European Court of Human Rights

Information Note on the Court’s case-law No. 167

De Bruin v. the Netherlands - 9765/09

Decision 17.9.2013 [Section III]

Article 6

Civil proceedings

Article 6-1

Civil rights and obligations

Proceedings challenging a burgomaster’s decision to close a “coffee shop” for failure to comply with conditions attached to tolerance of sale of soft drugs: Article 6 § 1 not applicable

Facts – In October 1999 the applicant became the landlord of a coffee shop in The Hague. The former owner had received a written communication, known as a “toleration decision”, from the Burgomaster stating that the shop would be designated as an existing retail outlet for soft drugs. This meant that no administrative action would be taken against the sale of soft drugs in the shop provided certain conditions were met. In July 2001, following repeated warnings, the Burgomaster informed the applicant that the shop would be closed for a period of nine months owing to breaches of the conditions set out in the “toleration decision”. The applicant challenged that decision in the domestic courts, but to no avail.

In his application to the European Court, the applicant complained, inter alia, of various violations of Article 6 § 1 of the Convention in the domestic proceedings.

Law – Article 6 § 1 (applicability): Save in so far as substantive provisions of the Convention may require the active prosecution of individuals reasonably suspected of being responsible for serious violations thereof, decisions whether or not to prosecute were not within the Court’s remit. While public authority may have tolerated transgressions of the prohibition on the retail of soft drugs to a certain extent, or subject to certain conditions, it could not follow that a “right” to commit acts prohibited by law could arise from the absence of sanctions, not even if public authority renounced the right to prosecute. Such renunciation, even if delivered in writing to a particular individual, was not to be equated with a licence granted in accordance with the law. Accordingly, the “dispute” in the applicant’s case, though undoubtedly genuine and serious, was not about a “right” which could be said, at least on arguable grounds, to be recognised under domestic law.

Conclusion: inadmissible (incompatible ratione materiae).

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