Policy on drugs runs up against insuperable problems
by professor Brouwer of the University of Groningen (translated from Dutch by Mario Lap and Richard Cowan
The long awaited letter containing the Dutch government’s plans for the coffee shops was sent to the Lower House on the 27th of May. If the government has its way, coffee shops are to be private clubs for just the local market: only members will have access. The maximum number of members is to be stipulated nationally . The mayor will have to define the number of coffee shops based on this fact. Only adult (over 18) residents of the Netherlands can get access to a coffee shop on the basis of a valid identification document and proof of the fact that the applicant is a resident of the Netherlands. Membership cannot be for a period shorter than one year.
The newly presented policy however creates at least three problems.
The first concerns the application of the so-called residency criterion. A coffee shop owner must refuse membership to non-residents of the Netherlands.
According to Article 1 of the Dutch Constitution, everyone on Dutch territory must be treated equally. An infringement of that principle can only be made if there is an objective and reasonable basis to justify it. The reason now given in the letter - the disruption of the public safety/order - cannot be used for such a justification. It presumes that only non residents disturb public order around coffee shops, which however has never been shown or proven to be a problem. If it happens at all, the Dutch are equally responsible.
The Almelo Court has already rejected the coffeeshop policy of the municipality of Hengelo once on these grounds in 1996. It is to be expected that the State Council will judge accordingly on the mandatory denial of access to coffeeshops by non-residents early July in a dispute between the Mayor of the City of Maastricht and a coffee shop owner.
Until now coffee shops are tolerated when they refrain from advertising, hard drugs sales, causing a nuisance, sales to minors, sales limited to a small quantity per transaction, and limits on inventory.
Now a new toleration requirement is to be added: the coffee shop owner should start an association of which its customers must be members. It is very questionable if this is legally acceptable. This club would not be a regular association, but an association that would commit indictable offences on a structural basis.
The court of Almelo in a 2001 verdict has judged such an association to be illegal and dissolved it on the basis of a request by the public prosecutor because of the conflict with public order met (Rb. Almelo 31 august 2001, LJN AD3265). That association’s purpose based on the interest of cannabis consumers for obtaining a supply of quality cannabis products.
It is bizarre – to put it mildly – that the government wants to introduce the requirement of the creation of an association that will act in conflict with public order. Such a requirement creates a serious problem with the freedom of association which is literally limited by public order in article 8 of the Constitution.
A third problem can be predicted regarding the supervision of the required membership administration of a coffee shop operator. A supervisor in this case would not be supervising compliance with the law but supervising non- compliance with the law (Opium Wet / narcotics act) That can hardly comply with the legal description of the task of a supervisor.
Has the government really and sufficiently reflected upon these plans? Or should the launch of this policy plan be seen as an obvious attempt to put the blame on the State Council for not being able to change the coffee shop policy?