DOMBO BEHEER B.V. v. THE NETHERLANDS JUDGMENT DISSENTING OPINION OF JUDGE MARTENS, JOINED BY JUDGE PETTITI 18 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 heard 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 relevant rule of evidence2. 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 As to this rule, see paragraph 23 of the Court's judgment. 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. 1 2