Mayors must be careful. Just closing a drug store, even if the nuisance is obvious, becomes more difficult. Because the chance that the administrative court will reverse a closing decision has increased considerably. This is the result of three fundamental decisions, Wednesday, by the Grand Chamber of the Judiciary Department of the Council of State, the highest court when it comes to administrative law. Judges are given more room to assess whether a decision taken by the government does not disproportionately harm citizens. The question may be whether a mayor could reasonably have decided to close. Whether a Syrian refugee is rightly withheld residence papers by the justice system. And whether the pub owner is wrongly refused licenses because of presumed judicial antecedents.
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Closure of drug houses
Decisions of that Chamber are leading for all administrative judges, because they are intended ‘to promote the development of law and the unity of law’. And so the Dutch administrative authorities are also looking at the consequences of this new course. Such as the Association of Dutch Municipalities (VNG). Municipalities should better investigate whether imposed punitive measures are proportionate, the VNG warned the day after the verdicts.
The mayor of Harderwijk, Harm-Jan van Schaik, wants to discuss the consequences with the Dutch Association of Mayors as soon as possible. According to one of those statements, he had decided too easily to close a house where, according to police reports, dealing was taking place. He received the message on Wednesday to repeat that closing order and to take more into account the interests of the affected residents.
Closure of drug buildings was actually an instrument for mayors to combat drug nuisance. The Opium Act made this possible for some time if the police found ‘trade quantities’ of drugs in a home. In 2019, this closing power was extended, which may also be applied if production material for hard drugs or cannabis cultivation was found in a building. Since then, mayors have made extensive use of it. And the administrative judge usually ruled in their favor when victims challenged such a closure. Because until recently, administrative law was mainly concerned with the so-called randomness criterion : the judge may review government policy, but not take the driver’s seat.
Mayors had quite a free hand
Bert Marseille professor of administrative law
Residence papers
The Council of State now wants to break with that arbitrariness criterion. Two of the three rulings in principle concerned closure orders for drug nuisance. The third was about illegal room rental. And on Thursday, the Council of State ruled in a regular ruling, but with the new criteria in hand, that the Netherlands wrongly withheld residence papers from a seriously ill Palestinian woman from Syria. She was dependent on her family in the Netherlands for her care, but did not receive permission from the justice system to stay because the Dutch interest outweighed hers. Wrongly, the Council ruled. The woman must receive her temporary residence papers within two weeks.
“Mayors had quite a free hand,” says Bert Marseille, professor of administrative law at the University of Groningen. “In theory, these rulings give administrative judges more room to investigate whether mayors use their powers proportionally. The only question is how that will be applied in practice.”
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The general principles of good governance are receiving renewed attention with these judgments, says Ingeborg Wind, lawyer and partner in administrative law at law firm Van Doorne. Judges now have more room to judge on the basis of inequality compensation – the citizen is always at a disadvantage in proceedings. That benefits the principle of trust. At the moment, too often distant review of the rules still predominates.”
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