EHRM, 17-09-2013, nr. 9765/09

In the Netherlands, the English-language expression ‘coffee shop’ (also spelt ‘coffeeshop’ or ‘koffieshop’) denotes an establishment where coffee and perhaps other beverages may be enjoyed on the premises but where in addition certain psychoactive substances (referred to as ‘soft drugs’) are retailed to members of the public for personal recreational use.

On 1 October 1999 the applicant became the landlord of a coffee shop in The Hague. This establishment had been in existence since 1989.

On 18 October 1995 the then owner of the coffee shop had received a written communication from the Burgomaster (burgemeester) of The Hague stating that that establishment would be designated as an existing retail outlet for soft drugs (bestaand verkooppunt van softdrugs). As relevant to the case, this meant that no administrative action would be taken against the sale of soft drugs in that coffee shop as long as the following conditions were met:

Express attention was drawn to the possibility that in the event that any of the above conditions were not met, the Burgomaster might be compelled to take administrative action against the sale of soft drugs in the recreational establishment. Such administrative action would consist of either the closure of the establishment for a limited period or the withdrawal of the license to exploit a recreational establishment. In the event of closure of the establishment, the sale of soft drugs would no longer be permitted after its reopening.

On 3 March 2000, after he had taken over the coffee shop, the applicant was granted a licence (vergunning) by the Burgomaster to exploit it as a recreational establishment serving non-alcoholic beverages.

From March 2000 onwards the Burgomaster informed the applicant on several occasions that the police had noted the failure to comply with the conditions set out in paragraph 5 above and warned him that any further such failure might lead him to take appropriate administrative action.

On 24 July 2001 the Burgomaster sent the applicant a written communication informing him that the police had evidence of the repeated presence of minors in his coffee shop and the sale to minors of soft drugs, and that for that reason he had decided to order the closure of the coffee shop for a period of nine months from 1 August 2001 until 1 May 2002. The designation granted in the written communication of 18 October 1995, referred to as a ‘toleration decision’ (gedoogbeschikking), was withdrawn. The Burgomaster's written communication was delivered to the applicant by the police.

The applicant lodged an objection (bezwaarschrift) on 30 July 2001. On the same date he lodged a request for the provisional suspension (schorsing) of the Burgomaster's decision with the President of the Regional Court (arrondissementsrechtbank) of The Hague.

The President of the Regional Court gave a decision dismissing the applicant's request on 23 August 2001. As relevant to the case, he found that the Burgomaster's decision was based on an accurate assessment of the facts and not disproportionate in relation to the aim of protecting the public.

The Objections Advisory Committee (Adviescommissie bezwaarschriften) of the municipality of The Hague held a hearing on 30 October 2001. The applicant did not appear, preferring to rely on the documents already contained in the file.

On 15 March 2002 the Objections Advisory Board submitted to the Burgomaster an advisory opinion recommending that the objection be dismissed.

On 21 March 2002 the Burgomaster gave a decision dismissing the applicant's objection.

The applicant lodged an appeal (beroep) with the Regional Court (now termed rechtbank) of The Hague. As relevant to the case before the Court, he contested the decision to order the closure of his coffee shop for nine months and argued that the Burgomaster had acted contrary to the published policy of the municipality by withdrawing the ‘toleration decision’ before the closure order had become final.

On 7 October 2003 the Regional Court gave its decision. As relevant to the case, it held that the Burgomaster had been entitled to order the closure of the applicant's coffee shop for nine months. However, the Burgomaster had not stated sufficient reasons to withdraw the ‘toleration decision’ of 18 October 1995 (see paragraph 5 above) before the closure order became final. To this extent, therefore, the applicant's appeal was well-founded and the Burgomaster's decision to withdraw the ‘toleration decision’ was overturned.

It appears from an extract from the Commercial Register (Handelsregister) that the applicant's coffee shop went out of business on 2 October 2001.

On 23 March 2004 the applicant's lawyer wrote to the Burgomaster reminding him of the Regional Court's decision of 7 October 2003 and asking him to take a new decision as ordered. In particular, he asked for the withdrawal of the ‘toleration decision’ to be reconsidered. In addition, he demanded compensation for the damage suffered by the applicant as a result of the withdrawal of the ‘toleration decision’.

Receiving no reply, the applicant's lawyer wrote to the Burgomaster and Aldermen (College van Burgemeester en Wethouders) on 26 May 2004.

The Burgomaster and Aldermen construed the applicant's request as an objection against the failure to give a decision and referred the matter to the Objections Advisory Committee. On 14 July 2004, after holding a hearing, this Committee gave an advisory opinion. Referring to case-law of the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State) (‘the Administrative Jurisdiction Division’), including its decision of 4 June 2002, Landelijk Jurisprudentie Nummer (National Jurisprudence Number, ‘LJN’) AE8045 (see below), it took the view that a ‘toleration decision’ as here in issue was not a ‘decision’ within the meaning of the General Administrative Law Act (Algemene wet bestuursrecht) and recommended that the Burgomaster give a decision declaring the objection inadmissible on that ground. This the Burgomaster did on the same day, adopting as his own the reasons given by the Objections Advisory Board.

The applicant lodged an appeal with the Regional Court of The Hague on 13 August 2004.

On 5 November 2004 the Burgomaster replied to the applicant's demand for compensation, stating his refusal on the ground that a causal link between the action concerned and the damage claimed did not exist.

The Regional Court gave its decision on 7 April 2005. It noted that no appeal had been brought against the Regional Court's decision of 7 October 2003, which meant that that decision had become enforceable and binding on the Burgomaster. Yet the Burgomaster had declared the applicant's objection inadmissible on grounds that he could have stated in the first round of proceedings before the Regional Court, i.e. those leading up to the decision of 7 October 2003, and had thus offended against legal certainty. This meant that the Burgomaster's decision of 14 July 2004 had to be annulled, and the Burgomaster had to decide on the merits anew in the light of the Regional Court's decision.

On 29 October 2004, having received no decision from the Burgomaster on his demand for damages (see paragraph 17 above), the applicant summoned the municipality of The Hague before the Regional Court of The Hague (civil division). He alleged a tort in that the Burgomaster had wrongly withdrawn the ‘toleration decision’, the unlawful nature of the Burgomaster's action having been established by the Regional Court itself in a final and binding decision.

The civil division of the Regional Court ordered the personal appearance (comparitie) of the applicant and the representatives of the Burgomaster. This took place on 25 March 2005. According to the Regional Court's official record, a friendly settlement was reached in the following terms:

The case was duly struck out of the list.

At the relevant time, section 3 of the Drink and Recreational Establishments Act (Drank- en Horecawet) prohibited the retail sale of alcoholic drink without a licence issued by the Burgomaster and Aldermen.

At the relevant time, section 57 of the General Municipality Bye-law of 1982 (Algemene plaatselijke verordening 1982) of The Hague empowered the Burgomaster to grant, refuse or withdraw licenses for catering establishments.

Local policy with respect to coffee shops was defined in a document submitted by the Burgomaster and Aldermen to the local council on 10 June 1997 and approved by the latter of 19 June 1997 (document reference RIS020089_991126). This document brought the policy of the municipality into line with the ‘AHOJG-criteria’ set out in the guidelines of the Board of Procurators General (see paragraph 38 above). As relevant to the case before the Court, it reads as follows:

As the Court has frequently stated, Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded by those provisions. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall ‘within the ambit’ of one or more of the provisions in question. The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and its Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Article of the Convention, for which the State has voluntarily decided to provide (see, as a recent authority among many others, Ramaer and Van Willigen v. the Netherlands (dec.), no. 34880/12, § 86, 23 October 2012).

The Court has already found Articles 6 and 13 of the Convention inapplicable; it follows that Article 14 cannot apply in combination with those Articles either (see, mutatis mutandis, Ramaer and Van Willigen (dec.), cited above, § 87). To the extent that the application is based on Article 14, it is therefore likewise incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

It remains for the Court to consider the applicant's complaints under Article 1 of Protocol No. 12. Unlike Article 14, this Article does not apply solely in combination with rights or freedoms safeguarded elsewhere in the Convention or its Protocols. The Court must, however, apply the same substantive test as if Article 14 were applicable (see Ramaer and Van Willigen (dec.), cited above, §§ 89–90).

As to the first complaint, the Court understands the pertinent case-law of the Administrative Jurisdiction Division (see paragraph 46 above) to mean that a ‘toleration decision’ can be contested by a person to whom it is not addressed but whose interests are inimical to its grant. Such a situation is fundamentally different from that in which the applicant finds himself.

As to the second complaint, the Court points out that the sale of alcoholic drink is not per se unlawful in the Netherlands whereas the sale of soft drugs is.

The applicant is thus not in a ‘relevantly similar situation’ to those with whom he compares himself. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

Declares the application inadmissible.

Marialena Tsirli

Deputy Registrar

Josep Casadevall

President