19 DOMBO BEHEER B.V. v. THE NETHERLANDS JUDGMENT DISSENTING OPINION OF JUDGE MARTENS, JOINED BY JUDGE PETTITI 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 - indirectly - its only shareholder3. 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 procedure in all European States4. Since the second half of the last century it has been set aside in a number of countries5. 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 litigant 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. See paragraph 7 of the Court's judgment. See H. Nagel, 'Die Grundzüge des Beweisrechts im europäischen Zivilprozess' (BadenBaden, 1967), pp. 86 et seq. 5 See Nagel, op. cit., and in Festschrift für Walther J. Habscheid (1989), pp. 195 et seq. 3 4