People are regularly summoned in the Netherlands for using violence against another person. The defence that self-defence was involved is then also regularly put forward. This defence is often rejected because there was no question of self-defence. There is only an emergency defence situation if someone "commits an offence necessitated by the necessary defence of his own or someone else's life, honour or property against instant and unlawful assault". In such a situation, the accused is not punishable. Whether such a situation arises generates much debate! 

Necessary defence 

There is no emergency defence situation if the accused had a real choice to evade the situation. A person under attack does not always have such a choice. Sometimes he has his back against the wall and there is no room to escape. Sometimes the situation is so threatening to himself or others that fleeing is not a realistic option. This is the case when even fleeing would not remove the danger. Then even the judge understands that a counterattack is chosen. 

Culpa in Causa 

A self-defence defence does not succeed if, according to the court, someone has himself sought confrontation and provoked a violent reaction from the victim. Then the instigator himself is held responsible for the escalation. However, if an aggressive reaction from the subsequent victim was to be expected, but was not provoked, there may still be self-defence. 

Putative severe weather 

Sometimes a person uses violence because he imagined an imminent danger, when in reality there was no threat. This may be the case, for example, when someone grabs at his waistband in a threatening situation, when that person turns out not to be armed. However, this may frighten another person to such an extent that he uses force, which, as it would later turn out, was unnecessary. If such a defence is raised at trial, the court must examine whether the accused was reasonably entitled to believe that there was acute danger. 

Proportionality 

Of course, if it can be established that there is a situation where a person must defend himself, this does not mean that everything is permissible. The means of defence should be in reasonable proportion to the severity of the assault. If an assault consists of a punch, there is no understanding if a potentially fatal stab wound is inflicted in response. In late November last year, the Den Bosch Court of Appeal discharged suspects from all prosecution on the grounds of self-defence. In that case, someone had been shot dead after knives and glass were thrown in the direction of the suspect and his friends. According to the judge, there was no option but to shoot to defend the co-accused. 

Emergency excess 

Sometimes more force is used than necessary. Such excess is excusable only if the behaviour was the immediate consequence of a violent emotion resulting from the preceding assault. The dangerous emergency situation may even have ended by then. The legislator thus shows understanding that, in a dangerous situation, not everyone manages to keep a cool head. Out of panic or rising anger, the limits of necessary defence may be exceeded. This was the case, for example, in a case I handled this summer. Although the acute danger had passed, client went after the attacker out of anger. The violence that followed was not punished by the judge. The judge ruled that this action was a direct result of a violent state of mind (emotion) caused by an unjustified attack. These are exceptions to the rule that a citizen may not use violence among themselves. 

Active process attitude 

Although a person always has a right to remain silent, in self-defence cases it is often advisable to make a statement as early as possible. It benefits the credibility of the story. If someone tells only after a long time of silence that he acted as he did because there was a threat, the judge may consider this defence implausible. It is therefore important to discuss the story with a lawyer who understands the subject as soon as possible after the arrest. 

Mr. D.M. Penn