Not every person who commits a punishable offence is also prosecuted criminally. In criminal law, there are grounds that exclude punishability, such as justifications (the act is not unlawful) and excuses (no blame can be attributed to the perpetrator).
Two Main Categories
The grounds that exclude punishment can be divided into two important categories.
The Difference
| Type | Effect | Result |
|---|---|---|
| Justification | Removes unlawfulness | The act is not regarded as punishable |
| Excuse | Removes blameworthiness | Perpetrator is not punished |
Justifications
A justification means that the committed act is considered justified and therefore not unlawful.
Necessity (art. 41(1) Criminal Code)
Defending against an imminent unlawful attack.
- Imminent: the attack is ongoing or about to happen
- Unlawful: the attack is not permitted
- Proportional: the defence is not excessive
- Necessary: escape was not a realistic option
State of Necessity (art. 40 Criminal Code)
Force majeure due to a conflict of interests where the paramount interest takes precedence.
- Serious and acute danger to a greater good
- No alternative solution
- The method used is proportionate
Statutory Rule (art. 42 Criminal Code)
Acting on the basis of a statutory rule is not punishable, such as a police officer applying appropriate force during an arrest.
Official Order (art. 43(1) Criminal Code)
Executing a lawful official order does not lead to punishability.
Excuses
With these grounds, the act is punishable, but no blame is attributed to the perpetrator.
Diminished Responsibility (art. 39 Criminal Code)
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 another sanction
Necessity Excess (art. 41(2) Criminal Code)
Exceeding the limits of self-defence due to intense emotions resulting from the attack.
Psychological Coercion (art. 40 Criminal Code)
An external pressure to which the perpetrator could not reasonably have resisted.
No Culpa at All (avas)
An unwritten ground where the perpetrator has done everything to avoid the act.
Consequences of Defences Excluding Punishment
| Ground | Judge's Decision |
|---|---|
| Justification | Discharge from prosecution (OVAR) |
| Excuse | Discharge from prosecution (OVAR) |
Invoking a Defence Excluding Punishment
- 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 Westland
What if I am suspected of a punishable offence?
You have the right to a lawyer, you may 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 without a hearing, after that a judge must approve extension. Pre-trial detention has a limit.
What distinguishes a crime from a misdemeanour?
A crime is more serious and can lead to imprisonment, while a misdemeanour is often settled with a fine.
Do I always have the right to a lawyer?
Yes, legal assistance is a right. If you cannot afford it, it can be provided free of charge.
Can I appeal a judgment?
Yes, you have the option to appeal to the court of appeal.
Court: District Court of The Hague (district)
Legal Aid Office: Juridisch Loket Westland