WW II Memorial Day

Sometimes it becomes blatantly apparent that having a civil law style "one size fits all" system of tort law has its down sides. While in common law countries there are as many torts as there are crimes, meaning that the plaintiff has to explain why his case has all the elements required by at least one of them, in continental Europe we have statutes like this:

Tout fait quelconque de l'homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé à le réparer. ("Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it.")

That is art. 1382 Code Civil, but similar rules exist in most other European countries. In the Netherlands, this rule is in art. 6:162 BW. The advantage of such a catch-all rule is that it makes the law more flexible. The disadvantage of such a rule is, however, also that it makes the law more flexible.

A particularly dramatic example of the latter comes from mr. G. Vrieze, Judge of the District Court in Zutphen, yesterday. Now, before I continue, I should point out that this ruling was in an expedited procedure, which means that the Judge only had a day or two to think about this. Still, I think we can all agree (well almost all), that there is no excuse for this SNAFU:

In a spectacular act of bleeding-heart liberalism, the organising committee of this years World War II memorial day in Vorden had decided that this year the German soldiers should be remembered as well. They proposed, therefore, that the annual procession should pass by their graves as well as by the graves of the Dutch and allied soldiers. While I sympathise with the sentiment, this was probably a misguided idea. Enter FJN, Federatief Joods Nederland, a Jewish advocacy group, who sued the city. The legal basis of their suit was never entirely made clear, beyond the fact that they were relying on art. 6:162 BW.

Which brings us back to mr. Vrieze. Yesterday, he ruled that the city was not allowed to send representatives to the memorial procession, that the city (not the organising committee!) had to explicitly inform those present that they had the option of leaving before the procession would reach the German graves, and that they had to warn the participants when they were about to reach the German graves. And apparently we should thank everything that is holy that the Judge did not see fit (to order the city) to ban the memorial outright (cf. par. 4.3).  Apparently that would be a disproportionate infringement in the participants' freedom of speech and assembly. (The Judge does not seem to have noticed that neither the participants nor the organising committee was an actual party in the dispute before him.)

As for the things the Judge did order, his explanation (par. 4.5-4.8) ran a staggering 438 words, none of which referred to any actual case law or any kind of articulated standard by which the Judge purported to judge the plaintiff's petition. Instead, there was some hand waiving about hurt feelings, and that was that.

So yes, we're all doomed, although it helps to hear the praise for the speech given today by the President of Germany in Breda on the occasion of World War II Victory Day, the first time ever that they let a representative of the German government do that: