Closure of houses in case of drug discoveries
Is the door of Damocles unlocked? New developments in case law indicate that homes can be closed down less quickly due to the discovery of prohibited substances.
For unknowing landlords and tenants it is a shock. In the early hours of the morning, the police raid a building. The house turns out to have more uses than known to the landlord. Among the unhealthy inventory carried out are scales with remnants of suspicious white powder, adulterants, packages of greaseproof paper and bundles of cash. One of the residents goes with the police. The rest are left with the proverbial debris.
The Damocles Act
The landlord and tenant find themselves in the shadow of the Damocles Act. They are threatened with closure for a long period of time, in which it does not matter much whether they have participated in the delinquent practices.
Viewed through legal eyes, the legal mechanism of Article 13b, paragraph 1 of the Opium Act comes into play. According to this provision, the mayor may impose an administrative order if prohibited narcotics are sold, delivered or supplied in a dwelling, room or associated premises. This order will usually amount to closure for a number of months.
In 1999, this authority was given to the mayor. The instrument was aimed at “premises accessible to the public”. In other words, it was about combating the trade in drugs in the catering industry and business premises. A powerful weapon that the government could take up to guard the public order, but within clear limits; an administrative tool, meant to be applied in extremis. The legislator’s idea was that by closing down a building, it would become known as a drugs den, thus eliminating the ‘loop’ to the building and removing it from the drugs circuit.
Meanwhile, almost all Dutch municipalities have a so-called Damocles policy. This policy generally regulates the circumstances under which the mayor will decide to close and the period for which the closure will be imposed, given the nature and gravity of the violation of the Opium Act.
Intensive use of the Damocles policy
When it was introduced, it was not expected that the instrument would be added to the standard administrative repertoire. Over the years, the legislator has stretched various enforcement powers far beyond the limits for which they were created.
In 2007, for example, the power to close was extended to include homes. From 2019, the power can also be used if criminal preparations have taken place in the premises, even if these have not yet led to trading.
Mayors have started to use the instrument with increasing regularity. In doing so, the original intentions of the legislator have been lost sight of with the passage of time.
Lack of counterweight
The system of the law is also vulnerable. An order to close is imposed and can subsequently be executed without the approval of a judge. The lawfulness of a closure will only be judged after the order has been issued – the residence may already have been vacated. A landlord or occupier who wants to prevent the closure pending the court’s ruling will have to rush to the court to ask for a suspension of the closure order. A suspension has not been granted very often in recent years. Research by the University of Groningen showed that even such a temporary injunction was rejected in 4 out of 5 procedures.
In the minority of cases in which an order was suspended by the preliminary relief judge, or when the mayor postponed implementation of the order until after the outcome of proceedings on the merits, the closure was almost always upheld. If the court overturned the closure, it was usually a stay of execution – usually because of a flaw in the mayor’s reasoning for the closure. An amended or new decision could then impose the order with an improved justification, after which the closure remained in place.
The rarity of successful proceedings against residential property closures is the result of the administrative courts’ detached approach.
Distant judges
In proceedings about Damocles closures, the administrative judge’s courtroom seemed to serve as an annex to the mayor’s office. The substantive assessment of the closure orders was not very extensive and usually proceeded as follows.
First, the administrative judge determined whether the mayor was authorised to impose an administrative order under article 13b of the Opium Act. This determination is made quickly, if there is no discussion about the discovery of prohibited goods under the Opium Act.
Then followed the question in which the interests of those involved should be considered, namely whether the closure is reasonable. First, it was considered whether the municipal policy was reasonable. Then it was considered whether the mayor had considered the circumstances of the case. Finally, the administrative judge assessed whether the mayor could reasonably decide to impose the charge.
The assessment usually concentrated on the question of whether the mayor had acted contrary to the prohibition on arbitrariness. The excessiveness of a closure had to be extreme and flagrant for the judge to blow the whistle on the mayor.
In doing so, the administrative judge displayed an art of reasoning in which a certain amount of legal scholarship could be heard, but in which not much social awareness could be discerned. In essence, the court followed its line of reasoning in the wake of the legal mechanisms of the Opium Act, without carrying out a full review of its own. In concrete terms, this came down to the following.
In the law, a quantity of half a gram of hard drugs, or 5 grams of soft drugs, is regarded as stock-in-trade. If any quantity above this legal limit was found, the judge considered the conclusion that the house must have served as a trading post appropriate. In doing so, the judge easily overlooked the rather essential difference between an inhabitant and a dwelling. Common sense suggests that the presence of one gram of hard drugs does not make a living space a commercial space.
Nevertheless, the Administrative Jurisdiction Division of the Council of State found the order to close reasonable once the threshold of the trading stock in the Opium Act had been passed. Even very small findings of just over half a gram of cocaine or heroin justified a closure order. In essence, the administrative judge reduced his control task to legitimising an administrative closing down reflex.
À propos: judging consistently, this logic would have made many a home in Amsterdam’s ring of canals, as well as many an office on the Zuidas, eligible for closure. To the blessing of their population, these notable regions do not come within the enforcing sights of the mayor.
The position of the landlord
The owner of the premises will be inclined to cooperate with the municipal authorities. As the landlord of a “drug” premises, he will not want to run roughshod over the authority, on top of the discouraging effect of judicial distance. This tendency is reinforced by a simplification of the possibility of dissolving the lease. Pursuant to Article 7:231 paragraph 2 of the Dutch Civil Code, the lessor has the option of dissolving the lease contract out of court after an order to close has been issued. Thus, the termination of the lease becomes in fact the private-law final element of an administrative enforcement offensive.
Incidentally, the legislator dropped a striking stitch in the latest adjustment of the legal regime. The mayor’s extended authority to close on account of punishable preparations has not been given a counterpart in the regulation of the authority to dissolve the lease by the lessor. As a result, the lessor can terminate the lease agreement out of court if narcotics are found in the residence, but not if equipment is found that serves to prepare the production, transport or trade. Apparently, the legislator forgot to include a further reference in article 7:231 of the Civil Code. Due to this legislative error, the lessor has to go to court in that case. An ill-considered legislator has thus driven the lessor into the position of civil enforcer on the one hand, but on the other hand has provided him with an inadequate set of instruments.
The position of the tenant
After closure, tenants are usually not allowed to return to the property. In addition, tenants may end up on a ‘black list’, which means that for a number of years they are not eligible to rent from a housing corporation. Little attention is paid to the question of whether a tenant has actually participated in prohibited acts committed by a co-occupant.
This raises the question of whether the tenant is not being punished by the closure. This has also been argued several times in court. The line of reasoning is that a punitive measure must be imposed by the judge and not by the mayor, with due regard for the guarantees of a fair trial. When this argument is made, the administrative judge draws a line between a restorative sanction and a punitive sanction. According to the court, the closure may only be aimed at ending and preventing violations of the Opium Act if it is to be a recovery sanction. If the closure is more far-reaching and thus serves to add to the harm, it is a criminal sanction. Whether the closure serves to add suffering must be judged according to the criteria laid down in the case law of the European Court of Human Rights. The question of principle often revolves around two decisive elements: the nature of the violation and the severity of the measure.
Invariably, the Administrative Law Division concludes that there is no question of a criminal sanction. The reasoning is not always convincing. Usually, the reasoning is that the closure is aimed at ending and preventing a violation by destroying the reputation of the house as a drugs den. According to the Administrative Jurisdiction Division, this argues against the assumption of a punitive character. In addition, the severe consequences of the closure do not in themselves make the measure punitive, since the aim is to destroy the reputation of the dwelling as a drugs den and to prevent repetition. With this circular reasoning, the administrative court in 2018 further locked the door to effective legal protection.
The door is unlocked
At the beginning of 2022, there seems to be a drastic change of course. An accumulation of excesses in the enforcement of legislation has caused a shock in the chambers of state councils of the Division. A rude awakening has brought the highest administrative court to the realisation that its supervisory role has been neglected. This insight has also had repercussions in the domain of Damocles.
In its judgment of 2 February 2022, the Administrative Law Division distanced itself from the formula that the mayor could reasonably impose the order to close. The question is no longer whether the mayor acted arbitrarily. The Administrative Jurisdiction Division now requires the administrative courts to consider the question of whether the closure is proportionate.
From now on, the court will also look more closely at whether the closure is effective in restoring public order and protecting the residential and living environment. Following on from this, the court must examine whether there are less strict measures that can achieve the same objective. If a found trading quantity is not traded from the residence, the need for closure will not be assumed so quickly.
Furthermore, the closure will have to be more attuned to the actual situation than was previously the case. The culpability of those involved is important here. The absence of any involvement of a co-occupant in a violation of the Opium Act may mean that the mayor is not allowed to use his authority to close the home. In general, the landlord and the resident are required to exercise some supervision over what happens in the house, but the court notes that there are limits to the supervision that can reasonably be expected, partly depending on the living situation. If the mayor makes use of his authority to close a residence, he will in any case have to properly substantiate which specific reproach is made to the resident affected by the closure.
Finally, the closure must be proportionate to the seriousness of the consequences. Emphasis must be placed on the fact that the closure is an infringement of the right to respect for one’s home and private life. Financial damage, for example due to the costs of replacement accommodation, or the fact that vulnerable residents are involved, must also be considered.
New consideration for the mayor, the tenant and the landlord
The case law thus offers appropriate room for challenging an order to close. For residents affected by a closure order who were not involved in prohibited practices, the closure no longer seems to be a fait accompli. This is likely to lead to a more nuanced use of the power to close, with mayors applying their Damocles policy in a less implacable manner.
It is also likely that tenants will be less inclined to accept closure, as the new assessment framework seems to offer them a real chance in cases where drugs have been found belonging to a co-occupant through no fault of their own.
Moreover, landlords are able to make their own actual assessment. Dissolution no longer needs to be automatic. The same applies to the usually docile attitude towards the municipal authorities. Now that the possibility of challenging a closure order has been broadened, it is likely that landlords will more often stand up for their interest in keeping a property ‘open’.
Given the recent date of the latest developments, it is premature to draw firm conclusions about the future. However, the expectation can be cautiously expressed that a better balance is in the making, between preventing urban decay on the one hand, and protecting citizens against enforcement excess on the other. In any case, we will continue to follow the case law in the Damocles’ domain closely.
