DOMBO BEHEER B.V. v. THE NETHERLANDS JUDGMENT
14
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 SchulerZgraggen 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).