Excessive Self-Defence: Third-Party Problems
| Date | 01 December 2012 |
| DOI | 10.1350/jcla.2012.76.6.802 |
| Published date | 01 December 2012 |
| Author | Erik Gritter |
| Subject Matter | Supreme Court of the Netherlands, Criminal Division Hoge Raad Der Nederlanden, Strafkamer |
Supreme Court of the Netherlands,
Criminal Division
Hoge Raad der Nederlanden,
Strafkamer
Excessive Self-defence: Third-party Problems
Judgment of 11 January 2011, LJN: BP0265, NJ 2011/339
Keywords Self-defence; Excessive self-defence; Involvement in attack
by victim; Putative self-defence; Mistake of fact
The defendant stood trial for intentionally causing bodily harm (mis-
handeling, Article 300 Dutch Criminal Code (DCC)). According to the
charge, she had caused bodily harm to the victim by intentionally hitting
her in the face, pulling her hair and kicking her in the head and other
parts of her body. Before The Hague Court of Appeal, the defendant
claimed that the offence was committed in a situation of self-defence,
albeit that she had exceeded the limits of necessary defence. The victim,
however, was not the person who had initially attacked her. The defend-
ant stated that she had been attacked by another person who had hit
her, which resulted in such an outburst of emotion that she used
violence also on a third person present at the scene, namely the
victim.
The Court of Appeal did not accept the defence. It argued that there
were no indications that the victim (the third person) had used any
violence towards the defendant. As there had not been an immediate,
unlawful attack, performed by the victim, the Court of Appeal ruled that
there had not been a self-defence situation that could justify self-defence
or excuse excessive self-defence. Following her conviction, the defend-
ant appealed to the Dutch Supreme Court.
H
ELD
,
DISMISSING THE APPEAL
, the Court of Appeal’s rejection of the
claim of self-defence and excessive self-defence did not mean that the
Court of Appeal had applied the law incorrectly, nor that its reasoning
was incomprehensible, taking into account that it had not found that the
victim had acted violently towards the defendant and that the defence
plea had not stated in which way the victim was involved in the initial
attack. Also, the plea did not show that there had been ‘other acts’ that
might excuse the defendant.
C
OMMENTARY
Dutch criminal law offers a defendant the general defence of self-defence
(Article 41.1 DCC), if he commits an offence in a situation where this is
necessary to defend himself or another person, or his or another per-
son’s integrity or property, against an immediate, unlawful attack.1The
1 See for an overview of Dutch law regarding (excessive) self-defence, J. de Hullu,
Materieel Strafrecht. Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar
456 The Journal of Criminal Law (2012) 76 JCL 456–462
doi:10.1350/jcla.2012.76.6.802
To continue reading
Request your trial