Mayors are insufficiently overruled

The authority of mayors to close drug locations is ungrounded and clashes with the right to a fair hearing and the right to housing. This is the conclusion of research by Michelle Bruijn. In the project 'The Administrative War on Drugs', she illustrates how this issue could be approached differently by municipalities.

Text by Bert Platzer, Photo by ANP/Flip Fransen, Photo by Hesterliena Wolthuis, Source: Broerstraat 5

Five grams of soft drugs, five weed plants, half a gram of hard drugs, an XTC pill, or five millilitres of GHB: frequent revellers might recognize these numbers as so-called personal use quantities. In the Netherlands, if you do not possess any more than this amount, then the only thing you have to worry about is confiscation. If you are found to have a higher amount, then it is automatically classed as a trade volume. If the police finds this at your home, the mayor can proceed to the temporary closure of your home and you will be forced out onto the street. If you live in rental accommodation, the landlord can terminate your rental contract and, on top of that, you have a high chance of being blacklisted. Any innocent housemates or family members, including young children, will then also suffer: a home closure affects the entire household.

Quite a bit faster

The fact that administrative law, primarily intended to enforce public order, is used to combat drug crime is not in itself problematic, according to assistant professor Michelle Bruijn. 'It is interesting that the general idea is that one problem can be approached from multiple legal disciplines. In administrative law, mayors have autonomous authority to close properties, including homes. No judicial review needs to precede this. Of course, this is quite a bit faster than a sluggish criminal law proceeding. But it becomes problematic if the blurring between legal disciplines leads to inadequate legal protection being offered.'

If somebody's home is closed, the resident can appeal this decision. The mayor must then reconsider their decision. If the appeal is denied, which is more often than not the case, then the only option is to go to court. But months often pass before the case is dealt with, during which time the home closure is not deferred.

Closure as a punitive measure

According to Bruijn, this clashes with the right to a fair hearing and the right to housing. This is especially the case when you consider that enacting the authority to close properties is far removed from what the legislator had initially intended, concludes Bruijn in her thesis, with which she obtained her PhD last year. 'This authorization, Article 13b of the Opium Act, was introduced in 1999 so that mayors had a tool to be able to close coffee shops', explains Bruijn, referring to the Dutch 'coffee shops' that primarily sell cannabis. 'This worked so well that, in 2007, it was expanded to include homes. But this measure was still only intended by the legislator for the closure of illegal drug-selling locations, to restore public order. So, to end the trading of drugs and return to a legal situation.'

What is leading here is not only that a trade volume of drugs, exceeding the amount permitted for personal use, is found in a location but that these drugs are intended to be sold. 'How do you infer this? Well, that's the question', says Bruijn. 'Mayors tested how far they could go within these boundaries, and were insufficiently overruled by the court. As a result, every trade volume of drugs nowadays counts as grounds to immediately proceed to the strongest action, namely closure. In addition, closure is increasingly deployed as a punitive measure. Mayors and municipal aldermen speak, for example, about "tackling criminals". Yet this action is not focused on people, but on the location of the offence.'

Warning with consequences

Quite a few undesirable aspects therefore exist in practice regarding closing drug locations. But does it at least work? 'That is completely unclear', says Bruijn. 'There is no overview of where people go if their home has been closed, or whether crime or drug trade did indeed occur in the property and whether that actually comes to an end after the closure. This is not monitored by municipalities or by the police.'

For all these reasons, Bruijn is searching for links to practice in the project 'The Administrative War on Drugs' to make it clear that other approaches are possible. Together with the Dutch Centre for Crime Prevention and Safety, Bruijn has built a collection of online resources on administrative approaches to drug crime. 'In this collection, I update the case law every month and municipal aldermen can consult it for any questions they may have. For instance, they can make use of the court assessment framework to couch their decision-making. Step-by-step plans are also provided, which you can use from the very moment at which drugs are found in the home to plan out what to do next. It is all explained in detail.'

It seems to be paying off. Bruijn has observed that recently, mayors are more frequently choosing to impose an order subject to a penalty than to immediately close the home. 'This is a sort of warning with consequences. You issue a warning that comes with a fixed fine if the offence is committed again. So, if somebody reoffends, the fine must automatically be paid. In this way, you provide someone with a second chance, especially in situations involving children or rental conditions.'

Impact Award

Bruijn sees change taking place at other levels, too. In response to a report that she wrote together with UG professor Michel Vols for the Ministry of Justice and Security's Research and Documentation Centre, the Dutch House of Representatives adopted a motion stipulating that consequences must be monitored if a mayor closes a property. 'And, on 2 February, the Council of State judged that if a property closure is brought before court, the court must investigate this in greater depth. Until now, courts did not want to meddle with the autonomous authority of mayors too much, but the Council of State has now established that if human rights, such as domiciliary rights, come into play, then courts must be more critical.'

Bruijn's research is therefore important to practice, which resulted in her being awarded the Ben Feringa Impact Award, launched by the UG in 2020 to honour exceptional achievements by researchers and students in the area of knowledge utilization. 'It is, of course, an enormous accolade, especially for the importance of collaboration between academia and practice', says Bruijn. 'You can go and write articles or a book by yourself on all the things that aren’t right and how they could be better, but impact is only generated once you make this knowledge available for people working in practice. This has been materialized in a major way via the Dutch Centre for Crime Prevention and Safety. It is absolutely wonderful to see that my knowledge is being rolled out and used broadly in society.'

CV

Michelle Bruijn (1991) studied Law at the UG, where she also obtained her PhD with the honours predicate cum laude in 2021 for her thesis The Alternative War on Drugs. She works as a researcher for the Centre for Public Order and Safety in addition to her position as assistant professor in the Department of General Law Studies at the UG. For the project 'The Administrative War on Drugs', she won the Ben Feringa Impact Award 2022.