In criminal law, not every perpetrator of a punishable offence is punishable. There are legal grounds such as justification grounds (the act is not unlawful) and culpability-excluding grounds (the perpetrator is not blameworthy) that exclude punishability.
Main Categories
Defences excluding punishment are divided into two main categories.
Differences
| Category | Effect | Result |
|---|---|---|
| Justification ground | Removes unlawfulness | Act not punishable |
| Culpability-excluding ground | Removes blameworthiness | Perpetrator not punishable |
Justification Grounds
A justification ground makes the committed act justified, so that it is not considered unlawful.
Necessary Defence (art. 41 para. 1 Sr)
The right to defend oneself against an imminent, unlawful attack.
- Imminent: the attack is current or impending
- Unlawful: the attack is not permitted
- Proportional: the defence must not be excessive
- Necessary: escape was not an option
State of Necessity (art. 40 Sr)
Overriding force due to a conflict of interests where the paramount interest prevails.
- Serious and acute danger to a greater good
- No alternative solution
- The response is appropriate and proportional
Statutory Rules (art. 42 Sr)
Acts performed on the basis of a statutory rule are not punishable, such as a police officer using force during a lawful arrest.
Official Order (art. 43 para. 1 Sr)
Executing a lawful official order makes an act not punishable.
Culpability-Excluding Grounds
With culpability-excluding grounds, the act remains punishable, but no guilt is attributed to the perpetrator.
Imputability (art. 39 Sr)
A perpetrator is not punishable if the act cannot be imputed to him due to a mental disorder or defect.
- Psychological or psychiatric examination required
- May result in TBS or other measures
Excess in Necessary Defence (art. 41 para. 2 Sr)
If the limits of necessary defence are exceeded due to intense emotions caused by the attack.
Mental Coercion (art. 40 Sr)
An external pressure to which the perpetrator could not reasonably have resisted.
Absence of Guilt (avas)
An unwritten rule: the perpetrator has done everything reasonable to avoid the act.
Consequences
| Ground | Judge's Decision |
|---|---|
| Justification ground | Discharge from prosecution (OVAR) |
| Culpability-excluding ground | Discharge from prosecution (OVAR) |
How to Prove a Defence Excluding Punishment
- The defendant must prove that a defence excluding punishment applies
- The judge assesses whether the criteria are met
- In case of doubt: benefit of the doubt to the defendant
Frequently Asked Questions in Zoetermeer
What if I am suspected of a punishable offence?
You have the right to legal assistance, 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 held in pre-trial detention?
Maximum 10 days without trial, after that a judge must grant permission. Pre-trial detention has a time 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 aid?
Yes, you always have the right to a lawyer. If you cannot afford it, this can be arranged free of charge, for example via the Juridisch Loket Zoetermeer.
Can I appeal a judgment?
Yes, you can appeal to the court of appeal against a judgment.
Relevant authorities: District Court of The Hague (district), Juridisch Loket Zoetermeer