Grounds for exclusion of criminal liability in Dutch law

Grounds for exclusion of criminal liability (strafuitsluitingsgronden) are circumstances that make a proven criminal act go unpunished. Dutch law divides them in two. A justification (rechtvaardigingsgrond) removes the unlawfulness of the act itself: self-defence, necessity, acting under a statutory duty and acting on a competent official order, in articles 40 to 43 of the Criminal Code (Wetboek van Strafrecht, Sr). An excuse (schulduitsluitingsgrond) leaves the act unlawful but removes the blame attaching to this defendant: non-attributability because of a mental disorder, psychological duress, excessive self-defence, and the unwritten defence of absence of all blame (AVAS).

The practical consequence of either is the same. Under article 352 of the Code of Criminal Procedure (Wetboek van Strafvordering, Sv) the court finds the facts proven but discharges the defendant from further prosecution: ontslag van alle rechtsvervolging, usually abbreviated to OVAR. There is no conviction and no sentence. That is different from an acquittal (vrijspraak), which follows when the facts charged are not proven at all.

This guide explains each ground, what has to be established for it, why the difference between a justification and an excuse matters for the people who acted alongside you, and what actually happens after an OVAR, which is not always that the defendant goes home.

Where the defences sit in the court’s decision

A Dutch criminal court answers four questions in a fixed order, set out in article 350 Sv. Is the charge proven? If so, which offence does it constitute? Is the defendant punishable? And what sentence or measure should follow? Grounds for exclusion of criminal liability come in at the second and third of those questions, and which one they belong to determines the wording of the judgment.

A justification removes the unlawfulness, so the proven conduct is not an offence: the fact is not punishable (het feit is niet strafbaar). An excuse leaves the conduct unlawful but removes the blame, so the defendant is not punishable (de verdachte is niet strafbaar). In both cases the court declares the facts proven and pronounces an OVAR, but the reasoning differs, and so do the consequences.

Three consequences follow from the distinction, and they are not academic. A justification works for everyone involved in the same conduct: someone who assisted a person acting in lawful self-defence is likewise not punishable, because there is no unlawful act to participate in. An excuse is strictly personal, so a co-defendant who was not under the same duress can still be convicted. And where a defendant is discharged because the act cannot be attributed to them on account of a mental disorder, the court may impose a measure rather than a punishment, which is dealt with below.

There is a fourth point worth knowing. Occasionally the absence of unlawfulness or of blame is written into the definition of the offence itself, for instance where the charge requires that the act was committed wederrechtelijk. If that element fails, the outcome is not an OVAR but an acquittal, because an element of the charge has not been proven.

The four justifications

Dutch law recognises four written justifications, each in its own article of the Criminal Code.

Self-defence (noodweer), article 41 paragraph 1 Sr. Not punishable is the person who commits an act necessitated by the defence of their own or another person’s body, sexual integrity or property against an immediate unlawful attack. Four elements have to be present. There must be an attack, it must be unlawful, and it must be immediate, meaning under way or directly imminent; a fear of something that might happen later is not enough, and neither is retaliation once the attack has ended. The act must be a defence, so it must be directed at averting the attack. And it must be necessary, which brings in subsidiarity, meaning there was no reasonable alternative such as withdrawing, and proportionality, meaning the means used bore a reasonable relation to the attack.

Two qualifications recur in the case law. A defendant who deliberately brought the confrontation about, culpa in causa, may lose the defence. And what may reasonably be expected of a defendant is judged partly by who they are: a trained police officer or security guard is held to a higher standard than a bystander, which is why the rules on the use of force by the police are assessed separately, as our article on police use of force in court explains.

Necessity (overmacht in de zin van noodtoestand), article 40 Sr. Article 40 covers two situations, and this is the one that operates as a justification. A defendant faced with a conflict of duties or interests chooses to breach the criminal norm to serve a higher interest, and the choice is objectively defensible. The classic example is breaking a traffic rule to get a critically ill passenger to hospital. The court weighs the interests against each other and asks whether the breach was proportionate and whether nothing less drastic would have served.

Statutory duty (wettelijk voorschrift), article 42 Sr. A person who commits an act to carry out a statutory provision is not punishable. The provision must genuinely require or authorise the conduct, and the conduct must remain within what the provision permits; going further than the rule allows takes the defendant outside article 42.

Official order (ambtelijk bevel), article 43 paragraph 1 Sr. A person who acts on an order lawfully given by the competent authority is not punishable. The point that is most often stated wrongly is what happens when the order was not competently given. Article 43 paragraph 2 does not leave the subordinate without a defence: it excuses them if they believed in good faith that the order was competently given and the compliance fell within the scope of their subordination. That is an excuse, not a justification, and it therefore operates only for the person who held that belief.

Alongside these four, Dutch law recognises an unwritten justification: the absence of material unlawfulness. It was accepted in the veterinary surgeon case decided by the Supreme Court in 1933, where a vet deliberately exposed healthy cattle to disease to build immunity, technically breaching the livestock legislation while serving the very purpose that legislation pursued. The Supreme Court has applied it extremely sparingly since, and a defence built on it alone rarely succeeds.

The excuses

An excuse accepts that the act was unlawful and asks whether this defendant can fairly be blamed for it. Dutch criminal law rests on the unwritten principle that there is no punishment without blame, geen straf zonder schuld, and the excuses give that principle its practical shape.

Non-attributability, article 39 Sr. Since the entry into force of the Forensic Care Act on 1 January 2020 the provision reads that a person is not punishable who commits an act that cannot be attributed to them because of a psychological disorder, a psychogeriatric condition or an intellectual disability. The older formula about a defective development or pathological disturbance of the mental faculties has been replaced. Attributability is a legal judgment for the court, informed but not decided by the reports of a psychiatrist and a psychologist, and in serious cases by an observation at the Pieter Baan Centrum.

Psychological duress (psychische overmacht), article 40 Sr. This is the second face of article 40. Here the defendant acted under a pressure coming from outside which they could not reasonably have been expected to resist. The pressure must be external, so an internal compulsion belongs under article 39 rather than here, and the test is whether resistance could reasonably have been demanded of this defendant in these circumstances. Long-term abuse, a threat to a family member, and situations of exploitation are the settings in which the defence is most often argued.

Excessive self-defence (noodweerexces), article 41 paragraph 2 Sr. Where a defendant went beyond the limits of necessary defence, they are still not punishable if the excess was the immediate result of an intense emotion caused by the attack. Two links have to be shown: the emotion must have been caused by the attack, and the excess must have been caused by the emotion. A defendant who was frightened before the attack began, or who continued after the emotion had subsided, falls outside it. Article 41 paragraph 2 presupposes that there was an attack in the first place, so it does not rescue a defence that fails because no attack existed.

Absence of all blame (afwezigheid van alle schuld, AVAS). This unwritten excuse dates from the Milk and Water judgment of 1916, in which a trader was prosecuted for selling diluted milk that an employee had watered down without his knowledge, and the Supreme Court accepted that punishment presupposes blame. AVAS appears in three recurring forms: excusable mistake of fact, excusable mistake of law, typically where a competent authority gave incorrect information on which the defendant was entitled to rely, and the situation in which the defendant exercised all the care that could reasonably be demanded. It is argued most often against strict-liability style offences in regulatory and traffic matters, where the offence definition contains no requirement of intent or negligence.

What happens after a discharge from prosecution

An OVAR is not a conviction and it does not carry a sentence. It is registered in the judicial documentation, and its effect on a certificate of conduct (verklaring omtrent het gedrag) is assessed separately by the screening authority, which looks at the facts as well as the outcome. Where a defendant has been held in pre-trial detention and the case ends in an OVAR or an acquittal, compensation can be applied for under the statutory scheme, within a limited period after the case has become final.

The important exception concerns article 39. A discharge because the act cannot be attributed to the defendant does not necessarily end the matter. The court can impose a measure rather than a punishment: an order for treatment at the disposal of the state (terbeschikkingstelling, TBS) under article 37a Sr where the offence is serious enough and there is a danger to others, or, since 1 January 2020, a compulsory care authorisation issued by the criminal court under the Forensic Care Act, applying the framework of the Compulsory Mental Health Care Act. Diminished attributability, short of full non-attributability, is not a ground for exclusion at all; it is a factor in sentencing and can be combined with TBS.

Where the defence succeeds only in part, the effect is usually visible in the sentence rather than in the verdict. A partially accepted plea of duress or of provocation reduces the sentence, and in practice that is a more common outcome than a full discharge.

How the defence is built and where it goes wrong

A plea of self-defence or duress is won on the file long before it is argued at the hearing. The elements are factual, and the facts have to be secured while they still exist.

That means, first, a precise chronology. Who did what, in which order, over what number of seconds. Self-defence cases turn on the moment the attack began and the moment it ended, and a reconstruction written a month later is worth far less than one made the same week. Second, the evidence of the attack: injuries photographed and examined by a doctor, damage to clothing, camera images from the street or the premises before they are overwritten, telephone traffic, and the names of witnesses before they disperse. Third, in a case about attributability or duress, the medical and psychological history, which the defence has an interest in placing before the experts rather than leaving them to find.

The recurring mistakes are equally predictable. The first is confusing the two categories, and pleading an excuse where a justification is available or the reverse; it changes what has to be proved and what it does for anyone else involved. The second is asserting proportionality and subsidiarity instead of demonstrating them: a court will not assume that there was no escape route, and it will ask why a particular weapon was used. The third is raising the defence for the first time at the hearing, when the file could have been supplemented months earlier and the prosecution could have been asked to investigate a specific point.

The fourth is what happens in the first police interview. A defendant who denies the act altogether and later relies on self-defence has to explain the change, and that explanation is usually costly. Anyone who has used force in a confrontation should ask for a lawyer before being interviewed and should be advised about what to say and when. In an assault case that first hour frequently decides the rest of the proceedings; our article on assault charges in the Netherlands sets out how such cases run.

Finally, keep the burden of proof in view. Once a defence has been argued with sufficient substance, the court must respond to it in its judgment, and if the prosecution cannot exclude the version put forward, the defence succeeds. That is why the substance of what is put forward matters more than its label, and why a defence that is merely asserted is easily set aside.

Frequently asked questions about grounds for exclusion

Advice on a criminal case

Whether a ground for exclusion of criminal liability is available is rarely obvious from the charge alone. It depends on the sequence of events, on what can still be proved about it, and on which of the two categories the circumstances fall into. Those questions are worth putting to a lawyer at the earliest possible stage, and certainly before a police interview.

Law and More assists suspects and defendants at every stage of Dutch criminal proceedings, from the first interview through to appeal, including cases in which self-defence, duress or attributability is at issue. We act for Dutch and international clients and work in English. Please contact one of our criminal lawyers to discuss your position, or read further in our criminal law guides. Our page on the cost of a criminal lawyer in the Netherlands explains fees and subsidised legal aid.