It regularly happens that a mayor closes a catering establishment because a criminal offence is alleged to have occurred in or near that establishment.

Recently, Club Vie in Rotterdam was closed, following reports of sexual offences in which the victims had visited the club moments before.

It was widely reported in the press by the operator that he could not be blamed because he had done everything he could reasonably be expected to do to prevent these incidents from happening. However, the wry thing is that, according to established (national) case-law, it does not matter for closure whether the operator acted culpably.

This is because the municipality invariably states that the purpose of the closure would not be to punish the operator, but to restore public order and prevent recurrence. As there would therefore be no punishment, but a remedial sanction, the culpability question is of secondary importance. This reasoning is followed with regard to closures by the highest Dutch courts. 

Yet, as far as I am concerned, this reasoning is not Strasbourg-proof. Indeed, several rulings of the European Court of Human Rights show that the Court does not make the purpose, but the effect of the government action the decisive factor in determining whether there is a 'criminal charge', also known as a punitive coercive measure.

A closure often results in great reputational and financial damage. Given this effect, it is tenable in my view that a closure decision (even a temporary one) qualifies as a 'criminal charge'. In that case, the person concerned is entitled to the legal safeguards under the European Convention on Human Rights, including a full proportionality test. A closure would probably fail that test in the absence of culpability. Also, the adage: 'no punishment without guilt' applies.

I consider it quite possible that the Council of State, under the influence of the Strasbourg case-law, will 'turn around' once more and do designate closure as a punitive coercive measure for the operator. In that case, a closure would no longer fall under the normal business risk and the far-reaching consequences for the operator and the efforts he made to prevent the incidents will have to be fully taken into account. This makes the likelihood of closure (without compensation) a lot smaller. 

The court did not reach this question in the Club Vie case. The municipality could not sufficiently prove that there was a direct link between the (vice) crimes and the club. Because of this inadequate filing by the municipality, the club was allowed to reopen immediately. 

Mr D.M. Penn