As a result of Article 13b of the Opium Act (Damocles Act), mayors can close any home, business premises, office or warehouse when drugs are traded from the premises or part of it.

Previously, opposition to a proposed closure was unlikely. One of the requirements for closure, walk to the property, was adopted. Whether drugs were actually traded was irrelevant. The mere presence of drugs was sufficient to be able to close.

A number of months of closure of the property would, according to the law, help to remove 'the walk to the premises' of drug users and drug traffickers. They would be based on the commercial quantity of drugs present there (another requirement).

These views are usually automatically attached to the closing decision because they are contained in so-called Damocle policy.

Most municipalities with Damocle policy have a fixed schedule to determine the duration of the closure.

For dwellings, the predetermined closing time is as follows:

• soft drugs in a home: first a warning or 3 months closure.
• hard drugs in a home: immediate closure for 3 or 6 months.

And for non-residential properties such as business premises, storage rooms and other:

• soft drugs in a building: immediate 3 or 6 months closure.
• hard drugs in a building: immediate 6 or 12 months closure.

When a property is closed for a second time due to drugs, the closing period in most municipalities is doubled and in a third case the owner even has to transfer the property to the municipality (Wet Victor).

Recently, such closures have been viewed more critically by judges.

The previously adopted 'walk to the property' is no longer accepted. In addition, it is no longer enough to refer only to the Damocle policy. A trade-off must be made on a case-by-case basis.

In the past, it also did not matter whether a landlord had done everything possible to prevent a tenant from using the rented property for drug trafficking or setting up a hemp farm in the rented premises.

Culpability of the owner or tenant of a property was, but still is, not a requirement for the mayor to demonstrate. Closure is not a criminal charge.

The judiciary is, recently, still looking at the degree of (lack of) culpability of the owner/landlord. An owner or landlord who has done everything possible to prevent a situation as referred to in Article 13b of the Opium Act may therefore still be able to prevent closure.

However, the legislature is going to extend the power of closure by extending the scope of Article 13b of the Opium Act. See this bill in this context. The presence of objects that, according to the Minister of Justice, can be used for the drug trade also gives the mayor the power to close the building in question.

Have you received a pre-announcement or is your building in danger of being closed soon by order of the mayor? Please feel free to contact Mr. Sepehr Yadegari. Send an email or call 020 – 244 3900.