Administrative enforcement derails as mayors look for potential criminals
A new law is in the pipeline that will allow local councils to close a commercial business or refuse a licence to operate if there are indications that the business is being used to launder drug money, for example. Administrative enforcement is called that. This afternoon, federal MPs are considering the text of the bill. Mayors have already expressed their displeasure with the new legislation in several newspapers. We at Advocaat.be also have reservations about the text of the law.
Advocaat.be finds it unacceptable that a mayor can refuse or revoke an operating licence or close a public establishment because there is a risk of the operator committing criminal offences.
To be clear: Advocaat.be is of course not against administrative enforcement. It is a good thing that a mayor can refuse an operating licence to a nail salon if he has concrete information showing that the staff members would be economically exploited there and could therefore be involved in human trafficking.
An example:
Imagine a young man once convicted of dealing drugs when he was 19 and 10 years later wants to run a sports shop in Beringen, Limburg. The mayor orders an integrity investigation and decides that there is a risk that the man would commit criminal acts again. The college of mayors and aldermen then refuses him an exploitation licence. That decision ends up in the register of the Directorate of Integrity Assessment for Public Administrations (DIOB) where all mayors' decisions are kept for five years. If the same man wants to open a sports shop in Bruges a year later, the mayor of Bruges could refuse it on the basis of that earlier refusal in Beringen, among other things.
"Denying entrepreneurs a licence because there is a risk of them committing criminal offences deprives people of a real chance to start with a clean slate," says Sofie Demeyer, spokesperson for Advocaat.be. "DIOB's register becomes a kind of criminal register for potential crimes. Anyone who enters the register with a negative decision will be branded and will find it very difficult to start an economic activity."
You know what's even more punishing?
Even more punishing is that the DIOB can access information from an ongoing criminal investigation and use that information to advise a local council to close a business or refuse an exploitation licence. Again, take the example of the young man of 19. Suppose he is only suspected of dealing drugs. Even then, the mayor can refuse him an operating licence for his sports shop.
"In that case, the College of Mayor and Aldermen takes a decision based on criminal facts that have not yet been assessed by a judge. Administrative law takes the place of criminal law but does not offer the same guarantees as criminal law, such as the right to a defence. That the person concerned can be assisted by a lawyer before the college offers no comfort: that college, even with the best intentions, is not an independent judge. That poses a substantial danger to the rule of law."
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