the applicant company who had negotiated the contract with the

bank, because he could be said to represent the company, one of the

parties to the dispute, although he had formally been dismissed as

director of the company by the shareholders' meeting on

29 June 1984. The applicant company requested that the

investigating judge should on the same grounds refuse to hear the

bank manager who, on the bank's behalf, had participated in the

negotiations on the contract. The applicant company submitted that

if its request were not acceded to the principle of "equality of

arms" would be violated.

20. On 13 March 1985 the investigating judge rejected the

applicant company's request. At the hearing of the bank manager,

the company's former director was present but was not heard as a

witness. The investigating judge heard for the bank its manager

and one of its employees and for the applicant company one of its

former directors, a former bookkeeper, an administrator, a

management consultant and a tailor. After the hearings of the

witnesses both parties were given the opportunity to submit written

observations regarding the dispute and the evidence taken.

21. On 11 March 1986 the Arnhem Court of Appeal rejected the

company's request for financial compensation. On 27 June 1986 the

applicant company appealed to the Supreme Court (Hoge Raad) against

the decisions of the investigating judge and the Court of Appeal.

On 19 February 1988 the Supreme Court rejected the appeal. It

held, inter alia, that the Court of Appeal was free to evaluate the

evidence adduced by the bank and to take into account the position

of the bank's witness. The Court of Appeal could, furthermore,

evaluate this evidence in the light of any other submissions made

by the other party. The Supreme Court concluded that the applicant

company's procedural rights were, therefore, not infringed.

22. The applicant company's former director was neither heard as

a witness under oath nor did he make any oral statement at any

stage of the proceedings.

B. Relevant domestic law

23. Until April 1988 parties in civil proceedings were not

allowed to testify in their own case pursuant to an unwritten legal

tradition.

24. However, Article 19a of the Code of Civil Proceedings

(Wetboek van Burgerlijke Rechtsvordering-CCP) provided that the

court may, ex officio or at the request of one or both parties,

order the parties to appear in court in order to obtain

information. Parties were thus able to submit orally their view on

the case. However, para. 4 of this provision stipulated that such

a statement made by the party on whom the burden of proof rests

could not be admitted as evidence.

25. Under Dutch civil procedural law, oral pleadings are usually

made by the parties' representatives but Article 20 CCP grants

parties the right to plead themselves. Moreover, a party may,

after the representative's pleadings, make additional oral

statements. These statements do not constitute formal evidence

either but are to be considered as a supplement to the written

submissions and documents in the case-file.

26. On 1 April 1988 the law of evidence in civil proceedings was

amended. Article 190 CCP now expressly authorises parties to

appear and testify as witnesses. As such a testimony can have

important consequences for the outcome of the proceedings, in

particular when the burden of proof rests with the party heard as a

witness, a new Article 213 has been drafted which limits its

evidential value.

27. Insofar as relevant, Article 213 provides as follows:

"1. Indien een partij als getuige is gehoord, kan haar

verklaring omtrent door haar te bewijzen feiten geen

bewijs te haren voordele opleveren, tenzij de verklaring

strekt ter aanvulling van onvolledig bewijs ...".

"1. If a party has been heard as a witness, his

statements concerning the facts to be proven by him

cannot provide any evidence to his advantage, unless the

statements supplement incomplete evidence ...".

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

28. The Commission has declared admissible the applicant company's

complaint that there was no equality of arms in the proceedings

against the bank concerning overdraft facilities.

B. Point at issue

29. Accordingly, the issue to be determined is whether there has

been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

C. The alleged violation of Article 6 para. 1 (Art. 6-1) of the

Convention

30. Article 6 para. 1 (Art. 6-1) of the Convention provides as

follows:

"1. In the determination of his civil rights and

obligations ..., everyone is entitled to a fair ...

hearing ... by a ... tribunal established by law."

31. The applicant company complains that it was placed under a

procedural disadvantage vis-à-vis its opponent since its former

director, who had negotiated the overdraft contract, was not heard as

a witness despite his attempt to submit orally his view to the court,

whereas the bank manager who had negotiated the contract on the

bank's behalf was able to testify. In view of the burden of proof,

the impossibility for the former director to testify and thus to

adduce formal legal evidence breached the equality of arms and

rendered the proceedings unfair.

32. The Government submit that the proceedings were fair as the

applicant company had the possibility to request the court to hear

the parties under Article 19a CCP, although such statements do not

amount to legal evidence. Moreover, pursuant to Article 20 CCP, the

applicant company's former director could also have sought leave to

plead himself or to be allowed to make oral submissions after the

pleadings.

33. The Government further contend that, even if the applicant

company's former director would have been able to testify, the

outcome of the proceedings would not have been altered as the

applicant company did not have sufficient evidence to prove its claim

concerning the overdraft contract.

34. The Commission recalls that the Convention does not explicitly

secure the right to have witnesses called in civil proceedings. That

right is secured, under Article 6 para. 3 (d) (Art. 6-3-d), only to

persons charged with criminal offences. That does not mean, however,

that the citing and questioning of witnesses in civil cases is not

covered by Article 6 para. 1 (Art. 6-1) of the Convention

(No. 9938/82, Dec. 15.7.86, D.R. 48 p. 21, 32). In order to

determine whether Article 6 para. 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 (see e.g. No. 12952/87,

Comm. Rep. 14.1.92, Family Ruiz-Mateos v. Spain, para. 91).

35. Article 6 para. 1 (Art. 6-1) 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 vis-à-vis his opponent, does not lay down

rules as to the evidence as such, and in particular as to its

admissibility and probative value, these questions being essentially

dependent on domestic legislation (No. 7450/76, Dec. 28.2.77, D.R. 9

p. 110).

36. The Commission has therefore examined whether, in the present

case, the applicant company was placed at a substantial disadvantage

vis-à-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 para. 1 (Art. 6-2).

37. It here notes that only one of the two persons who had allegedly

negotiated the overdraft facilities, namely the bank manager, was

heard as a witness, 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 evidence in any

other way.

39. It is true that he could have been asked by the court, in

accordance with Article 19a CCP, to give information and that, under

Article 20 CCP, 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 have carried less weight than the evidence

given by the bank's employee as a witness under oath and that the

applicant company would have remained at a substantial procedural

disadvantage as compared with the other party.

40. It follows that the equality of arms has not been respected and

that the applicant company did not have a fair hearing within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

CONCLUSION

41. The Commission concludes, by 14 votes to 5, that there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary to the Commission President to the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

OPINION DISSIDENTE de M. J.-C. GEUS, à laquelle se rallient

MM. C.A. NØRGAARD, J.A FROWEIN, G. JÖRUNDSSON et B. MARXER

Nous ne pouvons, à notre regret, nous rallier à l'opinion de la

majorité de la Commission.

Nombre de législations établissent une différence entre les

parties à un litige et les témoins, avec la conséquence que les

organes d'une personne morale ne peuvent être entendus comme témoins

dans des procédures où ladite personne est partie, bien qu'ils aient

la possibilité de s'y exprimer selon des modalités différentes.

En l'espèce, s'il est vrai que, formellement, les arguments en

faveur de l'une et l'autre parties au litige n'ont pas été en tous

points exprimés de la même manière devant le juge, cette inégalité

des armes n'est qu'apparente et n'a pu, selon nous, affecter le

caractère équitable de la procédure.

Le fait que le directeur de la banque, qui était l'adversaire

de la société requérante, a été entendu en qualité de témoin ne

confère nullement à ses déclarations un caractère contraignant pour

la juridiction. Ayant prêté serment, il pourrait certes être

condamné pour avoir travesti la vérité dans l'intention de nuire Ã

autrui. En l'absence d'une telle intention - et donc d'infraction -

un témoignage peut cependant être entaché d'erreurs, d'omissions,

d'imprécisions ou de contradictions, si bien qu'il n'a jamais la

valeur d'une preuve absolue. La juridiction disposait donc d'un

large pouvoir d'appréciation lui permettant de confronter ce

témoignage à l'ensemble des éléments du dossier, et notamment les

déclarations orales des employés et anciens employés de la requérante

et des observations écrites qu'elle a pu présenter.

Nous souscrivons, pour ces raisons, à la motivation de l'arrêt

du Hoge Raad (par. 21).

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

___________________________________________________________________

15 August 1988 Introduction of application

8 December 1988 Registration of application

Examination of admissibility

14 December 1989 Commission's decision to invite

the Government to submit their

observations on the

admissibility and merits of the

application

7 March 1990 Government's observations

8 May 1990 Applicant's observations in

reply

3 September 1991 Commission's decision to declare

the application admissible and

to ask the parties for further

factual information

Examination of the merits

13 November 1991 Government's further information

11 January 1992 Commission's consideration of

the state of proceedings

15 January 1992 Applicant's further information

21 February 1992 Applicant granted legal aid

16 May 1992 Commission's consideration of

the state of the proceedings

1 September 1992 Commission's deliberations on

the merit and final vote

9 September 1992 Adoption of the Report.

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DOMBO BEHEER B.V. v. THE NETHERLANDS

DOMBO BEHEER B.V. v. THE NETHERLANDS

LEXI