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8 March, 2001

Joep Zander v. Netherlands decision



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Subject: a more considered appraisal of the Zander decision at the ECHR

Application no. 32040/96 by Joseph ZANDER against the Netherlands

 

Dear All,

Following my last message on the inadmissibility of my complaint at the ECHR I'd like to give a more detailed appraisal after reading the decision. (You may remember I was reluctant to do so at that time).

On Friday 23-2 I gave a lecture at Leiden University (the oldest university in Holland) to both a Dutch and an international group of students. It was about my experiences at Strasbourg. Afterwards I had a discussion to assess the lecture with the Professor who invited me. He had formerly worked at Strasbourg. As a result of this discussion and of my preparation for the lecture, I can add some more remarks on the decision in my case.

 

 

Regarding Zander v. Netherlands

1. An oral hearing seldom takes place. It is even rarer in a case where the admissibility still has to be decided.

2. The decision is of an unusual length for a non-admissibility-decision.

3. There was a minority of judge(s) who held the opinion that my case was admissible, because it is signed as a majority and not a unanimous decision.

Combining 1, 2 and 3 gives even stronger support to my suggestion that there was a division in the court (well, it's a fact now, actually). It would be very interesting to know what the minority's opinion was. But this would only become known if the case was admitted. And this could also be (are there other explanations?) a reason why the case was not admitted. In this light it may be that the majority of judges did indeed want to, or have an interest in hiding the arguments of the minority.

In regard to my mention of soroptimists in my former message to you all, I should point out that it is not unusual to discuss the power balances in such cases, or the influence this may have on the sentences they arrive at. Such matters were also considered legitimate areas of discussion on Friday.

4. The decision of the Strasbourg court still contains some incorrect portrayals of the facts, but the insinuations against me put out by the court press office in the lead-up to the hearing appear to have been countered successfully and have mostly disappeared. So the decision gives a better-balanced vision of the facts of the case. Still there remain some remarkable mistakes. The Strasbourg decision makes it appear that the domestic courts had ruled on the terms of the law – which in point of fact they did not do. They said they did, but they didn’t – in the sense that they made no arguments to this end (this is kind of complicated). There are more points of this nature.

I must say that it is still quite appalling that the ECHR forced me into countering false notions as to questions of fact. Having to defend my case on these grounds took energy and attention away from other more fundamental issues. The way the public press release from the ECHR was formulated was disgraceful. The fact sheet was even worse but not so public. I am glad that everyone can now see that there was no reason for the insinuations that were made, on the contrary. On this point I will also remark that after the ECHR decision the mother placed an embargo on giving me photos of my daughter.

5. The main reasons for denial of admissibility are, I think;

a. Poor vision of the facts

b. Undue allowance for discretion of Dutch domestic judges in their decisions

c. No arbitrary decisions found

I still stick to my opinion that there is no doubt that the decisions of the home courts were not only unnecessary in a democratic society, they were an offence to democracy in every possible interpretation of this phrase.

6. I also debated what should be changed in the operation of the Court:

  1. I think the Court should have the possibility of redirecting cases to the domestic courts in cases where outstanding questions as to the facts remain
  2. The Court should be aware of translation problems (it will be recalled that the court made no translation of my application/complaint at all)
  3. This and every court should become more conscious of the significance its own interests may have in decision-making

The ECHR decision on my case has been published in the most important Dutch juridical magazine. I'm working on a press release for the Dutch press. If anyone is interested in other texts I used in my lecture, press releases and so on, please give a call.

In October last year an article by me was published in the national magazine of the Dutch Child Protection Service. I discovered this last week. It is amazing that in the same week the Dutch State made an assault on free expression in stating that I would be aiming at publicity and this might be contrary to the interests of seeing my daughter, they publish another article by me in their own publication. By the way, this article was called (translated) "Parental arrangements from an international perspective" and speaks about the Declaration of Langeac, the Shared Parenting Bill in New Zealand and other issues like this. I'll try to organise a translation into English.

Thanks again for your attention,

 

Joep Zander


Schoutenweg 41
7413 XA Deventer

0570-621784

http://joep.nl.nu
site het zál vaders een zorg zijn: http://pappa.nl.nu

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Comment on the decision of the European Court of Human Rights on the decision Zander-Netherlands by Joep Zander followed by Julian Fitzgerald.


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Dear All,

Two weeks ago I got a decision from the European Court of Human rights. I haven't reacted till now because it was a very disappointing decision, and I felt too angry about it.

My complaint was found inadmissable. I still haven't read the decision. And I don't think I will give the court the honour of doing so. I'm sure there are no real grounds for the decision, perhaps there are even lies and insults.

In all the procedures concerning my daughter I have had the feeling that I do not understand what a judge should have to do with it. But I have been forced to deal with these people who have the arrogance to interfere with my daughter's and my rights. I have had to read their decisions because as they are so often negative, I have had to consider them in order to be able to appeal further down the line.

From the start, I found out that there was not much logical sense in any court decision. So, after a few decisions which were insulting, I began to be active in other ways, parallel to the proceedings. One of these was my 12-day hunger strike in October 1995 (see my site for further information on this). I was in the media frequently, and because I was able to take some sort of action in this way I was able to stay relatively sane. Sane enough even to write and publish articles about the problem. Writing these articles was used by the Dutch state in Strasbourg as a new avenue of attack against me. They tried to categorize me as a troublemaker rather than a fighter for human rights.

The arguments I deployed in the ECHR hearing were valid, although it was a pity that my complaint did not cover articles 3, 6 and 14 of the Convention but formally just the violation of article 8, due to my first lawyer's approach to the case.

Why react? It is worth mentioning here, at the risk of accusations of being a conspiracy theorist, that there exists an international organisation ( website url:
http://www.sorop.org/, international headquarters office, 87 Glisson Road, Cambridge, CB1 2HG, UK) called the Soroptimists - an organisation "in favour of the Sisterhood of Women," reserved exclusively for professional and retired professional women. The first judge involved in my case was a board member of this group, the vice-president of the ECHR-chamber was a member and so was one of the State officials, most likely president Palm herself is.

Soroptimists have a large presence in the judiciary. In fact the whole ethos of favouritism towards women in family cases is so firmly embedded in the juridical system that it rules relatively unquestioned. In Holland I have publicly criticised judges who where board members of this organisation because their independence in cases between men and woman must be in doubt. To take an analogy, what would be the reaction to a board member of FNF judging family matters? It should be noted that in this case, FnF (Families Need Fathers, UK) is well-known, in spite of its name, for its balanced gender views, not least regarding shared parenting. Furthermore, membership is open to both sexes.

In general the ECHR seems to be an organisation motivated by political power, not too interested in the niceties of legal arguments. Their legal arguments are like cotton wool, muffling the clarity of vision that an appellate court must needs have, because this allows national courts to continue to exercise almost unfettered discretion. So what is the worth of their arguments? What is the worth of reacting to their arguments?

Perhaps people would like to point me to some positive decisions by the ECHR like Elsholz v. Germany. OK, sometimes they give decisions that make a little bit of sense if the power balance allows them to do so. But I must warn you all about the overwhelming myths that can develop around such decisions, Elsholz being a prime example.

Elsholz had to do with discrimination concerning unmarried parents, an area in which Germany is worse than other European countries. The ECHR did NOT say that he should have seen his child and did not give him pecuniary compensation for that. They said there was a lack of investigation. The ECHR did not mention PAS themselves as the argument although it did appear to intrude on their deliberations. My case was perhaps too fundamental and too obvious for even marginal favour to be shown. You could perhaps put it this way: I already was right, and had been rejected in the national courts of Holland, so why should the ECHR give me my rights?

It seems to be quite strange that the court gave me the opportunity to be heard in an oral hearing knowing they might give (or already knew for sure they would give) a denial of admissibility. Was this to counter the criticism that all the admissibility decisons were taken without serious argumentation or discussion? Was it because the court was divided up until a certain critical moment?

Looking back at some points in the process and certain intuitive feelings I had about the reactions of court employees I feel there must have been a kind of division of visions within the court but that this division was somehow 'solved' just some weeks before the hearing.

The way the fact-sheet on the case was written was quite subjective or worse. It was there that they started (yes started, it was never mentioned in any juridical decision before) the insinuation that I may have used violence against the mother. The Dutch state easily took this suggestion to heart although the opposite was true. It is amazing to consider that the ECHR not only gave the opportunity to bring in new 'facts' in an arena where that was simply not their remit, but that they initiated this move themselves. As the Public Relations Officer for the ECHR said (when I complained about the press-release) 'there must have been some reason this problem started,' presuming by this that mothers in these cases act reasonably.

Though of course you are all free to look at the decision on my case, see:

http://hudoc.echr.coe.int/Hudoc1doc2/HEDEC/200012/32040di.chb1_24102000e.doc

I would astill dvise you all to reread my pleadings (http://joepzander.nl/statem.htm) and ask me for further evidence in case you doubt the truth of this text. I think that in general we should invest less effort on individual proceedings and more on group solidarity and mass-oriented campaigns. But now and then we can try again to bring fundamental cases to the ECHR or the Human Rights Committee in Geneva. And even these cases can be used to try to get new dynamics in cooperation and publicity, comparable with what was done in Strasbourg in my case.

Although I think that a 'parents-view' on the problem looks a great way of coping we shouldn't neglect the fathers' view. Fathers are heavily discriminated against in Europe and America, and increasingly in the rest of the world. I look forward to the new book by Farrell on this matter (being published this month) and I hope I can bring my own book, already written, to the point of publication as well.

I wish Len Miskulin very good luck because he is right that there are not too many other ways to fight this problem. You will all be aware of the growing repression, especially against fahers.

Again I thank you all for attending or following my case. I still think that our meeting there in Strasbourg was a great and important one.

See you

yours

Joep Zander


Note:

I have read the European court document and am afraid Joep is fully justified in his pessimism about the worth of reading it himself. I remember that the first time I encountered court judgments I was shocked. I had always assumed that they must be impartial, balanced appraisals. In fact, what the judge said and wrote turned out in every instance I encountered to be a piece of unashamed advocacy for the judgment reached, simply ignoring contrary facts and assertions.

As an example of this, in the third paragraph of the ECHR judgment we find that the Regional Court agreed to change the access arrangement in accordance with the wishes of Ms B as "communication at school" had apparently led to conflicts between the applicant and Ms B.

In actual fact, the relationship between Joep and the school was good, between the mother and the school not so good, and this was one cause of friction between them. Arrangements to curtail Joep's attendance at school simply undermined his position as a parent.

Only a brief opinion as to the quality of the judgment can be offered here. Suffice to say that the judgment never reaches beyond the anodine, constantly misconstrues the facts of the case and speaks in sufficiently muffled and obfuscatory language as to render almost unquotable its conclusions, which are in a very real sense "inarticulate." As an example, take this, one of the concluding paragraphs:

The Court considers that, in determining whether an interference was "in accordance with the law", it is primarily for the national courts to interpret and apply domestic law (cf. McLeod v. the United Kingdom, Reports of Judgments and Decisions 1998-VII, p. 2789, § 44). Insofar as the applicant argues that the decisions of the domestic courts in his case were not "in accordance with the law", the Court notes that the decisions complained of were based on former Article 1:161a of the Civil Code. The reason for terminating the existing access arrangement and, in the summary injunction proceedings, not to accede to the applicant's request was that such access would be contrary to weighty interests of Rosa, i.e. a ground explicitly provided for in Article 1:161a § 3 (a) of the Civil Code. In these circumstances, the Court accepts that the interference was "in accordance with the law" within the meaning of Article 8 § 2 of the Convention.

Julian Fitzgerald
fried@aesops.force9.co.uk


Joep Zander


15 January, 2001 16:30

Mrs E. Palm, President,
judges:
substitutejudges:

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