Not every person who commits a criminal offense is also prosecuted criminally. Dutch criminal law recognizes grounds that exclude punishability, such as justification grounds (the act is not unlawful) and culpability exclusion grounds (the perpetrator is not responsible).
Main Categories
Exculpatory grounds can be divided into two main types.
Differences
| Type | Effect | Result |
|---|---|---|
| Justification ground | Removes unlawfulness | Act is not punished |
| Culpability exclusion ground | Removes culpability | Perpetrator is not punished |
Justification Grounds
A justification ground makes the committed act lawful and thus not unlawful.
Necessity (art. 41 para. 1 Sr)
Defending against an imminent, unlawful attack.
- Imminent: the attack is ongoing or threatens acutely
- Unlawful: the attack is not permitted
- Proportional: the defense must not go too far
- No alternative: escape was not possible
State of Necessity (art. 40 Sr)
Overriding force as a result of a conflict of interests, where the most important interest takes precedence.
- Serious and acute danger to a greater good
- No other solution possible
- The means used are proportionate
Statutory Rule (art. 42 Sr)
Acting on the basis of a statutory rule is not punishable. Think of a police officer who applies appropriate force during an arrest.
Official Order (art. 43 para. 1 Sr)
Executing a lawfully given order from a competent authority is not punishable.
Culpability Exclusion Grounds
With culpability exclusion grounds, the act is punishable, but no culpability is attributed to the perpetrator.
Insanity (art. 39 Sr)
A perpetrator is not punishable if the act cannot be attributed to him due to a mental disorder or defect.
- A psychiatric evaluation is required
- May result in TBS or other measures
Necessity Excess (art. 41 para. 2 Sr)
Exceeding the limits of necessity due to intense emotions as a result of the attack.
Psychological Coercion (art. 40 Sr)
An external pressure from which the perpetrator could reasonably not escape.
No Culpability at All (avas)
An unwritten rule: the perpetrator has done everything in his power to avoid the act.
Consequences
| Ground | Judge's Decision |
|---|---|
| Justification ground | Discharge from prosecution (OVAR) |
| Culpability exclusion ground | Discharge from prosecution (OVAR) |
Invoking an Exculpatory Ground
- The defendant must prove that the ground applies
- The judge assesses whether the conditions are met
- In case of doubt: benefit to the defendant
Frequently Asked Questions in Leiden
What if I am suspected of an offense?
You have the right to a lawyer, the right to remain silent, and the police must inform you of your rights. Being suspected does not mean you are guilty.
How long can I be detained without trial?
Maximum 10 days, after which a judge must grant permission for extension. Pretrial 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.
Do I always have the right to legal assistance?
Yes, legal aid is a right. If you cannot afford it, it can be provided free of charge.
Can I reopen a case?
Yes, you have the option to appeal to the court of appeal.
Local Information in Leiden
Court: District Court of The Hague, Leiden Location
Legal Aid Office: Juridisch Loket Leiden, Stationsweg 46