Not only do the corona measures have a major impact on our daily lives, the judgment of the court in preliminary relief proceedings of the Court of Zeeland-West-Brabant of 22 April 2020 shows that the restrictive corona measures must also be included in the weighing of interests in the application of Section 13b of the Dutch Narcotics Act.
Power of closure pursuant to Section 13b Narcotics Act
Pursuant to Section 13b Narcotics Act, the mayor is authorized to impose an administrative enforcement action to close a building if drugs are sold, delivered or provided in the building or the land belonging to it or are present for that purpose. If a trafficking volume of drugs is found, it is assumed that these drugs are (partly) present for trafficking purposes. However, the closure of a building still requires a weighing of the interests involved.
Judgment of 22 April 2020
What is this Waalwijk case about? On 30 September 2019, the police found a large quantity of hemp in the storeroom of the applicant’s home. As a result of this discovery, the mayor closed the house and its storage room on 27 November 2019. The applicant objected to this. The mayor declared the objection unfounded by decision of 11 March 2020. In the decision on the objection, the mayor considered that if the person concerned could not find accommodation with family or friends, she could turn to an institution for (emergency) shelter. As a result of the decision on the objection, the person concerned would have to vacate her home no later than 22 April 2020.
At the time of the decision on the objection, corona had not yet been classified as a pandemic. However, several hygiene instructions were already in force in the Netherlands. For people living in the province of Brabant the advice was to work from home as much as possible. One day after the decision on the objection, stricter measures were announced in the Netherlands and the advice to avoid social contact also applied.
Should the mayor have anticipated this in his decision on the objection? Although the judgment of the court in preliminary relief proceedings did not make this explicit, it seems that the court in preliminary relief proceedings was of this opinion. The court in preliminary relief proceedings considered that, in the decision on the objection, the mayor only considered in a general sense that the applicant could make use of the (emergency) shelter. In the opinion of the court in preliminary relief proceedings, the applicant’s interests were thus insufficiently taken into account. The court in preliminary relief proceedings continued that the risk of further spread of the coronavirus is more limited if the applicant is able to stay in her own accommodation. This is evidently a circumstance that the mayor should already have taken into account in his weighing of interests on 11 March 2020. In view of the time of the decision on the objection and the fact that Waalwijk is a municipality in Brabant, this is not incomprehensible. The court in preliminary relief proceedings concluded that now that it had not become apparent that there was actually alternative accommodation specifically suitable for the applicant available, when weighing the interests concerned decisive weight should have been given to the applicant’s interest to be able to still stay in her own home during the period that the aforementioned restrictive measures are in force in the Netherlands.
Incidentally, in the case of Section 13b closure orders of an earlier date which have not yet been executed, mayors will also have to consider the outbreak of the coronavirus. Circumstances have changed drastically due to corona restrictions. It is obvious that mayors should consider whether, as a result thereof, the execution of closures should be suspended.
Do you have any questions about this article? Please do not hesitate to contact Anita van den Berg.
