In criminal law, not every perpetrator of a criminal offense is punishable. There are grounds that exclude punishability, such as justification grounds (the act is not unlawful) and culpability exclusion grounds (the perpetrator is not blameworthy).
Main Categories
Defenses excluding criminal liability can be divided into two main types.
Difference between grounds
| Type | Effect | Result |
|---|---|---|
| Justification ground | Removes unlawfulness | Act not punishable |
| Culpability exclusion ground | Removes blameworthiness | Perpetrator not punishable |
Justification Grounds
A justification ground means that the committed act is considered justified and therefore not unlawful.
Necessity (art. 41 para. 1 Sr)
Defending against an imminent, unlawful attack.
- Imminent: the attack is ongoing or impending
- Unlawful: the attack is not permitted
- Proportional: the defense 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.
- Imminent danger to a greater good
- No alternative solution
- The chosen action is appropriate
Statutory rule (art. 42 Sr)
Acting on the basis of a statutory rule is not punishable, such as a police officer using force during a lawful arrest.
Official order (art. 43 para. 1 Sr)
Acting on the basis of a lawful official order excludes punishability.
Culpability Exclusion Grounds
With these grounds, the act is punishable, but the perpetrator cannot be blamed.
Insanity (art. 39 Sr)
No punishability if the act cannot be attributed due to a mental disorder or defect.
- Psychiatric evaluation required
- May result in TBS or other measures
Necessity excess (art. 41 para. 2 Sr)
Exceeding the limits of necessity due to intense emotions resulting from the attack.
Mental coercion (art. 40 Sr)
External pressure to which the perpetrator could reasonably not have resisted.
No fault (avas)
An unwritten ground: the perpetrator did everything to avoid the act.
Consequences
| Ground | Court decision |
|---|---|
| Justification ground | Discharge from prosecution (OVAR) |
| Culpability exclusion ground | Discharge from prosecution (OVAR) |
Invoking a Defense Ground
- The defendant must convincingly demonstrate the ground
- The judge assesses whether the conditions are met
- In case of doubt: benefit of the doubt for the defendant
Frequently Asked Questions in Utrecht
What if I am suspected of an offense?
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 held in pretrial detention?
Maximum 10 days without a hearing, after that a judge must approve. Pretrial detention has a limit.
What distinguishes a crime from a violation?
A crime is more serious and can lead to imprisonment, a violation often to a fine.
Am I entitled to legal assistance?
Yes, you always have the right to a lawyer, free if you cannot afford it.
Can I appeal a judgment?
Yes, you can appeal to the court of appeal.
Local Information Utrecht
Court: District Court Midden-Nederland, Vrouwe Justitiaplein 1, Utrecht
Legal aid: Juridisch Loket Utrecht, Catharijnesingel 55