3.

It may be readily seen from that commentary. that Article II of the Protocol requires application not only in criminal proceedings as part of which civil claims are also to be tried but also in criminal proceedings in which the judgment of the criminal court may have the force of res judicata in a subsequent civil action under the relevant national law. On the other hand the provision may not be extended so far as to apply to all criminal. proceedings. The first paragraph of Article II of the Protocol may not in fact be removed from its context; it may not be treated as a general rule of criminal procedure applicable in the contracting States. The scope of its application is restricted to that of the Convention which, according to Article 1 thereof, “shall apply in civil and commercial matters” and to those matters only. It is only from that point of view that criminal proceedings could have concerned the draftsmen of the Convention. The first paragraph of Article II of the Protocol must therefore be read together with the second paragraph. It then becomes apparent that the right granted in the first paragraph is available only if “a civil action” must or might have to be tried. Such a civil claim will be for compensation for the damage caused by a criminal act to the person injured or his successors in law. The person injured may bring that claim for damages : — Either before the criminal court having jurisdiction to decide upon the charge — in which case one speaks of “Adhäsionsverfahren” [action for damages which may be joined with criminal proceedings] in the Federal Republic of Germany and of “constitution de partie civile” in France, Belgium and Luxembourg; as a prerequisite for such proceedings, damage to property, personal injury or non-material damage must have been caused to the victim as a direct result of the criminal act; it is not sufficient for the damage or injury to have occurred simply on the occasion of the criminal act; — Or later, before a civil court — here again a distinction must be drawn between the actual claim for damages and other civil claims which may have been occasioned by the criminal act and which may be based on breaches of contract for example. The meaning and object of the provision is however to safeguard the opportunity of being heard, which the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters guarantees in all civil actions, even where a decision is being taken in criminal proceedings on “civil and commercial matters”. In the cases in which a civil action is not brought before a civil court until later it must indeed be assumed as a matter of principle that the general provisions of the Convention on the protection of the accused operate in the last-mentioned case. But the problem of legal protection then arises if the civil court is bound by the earlier judgment of the criminal court since those general provisions are then redundant. It is only in such cases that the provision in question allows an accused person to be defended by persons suitably qualified if the conditions set out therein are fulfilled. The Commission makes the point here that it may be assumed that all the States which signed the Convention recognize the unwritten rule that rules concerning the defence of the accused must be construed broadly and in his favour. To support that argument it adduces in evidence the report in connexion with the 1961 Treaty drawn up by the joint Belgian, Netherlands and Luxembourg Study Commission on the Harmonization of Laws. Commenting on Article 13 of the Treaty that report states at p. 63 that under Belgian and Luxembourg law “the judgment in a criminal case has the force of res judicata in any subsequent civil action ... In view of this, the subsequent civil action brought against a Netherlander convicted of a criminal offence will inevitably go against him. It is therefore essential that he should be able to conduct his defence during the criminal stage of the proceedings”. Those observations were adopted word for word in the Jenard report. The report on the Benelux Treaty contains this additional comment on Article II of the Protocol: “Since this provision is meant to protect the rights of the defence it is to be construed in favour of the accused”. Those comments must however be viewed in their context; they are qualified by the phrase “in relation to any subsequent civil action”. So their scope may not be considered to be absolute: They apply only where a civil claim for damages is tried together with criminal proceedings or in a subsequent civil action for compensation for the damage caused to a third party by the accused himself. Therefore Article II may have application only where a third person who is injured as a result of an offence which was not intentionally committed brings or may bring claims in conjunction with the criminal proceedings as long as the criminal court has not arrived at a final verdict with regard to the charge, or where the accused's liability at civil law is at any rate already in question at that stage.