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Publication:A 274
Title:Dombo Beheer B.V. v. The Netherlands
Application No:14448/88
Respondent:The Netherlands
Referred by:Commission
Date of reference by Commission:26-10-1992
Date of reference by State:
Date of Judgment:27-10-1993
Articles:6-1
50		Conclusion:Violation of article 6-1
Compensation awarded for costs and expenses
Keywords:FAIR TRIAL / EQUALITY OF ARMS / EVIDENCE

Summary:
The applicant company claimed to have a contract with its bank concerning overdraft facilities. After the bank refused to carry out payment orders the company brought proceedings against it before the Regional Court of Arnhem in order to obtain financial compensation. On 2 February 1984 the Regional Court invited the company to submit evidence of the alleged contract, in particular concerning the alleged increase of the overdraft facilities. An appeal by the bank against this decision was rejected by the Arnhem Court of Appeal on 8 January 1985. At the request of both parties, the Court of Appeal dealt with the case thereafter. On 13 February 1985 the investigating judge refused to hear as a witness the former director of the applicant company who had negotiated the contract with the bank. However, he subsequently heard the bank manager who, on the bank's behalf, had participated in the contract negotiations; the company's former director was present on that occasion but was not heard as a witness. On 11 March 1986 the Arnhem Court of Appeal rejected the company's request for financial compensation. On 19 February 1988 an appeal by the company against that judgment and the decisions of the investigating was dismissed by the Supreme Court: it held that the Court of Appeal was free to evaluate the evidence adduced by the bank, in the light of the submissions made by the other party, and to take into account statements made by the bank's witness.

The Court noted at the outset that it was not called upon to rule in general whether it was permissible to exclude evidence of a person in civil proceedings to which he was a party. Nor was it called upon to examine the Netherlands law of evidence in civil proceedings in abstracto. The Court's task was 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 ECHR. 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. Contracting States have a greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases. Nevertheless, the requirement of 'equality of arms', in the sense of a 'fair balance' between the parties applied in principle to such cases as well as to criminal cases. 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. During certain negotiations, the applicant company's managing director and the bank's branch manager acted on equal footing, both being empowered to negotiate on behalf of their respective parties. It was therefore difficult to see why they should not both have been allowed to give evidence. The applicant company was therefore placed at a substantial disadvantage vis-à-vis the bank. The Court held that there had been a violation of Article 6-1 ECHR.

The claims based on the assumption that the applicant company would have won its case if the national courts had allowed its managing director to testify were dismissed by the Court under Article 50 ECHR. The Court could not accept this assumption without itself assessing the evidence. It finally held that the applicant company should be awarded a specified sum for costs and expenses.

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Last Modified: 14-08-2009 17:20:49 (Documentation SIM)