Not every person who commits a punishable offence is held criminally responsible. Dutch criminal law recognises exceptions such as justification grounds (the act is not unlawful) and grounds excluding culpability (the perpetrator cannot be blamed).
Main Categories
Defences excluding criminal liability can be divided into two main types.
Difference between grounds
| Type | Effect | Result |
|---|---|---|
| Justification ground | Removes unlawfulness | Act is not punished |
| Ground excluding culpability | Removes blameworthiness | Perpetrator is not punished |
Justification Grounds
A justification ground means that the committed act is considered justified and therefore not unlawful.
Necessity (art. 41 para. 1 Sr)
Defence against an imminent, unlawful attack.
- Imminent: the attack is ongoing or about to happen
- Unlawful: the attack is not permitted
- Proportional: the defence must not be excessive
- Necessary: escape was not a feasible option
State of necessity (art. 40 Sr)
Force majeure due to a conflict of interests where the most important interest prevails.
- There is imminent danger to a greater good
- No alternative solution possible
- The chosen action is proportionate
Statutory rule (art. 42 Sr)
Acting on the basis of a statutory duty is not punishable, such as a police officer using force during a lawful arrest.
Official order (art. 43 para. 1 Sr)
Execution of a lawful official order does not lead to punishability.
Grounds Excluding Culpability
With grounds excluding culpability, the act is punishable, but the perpetrator cannot be held responsible.
Imputability (art. 39 Sr)
A perpetrator is not punishable if the act cannot be imputed to him due to a mental disorder or defect.
- Psychiatric evaluation is required
- May result in TBS or other measures
Necessity excess (art. 41 para. 2 Sr)
Exceeding necessary defence due to intense emotions caused by the attack.
Psychological coercion (art. 40 Sr)
External pressure to which the perpetrator could reasonably not resist.
No fault (avas)
An unwritten rule: the perpetrator has done everything possible to avoid the act.
Consequences of excluding grounds
| Ground | Judge's decision |
|---|---|
| Justification ground | Discharge from prosecution (OVAR) |
| Ground excluding culpability | Discharge from prosecution (OVAR) |
Invoking excluding grounds
- The defendant must make the ground plausible
- The judge assesses whether the conditions are met
- In case of doubt: benefit of the doubt for the defendant
Frequently Asked Questions in Rijswijk
What if I am suspected of an offence?
You have the right to a lawyer, the right to remain silent and the police must explain your rights. Being suspected does not mean you are guilty.
How long can I be detained without trial?
Maximum 10 days, after that a judge must approve an extension. Pre-trial detention has a limit.
What distinguishes a crime from a violation?
A crime is more serious and can lead to imprisonment, while a violation is often settled with a fine.
Am I entitled to legal assistance?
Yes, you always have the right to a lawyer, free if you cannot afford the costs.
Can I appeal a judgment?
Yes, you can appeal to the court of appeal.
Court: District Court of The Hague (district)
Legal Aid Office: Legal Aid Office Rijswijk