Science for Society | Less rigid, more just

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Suppose that an adult son is living away from home. He deals drugs and has hidden a large quantity of pills at his parents’ home without their knowledge. Following a police raid, the house is sealed off on the mayor’s orders. As a result, the parents end up on the street overnight. The son is still at large. Is this measure really proportionate?

This is what Michelle Bruijn, associate professor at the Faculty of Law, asked herself. Her research into the application of Article 13b of the Opium Act, also known as the Law of Damocles, has resulted in greater scrutiny and more careful consideration of this radical measure. The assessment framework she co-created is now being used by officials to apply the law in a more humane way— something that has become increasingly important in the aftermath of the childcare benefits scandal.

Law of Damocles

Under Article 13b of the Opium Act, mayors have the authority to take action in cases of suspected or actual drug dealing. However, according to the legislator, this law is intended to be applied through a gradual sanctioning process, with increasingly severe penalties. This way, an alleged drug dealer should first be given a warning, and the mayor may only decide to seal off a home in case of repeated violations. That is why the Act is named after Damocles: the measure hangs like a sword over the property occupant’s head.

‘Over the past 25 years or so, mayors have received increasingly more authority to act firmly against drug dealing,’ Bruijn explains. ‘In cases of suspected drug dealing, the gradual sanctioning process is often bypassed, and properties are being sealed off right away. The reasoning behind it is that it serves as a deterrent. So, the law is applied differently than intended by the legislator.’

Right to housing and legal protection

But is that really a bad thing? You would think the faster a drug dealing operation is shut down, the better. ‘The problem,’ according to Bruijn, ‘is that the strict implementation of this law clashes with the right to housing and legal protection in general.’ In the case mentioned earlier, the parents are forced to leave their home. The closure targets the site where the drugs are found, rather than the offender. The fact that the parents are not involved in drug dealing is irrelevant to the issue of the mayor’s authority to take action. The parents do have the option to argue that the closure is disproportionate; however, the process can take months.

As the measure targets the property itself, the occupants’ culpability plays a much smaller role. Unlike in criminal law, the mayor does not need prior approval from a judge. The goal is to end the violation, prevent its recurrence, and restore order in a neighbourhood or area. However, in practice, residents end up on the street, whereas the actual offender may still be at large and continuing to deal from another location. Dealing with the offender falls under criminal law, which requires much more evidence to be gathered.

Research and parliamentary questions

Through her research, Bruijn aimed to assess to what extent this stricter and often “one-size-fits-all” approach is in line with the protection of human rights, or in other words whether the law’s application should be reviewed with greater attention to legal protection, individual circumstances, and tailored approaches. She did this by analysing court rulings related to the Law of Damocles. ‘Part of the research was published around the time of the childcare benefits scandal,’ says Bruijn. ‘At the time, government actions came under close scrutiny, as did the judicial control over these actions. In response to my research and the research I conducted together with my colleague Michel Vols, more than 90 parliamentary questions have been raised regarding the interpretation and application of the law.

Assessment framework for mayor and police

Together with the Dutch Centre for Crime Prevention and Safety, Bruijn developed an interactive assessment framework for mayors, officials, and police. The framework clearly sets out the steps that must be followed when making a decision to close a property. The framework offers additional context and references previous court rulings to ensure a more balanced assessment and one that respects individual circumstances. Is there actual drug dealing? Are there any indications that children live in the property, such as scattered toys? Bruijn, along with her colleagues, created a form that the police can use to notify the mayor about the detected drug-related violations.

‘Good cooperation with the police is crucial,’ Bruijn emphasizes. There are cases where the mayor was not fully informed of all the information needed to make a well-founded and legally sound decision.

Follow-up research

Bruijn is following up on her research with colleagues by focusing not only on the application of the Law of Damocles but also its consequences. Bruijn: ‘I am doing follow-up research together with Michel Vols, Els Schipaanboord, and colleagues from the research agency Pro Facto. Among other things, we want to find out where those people go after a home closure. That will be quite challenging, as many of these people have gone off the radar. We want to assess whether home closure has proven to be an effective measure in cases of actual or suspected drug dealing: has order really been restored to the area, or does the closed off building now stand out as an unsightly spot in an otherwise peaceful street? In addition, we want to assess whether, following the childcare benefits scandal, changes in court rulings, and the introduction of the assessment framework, a truly more humane approach has been reinstated.’

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More information:

• Michelle Bruijn