Uitspraak
Judgment
DISTRICT COURT OF ZUTPHEN
Civil Division - Commercial Sector
Case number/cause-list number: 130219/KG ZA 12-134
Judgment in interlocutory proceedings of 4 May 2012
in the case of
the legalentity as defined in Article 2:2 of the Netherlands Civil Code (Burgerlijk Wetboek)
theFEDERATIEF JOODS NEDERLAND (Federation of Jews in the Netherlands),
established in Amsterdam,
Plaintiff,
legal counsel H. Loonstein, LLM in Amsterdam,
against
the legal entity under public law
the MUNICIPALITY OF BRONCKHORST,
registered in Hengelo (Gelderland),
Defendant,
appearing through the authorized officials Mr P. van Eykel and MrH.D.G.J. van Woudenberg,
legal counsel F.B.M. van Aanhold LLM in Zutphen.
The parties are referred to hereinafter as ‘FJN’ and ‘the Municipality’.
1.The procedure
1.1. The course of the proceedings is evidenced by:
- the summons;
- the official report of the hearing of 4 May 2012;
- the pleadings submitted by FJN;
- the pleadings submitted by the Municipality.
2. The facts
2.1. The FJN has been looking after the interests of Jews in the Netherlands for years. The FJN considers the protection of deceased Jews and their memory to be part of its remit.
2.2. The 4/5 May Committee of Vorden(referred to hereinafter as: the Committee) has organised the annual commemoration ceremony at the municipal graveyard in Vorden for many decades.
2.3.After World War II the Committee was composed of concerned Vorden citizens and new members have been appointed by co-option since then. The Committee does not have any form of legal personality. The Committee receives a small annual grant from the Municipality.
2.4.This year, for the first time, the Committee intends to include German soldiers in the commemoration ceremony. These soldiers were buried in the graveyard in Vorden– approximately 25 metres away from the central memorial – after they were killedin the immediate surroundings of Vordenduring the aftermath of World War II.
2.5.The aim of the Committee is to make healing and reconciliation between the various groups of survivorsthe outstanding characteristic of the ceremony; the new form of the ceremony, for instance, has been decided in consultation with two British families of fallen British soldiers; families whohave been involved in the commemoration ceremony in Vorden for many years.
2.6.The commemoration of German soldiers was initially intended to be part of the ceremony, but has subsequently become a voluntary option: after the official ceremony described in the programme has taken place any persons attending may either walk past the graves of the German soldiers or not; they will not be prevented from laying flowers or wreaths there either.
2.7.Every year, on 4 May, the mayor and one of the aldermen and/or councillors represent the Municipality at a commemoration ceremony in one of the many villages which together formthe Municipality of Bronckhorst. This year mayor Aalderink will attend the ceremony in Vorden.
2.8.Also this year, the mayor, wearing his chain of office, will deliver his traditional speech and, on behalf of the Municipal authority, will lay a wreath at the memorial in the centre of the graveyard where the British war graves are and the words “Voor hen die vielen ” (For those who fell) are written on a plaque.
2.9. Last week, for the first time,the Municipality and the Committee have been in close contact because of the public outcry that has arisen as a result of the intention of the Committee of Vorden to commemorate the German dead. The Municipalityhas announced through the mayor that they see no cause for not participating in the ceremony.
3.The dispute
3.1. The FJN considers the commemoration of German soldiers who fought for NaziGermany during World War II to be hurtful and/or offensive towards victims (living and dead) of the Nazi regime and their relatives, among which are many Jews.
The FJN considers the Municipality’s intention to allow the intended commemoration of German soldiers to take place, and/or to participate in it or to be represented at it on 4 May 2012 in Vorden, within the framework of the annual commemoration of the dead on 4 May, to bea wrongful act against it and those whose interests it protects.
3.2.On these grounds the FJN requests the court, in a judgment having immediate effect,
a) to forbid the Municipality from rendering any assistance to a commemoration of German soldiers who fought with the enemy forces during 1940-1945, on its territory on 4 May 2012; and its most far-reaching demand is:
b) that the Municipality must also do everything in its power to ensure that such a commemoration does not take place,
c) the costs to be determined by the court.
4.Assessment of the dispute
4.1.Despite the counsel’s plea on behalf of the Municipality to dismiss the action brought by the FJN, the judge in interlocutory proceedings considers it sufficiently plausible for the time being that the objective laid down in the FJN’s Articles of Association is to protect the interests of Jews in the Netherlands, including the memory of the Jewish dead.
4.2.The judge in interlocutory proceedings assumes that it is not the Committee of Vorden who is the plaintiff in this case and that it is not, therefore, the way in which the Committee is intending to hold the ceremony which is under dispute. The only question that could be put up for discussion is whether the municipality could and should take action against this ceremony or should be allowed to participate in it. There is no evidence either of any decision being defined in the General Administrative Law Act (Algemene Wet Bestuursrecht) that a judge in interlocutory proceedings could submit to the common test of reasonableness, meaning: could a Municipality, acting in accordance with the criteria of reasonableness and fairness,decide to ignore a restraining order or decide to participate in, or attend, a commemoration ceremony which includes the commemoration of fallen German soldiers?
Consequently, the only question that remains is whether the Municipalityis actuallyacting wrongfullytowards those represented by the FJN and what provisional measure(s) is/are justified in this matter.
4.3.The judge in interlocutory proceedings is of the opinion that granting the FNJ’s most
far-reaching demandstated under b), which amounts to a total prohibition of the commemoration ceremony, would be too severe; the same applies to the suggestions that the graveyard be closed or that people be prevented from visiting the German war graves. So the question whether either of these options is an unacceptable interference in the liberty of the persons attending to express their feelings about the loss of loved ones, their compassion with the involuntary victims, their admiration towards the resistance and their views on the grief caused by war, can be left undecided.
Controversy about the question as to who should be publicly commemorated must not lead to an end of the traditional commemoration ceremony. Such a prohibition would be disproportionate and it remains to be seen – a question which the plaintiff has not answered either- whether the Municipality – apart from an emergency decree in the event of a serious risk of disturbances of public order- actually has such powers.
4.4. So the subject under discussion is not a prohibition, or another form of rejection, of the intended broader commemoration ceremony, but whether it is permissible for the Municipalityto take part in, or attend a new form of the commemoration ceremony by having itself represented at the ceremony by its mayor delivering a speech and leading the procession.
The hearing has not provided clarity about the question as to whether the mayor – without his chain of office –should walk up to the German graves or not. The intention does not appear to be to lay flowers or wreaths there, but to lead the procession again, to bow the head and/or to stop by at the graves.
In this case it is still possible that,through its representation,the Municipality will hurt the surviving relatives and others by taking partin this new form of commemoration ceremony, even though the Municipalitydoes notexplicitly havethe intention of so doing.
4.5. The judge in interlocutory proceedings shares the opinion of the FJN that it is wrongful towards the FJN and those whose interests it strives to protect – to wit the (living and dead) victims of the Nazi-regime and their next of kin – forthe Municipality to participate in the intended commemoration of German soldiers in Vorden within the framework of the annual commemoration of the dead and/or be represented there. Commemorating fallen German soldiers may be appropriate, but not on 4 May, and notin a commemoration ceremony which is held in memory of the victims of the Nazi regime, Dutch war victims and allied soldiers who came to liberate the Dutch people from the power of the Nazi-occupiers, whose power was maintained by, among other things, the support ofGerman army conscripts (the Wehrmacht). The Municipality may have been taken by surprise to some degree or other, when the Committee of volunteers– assumedly – with the best of intentions, suddenly brought up the idea of widening the traditional ceremony, but it should have realized that the plan would not immediately – within a week of becoming known – meet with the approval of the older generations as well, all the more so since there apparently is no evidence of it having gained any public support, evidence which might have been determined for instance by conducting a survey of various sections of the population or by holding a public hearing in the municipal council.
4.6.The judge in interlocutory proceedings considers it significant that the Committee stated that they could not propose the new arrangement until after the former resistance fighters in the Committee had died.
In saying this, it is explicitly acknowledged that theresistance fighters would have found it hard to accept and it should therefore seriously be taken into consideration that the samewould also hold for their next of kin.
4.7. Theplan to leave it up to the persons attending to split up at the end of the ceremony and either take the usual route to make their way home or follow the mayor and the Committee and walk past the German graves, can only lead to confusion and discord,instead of the intended “healing and reconciliation”. In such a big crowd some people will probably, if no warning is given, meekly follow the mayor only to notice quite unexpectedly that they are standing beside the German war graves. Provisions must be made to prevent this from happening.
4.8.Such provisions shall also be directed towards the mayor in his capacity as head of the municipality: for the sake of the feelings of some of his citizens and citizens elsewhere in the Netherlands he must avoid the German graves in the evening of 4 May 2012.
Removing the chain of office is not a solution, since the mayor would lose his credibility if he entered the graveyard as mayor and left as a private citizen. This holds even more for other municipal representatives who do not wear a chain of office which they can remove.
4.9.Since, on the one hand, the most far-reaching claims of the FJN will be rejected and, on the other, the Municipality’s conclusion that the claim should be entirely rejected, will not be met either, the parties will compensate each other for the costs of the proceedings in the usual manner.
5.The judgment
The judge in interlocutory proceedings
5.1. orders the Municipality of Bronckhorst to take the following measures at the commemoration ceremony at the municipal graveyard in Vorden on 4 May 2012:
a) ensure that no representatives of the Municipality visit said German graves on behalf of the Municipality, lay flowers or a wreath on these graves or carry out another act of commemoration,
b) explicitly point out to the persons attending that it is possible to leave the graveyard without walking past the German graves,
c) warn the persons attending when they are taking the path to the German graves;
5.2.declares this judgment to have immediate effect;
5.3.declares that the parties share the costs of the proceedings equally, which means that each party will bear its own costs;
5.4.denies what was otherwise requested.
This judgment was rendered by G. Vrieze LLM and delivered in public on 4 May 2012.