From 1 January, Dutch coffee shops are going to have to ask their customers to prove that they actually live in the Netherlands. University of Groningen professor Jan Brouwer, legal specialist on issues of public order and safety, thinks that this ‘resident’s criterion’ should be dumped as soon as possible. ‘The criterion is as unlawful as the "grass pass", which has already been abandoned. That was the instrument that was designed to check the resident’s criterion. The policymakers are imposing something impossible to implement, and are also violating the principle of equality’, states Brouwer.
‘Dutch coffee shop owners are having a responsibility imposed on them that realistically should not be for their shoulders to bear,’ according to Brouwer. ‘In fact, it’s as if the operator of the Efteling amusement park were to be obliged to refuse entry to visitors from Belgium because they often park illegally in Kaatsheuvel - which is not even in the immediate environment of the park. The problems in Kaatsheuvel are charged to the operator’s account, but he has absolutely no influence whatsoever on them. That is not possible in the eyes of the law - the essential causal link between the one and the other is simply not there.’
‘You cannot expect a pub owner to refuse admittance to a customer because that customer committed a traffic offence on his way to the pub,’ says Brouwer with another example. ‘If customers make trouble near the pub, then there is enough of a link to take measures against the pub owner. But making a pub owner responsible for an offence that that customer commits elsewhere in the municipality is walking on legal quicksand.’
The Public Prosecution Service (OM) acts in concert with mayors. The latter are responsible for maintaining public order. In this way an effective sanction can be imposed in cases where the toleration criteria are not being observed. The mayor can then shut down a coffee shop on the basis if nuisance. If coffee shops really caused so much nuisance, you’d expect them to be closed down one after another, but that is not the case.
Brouwer: ‘The Netherlands has 415 coffee shops, and only four were closed down last year due to nuisance. There’s simply not much direct nuisance caused by coffee shops. Making coffee shop owners responsible for behaviour which is no concern of his makes him free game. That’s not only unlawful, but also unwise.’ Coffee shop owners - in formal policy as well - make a useful contribution to public health: they separate the markets for cannabis and hard drugs.’
The key to the Dutch toleration policy for coffee shop owners was thus far based on two criteria they had to bear in mind when making a sale: do not sell cannabis to minors, and do not sell more than 5 grams a day to a customer. It’s up to the coffee shop owners themselves how they satisfy these conditions, and in Brouwer’s opinion they are both reasonable and lawful.
The unlawful part of the resident’s criterion lies in the fact that it violates the principle of equality. That is permitted, but only if there is an objective and reasonable justification for that unequal treatment. The OM is seeking that justification in the fight against organized crime. However, that’s going to have very limited success, mainly because the Minister of Security and Justice permits ‘local interpretations’. Brouwer: ‘That means that organized crime in Amsterdam and surroundings will not be tackled, but that in Maastricht will. That completely negates the justification for the unequal treatment. I can see no legal legitimacy for this policy.’
The Dutch think that their country has an international reputation, good or bad, for toleration of what are in essence illegal practices, for example the sale of cannabis. That reputation is visibly waning, particularly since earlier this month the American states of Colorado and Washington legalized not only the cultivation but also the sale of cannabis. Another fifteen states are promoting the sale and consumption of cannabis on medical grounds on a major scale. Brouwer: ‘The Dutch toleration policy is being overtaken on all sides.’
Prof. Jan Brouwer
is professor of Legal Methods in Groningen and professor-director of the Centre for Public Order and Public Security. He has published on drug nuisance and the administrative-legal response to that nuisance since 1996. This opinion piece by Brouwer and VU University colleague in Constitutional and Administrative Law Jon Schilder will be published this week in the Netherlands Law Journal (volume 87, number 44, 13 December 2012).
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