Grounds for exclusion of criminal liability (strafuitsluitingsgronden) mean that you are not punished for a criminal act that the court finds proven. The court then discharges you from further prosecution (ontslag van alle rechtsvervolging, OVAR) under Article 352(2) of the Dutch Code of Criminal Procedure (Sv); there is no conviction and no sentence, but if the act cannot be attributed to you because of a mental disorder, the court can still impose a measure such as TBS.
Dutch law has two kinds of grounds. A justification (rechtvaardigingsgrond) removes the unlawfulness of the act; an excuse (schulduitsluitingsgrond) leaves the act unlawful but removes the blame. The written grounds are in Articles 39 to 43 of the Dutch Criminal Code (Wetboek van Strafrecht, Sr).
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How does the court assess a ground for exclusion?
The court answers four questions in a fixed order under Article 350 Sv: is the charge proven, which offence does it constitute, is the defendant punishable, and which sentence or measure follows. A justification comes in at the second question, an excuse at the third.
With a justification the proven act is not an offence (het feit is niet strafbaar). With an excuse the defendant is not punishable (de verdachte is niet strafbaar). In both cases the outcome is an OVAR, which differs from an acquittal (vrijspraak) under Article 352(1) Sv, where the facts charged are not proven at all.
Why does the difference between justification and excuse matter?
A justification benefits everyone involved in the act, while an excuse only benefits the person who meets its conditions. Someone who helped a person acting in lawful self-defence is not punishable either, because there was no unlawful act. A co-defendant who was not under the same pressure can still be convicted when only one defendant has an excuse.
Sometimes unlawfulness is an element of the offence itself, for example where the charge requires that the act was committed unlawfully (wederrechtelijk). If that element fails, the result is an acquittal rather than an OVAR.
Which justifications does Dutch law recognise?
There are four written justifications in the Criminal Code and one unwritten one from case law. Each has its own conditions.
Self-defence (noodweer), Article 41(1) Sr
You are not punishable if the act was necessary to defend your own or another person’s body, sexual integrity or property against an immediate, unlawful attack. The attack must be under way or directly threatening; fear of a later attack or retaliation after the attack has ended does not count.
The defence must also be necessary. Courts test subsidiarity (was there a reasonable alternative, such as walking away?) and proportionality (were the means in reasonable relation to the attack?). A defendant who deliberately provoked the confrontation can lose the defence. Police officers are assessed differently: under Article 42(2) Sr an official who uses force in the lawful performance of their duties and in line with the official use-of-force instruction is not punishable, as our article on police use of force in court explains.
Necessity (noodtoestand), Article 40 Sr
Article 40 Sr covers acts committed under force majeure (overmacht). One form is necessity: you face a conflict of duties or interests and break a criminal rule to protect a higher interest, and that choice is objectively justified.
A standard example is breaking a traffic rule to get a critically ill person to hospital. The court weighs the interests and asks whether a less drastic option was available.
Statutory duty and official order, Articles 42 and 43 Sr
Under Article 42(1) Sr you are not punishable if you commit an act to carry out a statutory provision; going beyond what the provision allows takes you outside the defence. Under Article 43(1) Sr the same applies to an act carried out on an official order given by the competent authority.
An order given without authority does not remove liability, unless the subordinate believed in good faith that it was given with authority and following it fell within the scope of their subordination (Article 43(2) Sr). That is an excuse, not a justification, so it only protects the person who held that belief.
Absence of material unlawfulness
Case law also accepts an unwritten justification: the act technically breaches a rule but serves the very interest that rule protects. The Supreme Court (Hoge Raad) accepted this in the 1933 veterinary surgeon case and has applied it very rarely since, so a defence built on it alone seldom succeeds.
Which excuses does Dutch law recognise?
An excuse accepts that the act was unlawful but asks whether you can fairly be blamed for it. Behind the excuses lies the unwritten principle of no punishment without blame (geen straf zonder schuld).
Non-attributability, Article 39 Sr
You are not punishable if the act cannot be attributed to you because of a psychological disorder, a psychogeriatric condition or an intellectual disability. This wording has applied since 1 January 2020, when the Forensic Care Act (Wet forensische zorg) entered into force.
Attributability is a legal judgment by the court. It relies on reports by a psychiatrist and a psychologist and, in serious cases, an observation at the Pieter Baan Centrum, but the court is not bound by them. Diminished attributability is not a ground for exclusion; it affects the sentence.
Psychological duress (psychische overmacht), Article 40 Sr
This is the second form of force majeure in Article 40 Sr. You acted under external pressure that you could not reasonably have been expected to resist.
The pressure must come from outside; an internal compulsion belongs under Article 39 Sr. The defence is most often raised after long-term abuse, threats against a family member or exploitation.
Excessive self-defence (noodweerexces), Article 41(2) Sr
Going beyond the limits of necessary defence is not punishable if it was the immediate result of an intense emotion caused by the attack. Two links must be shown: the attack caused the emotion, and the emotion caused the excess.
The defence requires an attack in the first place. If there was no immediate unlawful attack, Article 41(2) Sr does not help either.
Absence of all blame (AVAS)
This unwritten excuse goes back to the Supreme Court’s 1916 Milk and Water judgment, in which a trader was prosecuted for milk that an employee had watered down without his knowledge. It covers an excusable mistake of fact, an excusable mistake of law (for example relying on wrong information from a competent authority), and having taken all the care that could reasonably be demanded.
AVAS is raised most often in regulatory and traffic cases, where the offence does not require intent or negligence.
| Ground | Legal basis | Type | Core requirement |
|---|---|---|---|
| Self-defence (noodweer) | Article 41(1) Sr | Justification | Immediate unlawful attack, necessary and proportionate defence |
| Necessity (noodtoestand) | Article 40 Sr | Justification | Conflict of duties resolved in favour of the higher interest |
| Statutory duty | Article 42 Sr | Justification | Acting to give effect to a statutory provision, within its limits |
| Competent official order | Article 43(1) Sr | Justification | Order lawfully given by the competent authority |
| Incompetent official order | Article 43(2) Sr | Excuse | Good-faith belief in competence, within the scope of subordination |
| Non-attributability | Article 39 Sr | Excuse | Psychological disorder, psychogeriatric condition or intellectual disability |
| Psychological duress | Article 40 Sr | Excuse | External pressure that could not reasonably be resisted |
| Excessive self-defence | Article 41(2) Sr | Excuse | Excess caused directly by an intense emotion caused by the attack |
| Absence of all blame (AVAS) | Unwritten, from case law | Excuse | No blame can be attached to the defendant |
| Absence of material unlawfulness | Unwritten, from case law | Justification | The breach served the purpose of the rule breached |
What happens after a discharge from prosecution?
An OVAR is not a conviction and carries no sentence, but it is recorded in the judicial documentation system. The Justis screening authority assesses its effect on a certificate of conduct (verklaring omtrent het gedrag, VOG) separately.
If you were held in police custody or pre-trial detention and the case ends without a sentence or measure, you can ask the court for compensation from the State under Article 533 Sv. The request must be filed within three months after the case has ended.
Can the court impose a measure after an OVAR?
Yes, where Article 39 Sr applies. Under Article 352(2) Sv the court can then impose a measure such as an order for treatment at the disposal of the state (terbeschikkingstelling, TBS) under Article 37a Sr, if the safety of others requires it and the offence is serious enough.
A partly successful defence usually shows in the sentence, not in the verdict. A plea of duress or provocation that is accepted in part tends to reduce the punishment, and in practice that outcome is more common than a full discharge.
How do you build a defence based on a ground for exclusion?
A plea of self-defence or duress is won on the file, long before the hearing. Under Article 359(2) Sv the court must give reasons if it rejects a defence that has been argued with sufficient substance, so the facts must be secured early.
- Write down a precise chronology: who did what, in which order and over how many seconds.
- Have injuries photographed and examined by a doctor, and keep damaged clothing.
- Ask for camera images from the street or premises quickly, before they are overwritten.
- Note the names and contact details of witnesses.
- In a case about attributability or duress, collect the medical and psychological history for the experts.
Avoid the common mistakes: confusing a justification with an excuse, asserting proportionality instead of showing it, and raising the defence only at the hearing. Ask for a lawyer before the first police interview: a suspect who first denies the act and later relies on self-defence has to explain the change. Our article on assault charges in the Netherlands shows how such cases run.
What can we do for you with a ground for exclusion of criminal liability?
Our criminal lawyers assist suspects from the first police interview through to appeal, in Dutch and in English.
- We advise you before your police interview on whether and how to raise self-defence or duress.
- We analyse the case file and identify which ground for exclusion fits the facts.
- We request additional investigation from the public prosecutor or the examining magistrate, such as camera images or witness interviews.
- We prepare the psychiatric and psychological reporting where attributability is at issue.
- We argue the defence at the hearing and, after an OVAR or acquittal, file the request for compensation under Article 533 Sv within three months.
Our page on the cost of a criminal lawyer in the Netherlands explains our fees, and our criminal law guides cover related topics.
Summary
- A successful ground for exclusion leads to a discharge from prosecution (OVAR) under Article 352(2) Sv: the facts are proven but there is no conviction.
- Justifications (Articles 40, 41(1), 42 and 43(1) Sr) remove the unlawfulness and also protect those who helped.
- Excuses (Articles 39, 40, 41(2) and 43(2) Sr, and AVAS) remove the blame and only protect the person concerned.
- After non-attributability under Article 39 Sr the court can still impose TBS.
- Secure evidence immediately and speak to a lawyer before the first police interview.
Frequently asked questions
What is the difference between an OVAR and an acquittal?
With an OVAR (Article 352(2) Sv) the court finds the facts proven but discharges you from prosecution, so there is no conviction and no sentence. With an acquittal (Article 352(1) Sv) the facts charged are not proven at all.
How many justifications does Dutch law recognise?
Four written ones: self-defence (Article 41(1) Sr), necessity (Article 40 Sr), acting under a statutory provision (Article 42 Sr) and acting on a competent official order (Article 43(1) Sr). Case law adds the unwritten absence of material unlawfulness.
Can I raise AVAS without a lawyer?
You can, but AVAS is unwritten and must be built on facts: an excusable mistake of fact or law, or proof that you took all reasonable care. Presenting that in a way the court must address under Article 359(2) Sv is work for a criminal lawyer.
Do I get compensation for pre-trial detention after an OVAR?
You can ask the court for compensation from the State under Article 533 Sv if the case ends without a sentence or measure. The request must be filed within three months after the case has ended.
