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 hear d as a witness in his own case" [1] .

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 r elevant rule of evidence [2] .

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 - in directly - its only shareholder [3] . 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".

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 p rocedure in all European States [4] . Since the second half of the last century it has been set aside in a number of countries [5] . 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 litiga nt to testify in his own case.

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 the ir arguments and their evidence [6] .

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 witnesse s [7] .

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 proceedings [8] . 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 sub stantial disadvantage for Dombo [9] .

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 Dom bo subject to Mr van Reijendam’ confirming Dombo ’ s version of the facts on oath [10] . 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.

6. For these reasons I have voted that there has been no violation.