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.

[*]  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.

[*]  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.

[1] As to this rule, see paragraph 23 of the Court's judgment.

[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.

[3] See paragraph 7 of the Court's judgment.

[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.

[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 .

[7] See paragraphs 12-18 of the Court's judgment.

[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.

[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.