Last updated on 27 October 2026

Being caught in the act (heterdaad) means that a criminal offence is discovered while it is being committed, or immediately afterwards. This is set out in article 128 of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering, Sv). In that situation anyone may arrest the suspect, including a private citizen (article 53 Sv).

Table of contents

Legal basis

Article 128(1) Sv gives the definition. What counts is the moment of discovery, not the moment of the offence. Under paragraph 2, the situation lasts no longer than shortly after the discovery. A person found hours later is usually no longer caught in the act.

Article 53 Sv covers arrest in the act. Paragraph 1 gives everyone the power to arrest. A private citizen must hand the suspect over to the police straight away, together with anything found on the suspect (paragraph 3). The police take the suspect to an assistant public prosecutor (hulpofficier van justitie) or public prosecutor (paragraph 2).

Outside this situation, arrest is more limited. Only the public prosecutor may then arrest, or the police in urgent cases. It must also concern an offence that allows pre-trial detention (article 54 Sv).

How it works in practice

After the arrest, the (assistant) public prosecutor decides whether the suspect must be held longer for questioning (article 56a Sv). Questioning follows, and then possibly police custody (inverzekeringstelling) or release.

Cases where someone is caught in the act are often easy to prove. The Public Prosecution Service (Openbaar Ministerie, OM) therefore often deals with them quickly, for example through fast-track proceedings (snelrecht) or a penal order (strafbeschikking). In shoplifting cases, a security guard often makes the arrest and then calls the police.

Common pitfalls

For citizens: the power to arrest does not allow unlimited force. You may only use the force needed to hold the suspect. Too much force can lead to a case against you, for example for assault (mishandeling, article 300 Sr). Self-defence (noodweer, article 41 Sr) only applies to an immediate attack.

You may also have the wrong person. Arresting the wrong person can make you liable. Hand the suspect over to the police straight away, and do not search or question them yourself.

For suspects: being caught in the act does not mean the evidence is settled. You still have the right to remain silent and to consult a lawyer before questioning. If the arrest was not lawful, for example because the situation had already ended, this may be a procedural defect (vormverzuim).

Our criminal lawyers assist suspects and victims in cases involving arrests in the act.