Police use of force: when is it lawful and what can you do?

The Dutch police may use force, but only when the aim justifies it, when there is no lighter way to reach that aim, and when the force stays reasonable and moderate. If an officer goes beyond those limits, you can complain, claim compensation from the government and, where there is injury or death, the officer can be prosecuted.

Those routes run side by side and answer different questions. Criminal law asks whether the officer committed an offence. Civil law asks whether the government acted unlawfully and must pay for the loss. The complaint procedure asks whether the conduct was proper. Above all of them sits the European Convention on Human Rights, which requires an independent and effective investigation when the police cause death or serious harm.

What does Dutch law say about police use of force?

The power to use force comes from Article 7 of the Police Act 2012 (Politiewet 2012), and the detailed rules come from the Official Instruction (Ambtsinstructie). Force without a statutory power is always unlawful.

Under Article 7 of the Police Act 2012, an officer appointed to carry out the police task may use force in the lawful exercise of their duties. That is allowed only when the intended aim justifies it, taking into account the dangers that the force brings with it, and when the aim cannot be reached in any other way. Where possible, a warning must come first. The same article adds that the use of the power must be reasonable and moderate (redelijk en gematigd).

The statutory text is short, but it contains four ingredients that return in almost every case: a lawful aim, necessity, the absence of a lighter alternative, and moderation. If one of them is missing, the force is not covered by the power.

The Act itself does not say how each means of force may be used. That is set out in the Official Instruction for the police, the Royal Military Constabulary (Koninklijke Marechaussee) and other investigating officers. The government lays down this instruction by order in council on the basis of Article 9 of the Police Act 2012. For each means, such as handcuffs, pepper spray, the baton, the police dog, the electroshock weapon and the firearm, it describes when it may be used, how, with what warning and with which restrictions. The instruction has been revised several times in recent years, so the version in force on the day of the incident is the one that counts.

How does a court test whether force was lawful?

The court asks four questions: was there a legal basis, was force necessary, was it proportionate, and was there no lighter option. It judges the situation as the officer could reasonably see it at the moment of the decision.

The first question is legality. Did the officer have a statutory power to act? Without a power, force is unlawful, however good the intention was. The second is necessity. Was force really needed to carry out the police task, or could the situation have been brought under control without it? The third is proportionality. Was the force in reasonable proportion to the aim? A minor offence does not justify a heavy means. The fourth is subsidiarity. Was there a lighter alternative that would also have worked, such as talking, keeping distance or de-escalating?

An example to illustrate: a confused man on a railway platform is shouting and refuses to leave, but he does not physically threaten anyone. Using pepper spray or a baton straight away is then hard to justify, because necessity and subsidiarity are missing. If the same man walks towards bystanders with a knife and ignores orders, a heavier means may well fall within the limits, depending on how acute the threat is.

The court looks at the moment of the decision, not only at the outcome. What counts is what the officer could reasonably know, see and assess at that moment, not what everyone can see afterwards on calmly reviewed camera footage. That is no licence, however. A serious breach of proportionality or subsidiarity can mean that the officer was no longer acting in the lawful exercise of their duties.

That point matters for the person on the other side as well. Resisting an officer is an offence under Article 180 of the Dutch Criminal Code (Wetboek van Strafrecht, Sr) only if the officer was acting in the lawful exercise of their duties. If the stop or arrest itself was unlawful, resistance to it cannot be punished as resisting an officer. In a criminal case against you, the lawfulness of the police action can therefore be a defence in its own right.

Which means of force may the police use?

The Official Instruction builds up from light to heavy means. The heavier the possible consequences, the stricter and more specific the conditions.

At the light end are a physical hold and handcuffs. Then come pepper spray, the baton, the police dog and the electroshock weapon (taser). The firearm is the outer limit. Each step up requires a more serious threat, and each means has its own rules on warnings and on the people against whom it may not be used.

For the firearm, the Official Instruction lists the situations exhaustively. Examples are the arrest of someone who may reasonably be expected to use life-threatening violence immediately, and averting an immediate danger to life or of serious bodily harm. There is an important restriction: if the identity of the suspect is known and postponing the arrest does not create an unacceptable risk, the firearm should not be used. Before an aimed shot is fired, a warning must in principle be given, unless the circumstances reasonably do not allow it.

When does police violence become a criminal offence?

Unlawful force is not automatically a crime. Since 1 July 2022, an officer who culpably breaches the instruction on the use of force, causing injury or death, commits a separate offence under Article 372 of the Criminal Code.

Before that date, an officer whose force had serious consequences was assessed like any other citizen, against the offences of assault or manslaughter. The question was then whether a ground of justification applied, such as acting to carry out a statutory provision under Article 42 of the Criminal Code.

The Act on the use of force by investigating officers (Wet geweldsaanwending opsporingsambtenaar, Bulletin of Acts and Decrees 2021, 233) changed this system. Article 42 of the Criminal Code now states expressly that an officer who uses force in the lawful exercise of their task and in accordance with their instruction on the use of force is not punishable. That instruction is defined in Article 90novies of the Criminal Code as the generally binding rules, given under the Police Act 2012 and the Special Investigating Services Act, that tell the officer how to use force.

The new Article 372 makes it an offence for an officer to act in breach of that instruction through their own fault. The maximum penalty depends on the consequence. If the breach causes bodily injury, the maximum is one year in prison or a fourth-category fine. For serious bodily injury it is two years, and for death three years, in each case alternatively a fourth-category fine. What has to be proved is not intent to injure, but a culpable, significant error in applying the instruction. The legislator’s idea is that professional use of force in the course of duty should be framed differently from arbitrary violence by a citizen. Where an officer acts with intent, the ordinary offences of assault and manslaughter remain available. Prosecutions of officers for force used on duty are heard exclusively by the District Court of Midden-Nederland (Article 2(3) of the Code of Criminal Procedure).

The procedure has changed too. After an incident involving force, the public prosecutor can first order a fact-finding investigation under Article 511a of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering, Sv). That investigation looks at whether the officer acted in accordance with the instruction. The officer is therefore not automatically treated as a suspect. Only if there are indications that the instruction was breached does the question of prosecution arise.

Who investigates police violence?

When police force leads to death or serious injury, the National Police Internal Investigations Department (Rijksrecherche) usually investigates, under the authority of the Public Prosecution Service (OM). The police should not investigate their own use of force.

That principle avoids any appearance of partiality. The independence of the investigation is a legal requirement in its own right, and the European Court of Human Rights sets strict standards for it. A sensitive point remains: the Rijksrecherche falls under the Public Prosecution Service, which works closely with the police every day. Whether the investigation was sound is therefore as much a legal question as whether the force itself was allowed.

If the Public Prosecution Service decides not to prosecute, a directly interested party, such as the injured person or a close relative, can complain to the court of appeal under Article 12 of the Code of Criminal Procedure. The court of appeal can then order a prosecution. This complaint must in principle be filed within three months after you were notified of the decision not to prosecute.

What does the European Convention on Human Rights require?

Article 2 of the Convention protects the right to life and Article 3 prohibits inhuman or degrading treatment. Both articles also oblige the State to investigate serious police force effectively and independently.

Under Article 2, lethal force by the State is permitted only where it is absolutely necessary, for example to defend someone against an immediate danger to life. That has been the line since the judgment in McCann and Others v. the United Kingdom (1995). In that case the European Court of Human Rights also stressed the procedural side: the use of lethal force by the State must be followed by an effective, independent and prompt investigation. The State must not only refrain from killing unnecessarily, but must also seriously investigate what happened.

For force that is not lethal, Article 3 sets a sharp standard. In Bouyid v. Belgium (2015) the Grand Chamber held that any use of physical force against a person which has not been made strictly necessary by that person’s own conduct diminishes human dignity and is in principle a violation of Article 3. That explains why force against someone who is already under control is so hard to defend. Here too, an arguable complaint of ill-treatment by the police must be followed by an effective official investigation.

The Convention therefore works on two levels. The substantive question is whether the force was allowed. The procedural question is whether it was afterwards investigated effectively and independently. In cases about police violence, both questions often carry equal weight, and a flawed investigation can itself be a violation even if the force was justified.

How do you claim compensation after police violence?

You can bring a civil claim for damages based on an unlawful act (onrechtmatige daad) under Article 6:162 of the Dutch Civil Code (Burgerlijk Wetboek, BW). The question is not whether an individual officer is guilty, but whether the government acted unlawfully and must compensate your loss.

That difference matters, because the outcomes can diverge. A criminal case has a high threshold of proof and turns on the personal guilt of one officer. The civil court applies its own standard. An officer can therefore be acquitted while the civil court still finds the action unlawful. A claim is directed at the public body responsible for the officer’s actions, not at the officer personally.

The ordinary rules of Dutch damages law apply. Article 6:95 of the Civil Code distinguishes financial loss, such as medical costs and lost income, from other harm. Compensation for non-material loss, often called compensation for pain and suffering (smartengeld), is available only in the cases listed in Article 6:106, in particular physical injury, damage to honour or reputation, or harm to the person in another way. The court sets the amount on an equitable basis, and only loss that is sufficiently connected to the force can be attributed to it (Article 6:98 of the Civil Code).

Here lies an important practical hurdle. Under Article 150 of the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering, Rv), you must state and prove both the loss and the causal link with the force. For mental harm, a statement that you were badly frightened or sleep poorly is not enough. The Supreme Court (Hoge Raad) in principle requires concrete, objectifiable information, such as medical or psychological reports. Only where the nature and seriousness of the breach make the consequences obvious can the court do without further evidence.

Where a claim is mainly about bodily injury, we work together with a specialist personal injury lawyer; we focus on the legal assessment of the police action and any related criminal proceedings.

Watch the limitation period. Under Article 3:310 of the Civil Code, a claim for damages generally becomes time-barred five years after you became aware of both the loss and the party liable for it, and in any event twenty years after the event. For loss caused by injury or death, paragraph 5 of that article applies: the five-year period runs from awareness, without the twenty-year long-stop. You can interrupt the period with a written claim that clearly reserves your right to compensation.

Can the government argue that you were partly to blame?

Yes. The government will often invoke contributory fault (eigen schuld) under Article 6:101 of the Civil Code, which can reduce the compensation. It must then prove what you did that contributed to the loss.

The assessment has two steps. First, the court divides the loss according to the extent to which your conduct and the conduct of the police each contributed to it. Then it can correct that division for reasons of fairness, for example because the faults differ in seriousness.

Two points work in your favour. First, the burden of stating and proving contributory fault lies with the government, not with you. It must specify what you actually did, such as active physical resistance, an attack or an attempt to flee, and how that contributed to the loss. A general statement that you did not cooperate or looked for confrontation is not enough. Second, in cases of seriously disproportionate force, the fairness correction can limit a reduction sharply or even reduce it to nil. The fault on the police side then weighs more heavily, and the rule that was breached exists precisely to protect citizens against excessive force by the State.

How do you complain about police conduct?

You can file a complaint with the police about how an officer treated you. A complaint does not lead to punishment or compensation, but it can result in a finding that the conduct was improper.

The police first try to resolve the complaint in a conversation. If that fails, the complaint is handled formally, sometimes with advice from an independent complaints committee. If you are not satisfied with the outcome, you can turn to the National Ombudsman (Nationale ombudsman), who can investigate and give a judgment on whether the police acted properly. The ombudsman’s judgment is not binding, but the police take it seriously and it can support a later civil claim.

Do not wait too long. Under Article 9:8 of the General Administrative Law Act (Algemene wet bestuursrecht, Awb), an administrative body is not obliged to deal with a complaint about conduct that took place more than a year before the complaint was filed. Separately, the police can start an internal disciplinary procedure against the officer. That procedure concerns the officer’s employment and functioning; the police have no professional disciplinary tribunal like the ones that exist for doctors or lawyers.

One incident can therefore run along four tracks at once: criminal, civil, complaint and disciplinary. The outcomes can differ. An acquittal in the criminal case does not mean that the action was lawful under civil law or proper under the complaint procedure.

What should you do after an incident with the police?

Secure evidence quickly and have any injury documented by a doctor. Then decide which route suits your goal: prosecution, compensation, a finding of improper conduct, or a combination.

Evidence disappears fast. Write down what happened as soon as possible, including times, places, the number of officers and anything that was said. Ask witnesses for their contact details. Camera footage from shops, public transport or bystanders is often overwritten after a few days or weeks, so ask for it to be kept straight away. Have injuries examined and photographed, and keep all medical records, because they are the basis for any claim for non-material loss.

If you want the officer to be prosecuted, you can file a criminal report (aangifte). If the Public Prosecution Service decides not to prosecute, the three-month period for an Article 12 complaint starts. If you want compensation, send a written claim to the police that describes the incident and reserves your right to damages; this also interrupts the limitation period. If you mainly want recognition that you were treated wrongly, a complaint is the quickest route, keeping the one-year limit in mind. If criminal proceedings are pending against you yourself, for example for resisting an officer, the lawfulness of the police action should be raised in your defence.

What should you check as the person affected?

• Write down times, places, the number of officers and what was said on the day itself.
• Ask shops, public transport companies and bystanders in writing to keep camera footage before it is overwritten.
• Have injuries examined, photographed and recorded by a doctor.
• File a complaint with the police within one year (Article 9:8 Awb).
• File an Article 12 complaint within three months after you are notified that the officer will not be prosecuted.
• Send a written claim that reserves your right to compensation, to interrupt the five-year limitation period.

What should you check as an officer under investigation?

• Establish whether the prosecutor ordered a fact-finding investigation under Article 511a Sv or treats you as a suspect.
• Use your right to legal assistance in the fact-finding investigation (Article 27(3) Sv).
• Check which version of the Official Instruction was in force on the day of the incident.
• Record what you could see and know at the moment of your decision, because the court judges from that moment.

What can we do for you after police use of force?

Our criminal lawyers assist both citizens and officers.

• We draft and file your criminal report (aangifte) and follow up with the Public Prosecution Service.
• We file the Article 12 complaint with the court of appeal within the three-month period.
• We raise the unlawfulness of the police action in your defence against a charge of resisting an officer (Article 180 Sr).
• We assist officers during a fact-finding investigation under Article 511a Sv and before the District Court of Midden-Nederland.
• We send the written claim that interrupts limitation and coordinate with a personal injury specialist on the damages.
• We prepare your complaint to the police and the National Ombudsman.

Summary

• The police may use force only when the aim justifies it, no lighter means will do, and the force stays reasonable and moderate (Article 7 Police Act 2012).
• The court tests legality, necessity, proportionality and subsidiarity, judged from the officer’s position at the moment of the decision.
• Since 1 July 2022, a culpable breach of the instruction on the use of force causing injury or death is an offence under Article 372 of the Criminal Code.
• You can claim compensation, including for non-material loss, under Articles 6:162 and 6:106 of the Civil Code, but you must prove the loss and the causal link.
• A complaint, a criminal report and a civil claim can run side by side and each has its own deadline.

Frequently asked questions