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Implementation
Exclusion order by the mayor
A municipality also has the opportunity to impose an exclusion order on the basis of Article 172, paragraph
3 of the Municipalities Act. This provision rules that the mayor has the authority, in the event of a
breach of public order or serious concern with regard to the creation of such a breach, to take measures
that are necessary to maintain the public order. An exclusion order can also be imposed on the basis
of the corresponding general municipal by-law. This enables a mayor to prohibit someone from taking
up residence in a particular place. In order to impose an exclusion order, a number of conditions must
be complied with. The exclusion order may only be imposed in the event that the circumstances (disturbance
of public order) so require. The order must also be intended to end the disturbance of public
order or to limit the consequences of this disturbance. What is more, the term of the exclusion order
must be associated with the duration of the disturbance of public order. The term of the order may not
be disproportionately long. 551 With regard to the exclusion order on the basis of Article 172, paragraph 3
of the Municipalities Act, a maximum of three months seems to be applied. In the event that orders that
limit freedom are set aside by the court, including exclusion orders, this tends to be due to previouslystated
conditions not being taken into consideration. According to the Minister of the Interior and
Kingdom Relations, the problem was not due to the possibilities that exist under the law, but to how
these powers were applied. 552 It is not always the case that it is the individual who is returning to society
who is responsible for disturbing public order through his/her own behaviour. The response that is anticipated
from the neighbourhood in relation to his/her presence can also give cause to take action. 553
In order to be able to take adequate steps if this is necessary, a mayor must, however, have access to
relevant information (see §3.6.3.2 below). On the basis of the information that is available, the mayor
must then make an assessment.
The mayor of Eindhoven banned a convicted sex offender (van der V.) from living in Eindhoven.
On the basis of this decision, Van der V. raised an objection and ultimately lodged an appeal at
the administrative tribunal. The administrative tribunal decided in his favour and judged that the
exclusion order imposed by the mayor constituted a disproportionate infringement of his freedom
551 See letter dated 4 June 2009 from the Minister of the Ministry of the Interior and Kingdom Relations
to the Lower House regarding research into the effectiveness of legal instruments in relation
to inconvenience and deterioration p.2-3, Parliamentary Papers II, 2009/09, 28 684 no.227: as soon as
the (imminent) disturbance is over, the order must be revoked, with reference to Administrative
Jurisdiction Department of the Council of State, 9 June 2004, AB 2005, 331. In principle, the order
must immediately counteract the disturbance, with reference to Administrative Jurisdiction Department
of the Council of State, 17 November 2004, AB 2005, 410. In the application of the exclusion
order, the statutory regulations may not be deviated from unless it appears from the competence
that space has been left for this – Article 172, paragraph 3 of the Municipalities Act does not provide
such space. In future, imposing the measure must comply with the requirements of subsidiarity and
proportionality.
552 See letter dated 4 June 2009 from the Minister of the Ministry of the Interior and Kingdom Relations
to the Lower House regarding research into the effectiveness of legal instruments in relation to inconvenience
and deterioration p.2-3, Parliamentary Papers II, 2009/09, 28 684 no.227.
553 Explanatory memorandum to the Decree of 22 June 2011, regarding the amendment of the Judicial Data
Decree, associated with the provision of judicial data to the mayor upon the return of former detainees
to society and reinforcing screening in the taxi sector.
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