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Joep Zander - Netherlands
part text of the complaint, translated.

Translation of part of the application: Zander-Netherlands 32040/96

  1. Violation of the Convention
    1. Dereliction of active duty to protect
    2. In the opinion of the Applicant, the State of the Netherlands does not fulfil its obligation, by virtue of article 1 of the E.V.R.M., to secure the rights and freedoms established in the First Title of the Convention.

    3. Violation unjustified
    4. As a result of the above-mentioned decisions, the right to ‘family life’, guaranteed in article 8 E.V.R.M., section 1, is infringed. In the opinion of the Applicant, this violation is not justified by exceptional grounds of section 2 of this article, in accordance with the conditions mentioned in that article, while considering:

      - the method in which the Dutch Judge applies the Dutch rules of law

      that provide for infringements of the right to ‘family life’ permitted under Dutch law;

      - the fact that the denial grounds adopted in Dutch Law basically permit

      unlimited denial, or at least:

      allow considerably more discretionary space for the denial of parental access, than permitted by section 2 of article 8 of the E.V.R.M..

      (See the denial ground referred to in article 377a, section 3 subsection d Civil Code Book1: "access will be in contravention of considerable interests of the child").

    5. Discrepancy among State Organisations

The State of the Netherlands has in its legislative bodies accepted the obligations stemming from the Convention for the protection and abstinence from infringements, and, although incomplete, stated these in the Dutch Law. However, the State of the Netherlands continues to fail to comply with these obligations in its judiciary and executive bodies.

Article 8 E.V.R.M. indicates that infringement of the fundamental right to access is and can only be possible if stringently described conditions have been complied with. The denial grounds that existed at the time of the above-mentioned procedures in the Dutch Civil Code (161a Civil Code Book 1) and are still in existence (article 377a Civil Code Book 1), only partially complied and comply with those conditions.

In this case, the Judge tested in the past the request to establish an arrangement for parental access between the Applicant and his minor daughter Rosa against the denial grounds mentioned in 1:161a Civil Code. Pursuant to this test, this Judge did not proceed to denial, but to establishment of an arrangement for parental access. Afterwards, the mother of the minor daughter, after she first had observed the established arrangement during a certain period, stopped the arrangement unilaterally, as of October 1992. This discontinuation comprised an unlawful violation of the fundamental right, protected by article 8 E.V.R.M.

Due to this unilateral discontinuation, distance was created between the Applicant and his minor daughter Rosa.

Subsequently, the Applicant sought protection of his protected right by article 8 ex article 1 E.V.R.M. with the Dutch Judge by summoning the mother in summary proceedings in order to claim compliance with the prevailing arrangement for parental access. In reaction to this, Bosman proceeded to the initiation of a petition procedure to terminate the decision on access which had been prevailing up to that moment. This did not take place until Bosman had denied the minor daughter contact with the Applicant without legal ground, for one year.

  1. Article 8 E.V.R.M.

The European Commission clearly indicated, for instance in the Hendriks case (NJ 1983, 191), its approach towards the right of parental access: "The Commission considers that the natural link between a parent and a child is of fundamental importance and that, where the actual ‘family life’ in the sense of ‘living together’ has come to an end, continued contact between them is desirable and should remain possible. Respect for family life within the meaning of Article 8 thus implies that this contact should not be denied unless there are strong reasons, set out in para. 2 of that provision; which justify such an interference ….’.

This consideration of the Commission also expressly states ‘strong reasons’. The Dutch Legislator was compelled to adopt the denial grounds mentioned in article 1:161a section 3 Civil Code – which is at present article 1:377a section 3 Civil Code. Only based on these reasons, access can be denied.

In the case at issue, the Court considered (rov. 7) that in the relationship between Rosa and Zander (the Applicant) in itself, no impediments exist that resist contact between them. The disrupted relationship between the parties is apparently sufficient for the Dutch Judge to breach a fundamental human right of the parent and the child. This ground, however, is not sufficient to assume that this entails ‘strong reasons’ in order to deny the Applicant access.

The Dutch Legislator has never advocated such a ground as a reason to deny access. The Minister pleads in the Memorandum following the final report – Lower House, meeting year 1993-1994, 23 012, no. 8 – that requirements can be made upon the exertion of authority of the parent entrusted with parental authority. Hence, one of the elements of a proper exertion of authority is that the parent entrusted with parental authority cooperates to the implementation of the arrangement for parental access and encourages the child to maintain contacts with the other parent.

In other words:

Both the European Commission and the Dutch Legislator advocate an approach of the issue that is entirely different from that of the Dutch Judge.



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