Justifications and excuses

Question 1

What is the difference between justifications and excuses?

Answer 1

1. Excuses negate the blameworthiness of the actor:
   - Blameworthiness is concerned with the socio-ethical reprimand of the actor
   - Excuses only apply to the actor personally
2. Justifications negate the wrongfulness of the act:
   - Wrongfulness is concerned with the socio-ethical condemnation of the act
   - Justifications have a universal character, they apply to all the participants

Question 2

What are the requirements for self-defence? Civil law

Answer 2

1. Wrongful and imminent attack
2. Against a legitimate interest
3. Necessity
4. Proportionality

Question 3

What are the requirements for self-defence? Common law

Answer 3

Reasonableness requirement:

1. Necessity and proportionality
2. Assessed based on the danger the defendant took to be present
3. Does not have the defence of self-defence excess

Question 4

Self-defence requirements - Wrongful and imminent attack

Answer 4

1. The attack is imminent, have begun or is ongoing
2. That is applicable for the attack, or the danger, the interest need not be actually infringed yet, but mere fear is not enough

Question 5

Self-defence requirements - Against a legitimate interest

Answer 5

1. GR - Any individual legal interest
2. NL There is a list of interests
3. Can be interests of a third party

Question 6

Self-defence requirements - Necessity

Answer 6

1. Subsidiarity - Use the least intrusive mean
2. GR - The means must be capable of ending or hindering the attack
3. No ‘duty to retreat’

Question 7

Self-defence requirements - Proportionality

Answer 7

1. The test applied is not a proportionality test, rather to assess if the response was disproportionate - With regards to the strength of the attack, the dangerousness of the aggressor and the available means - Using the reasonable man standard but certain individual characteristics can also be taken into account (with regard to size, strength…)
2. The defendant is not required to make a perfect weighing of interests in an urgent situation

Question 8

What is self-defence excess?

Answer 8

1. Intensive excess - Excess with regards to proportionality in the degree of necessary force used
2. Extensive excess - The defendant continues after the attack has ended or reacts after the attack has ceased - Not accepted in GR but in NL there must have been a situation of self-defence to start with
3. The excess must have been the consequence of a specific state of mind directly caused by the attack:
   - NL - Applied strictly - Allows both feelings of fear, confusion… and feelings of anger and rage
   - GR - Attack does not need to be the predominant cause of the loss of control, but it must be co-causal - Only allows fear and confusion

Question 9

EN - Loss of control

Answer 9

1. Subjective test - Result of a severe loss of self-control and the loss of self-control was caused by things said or done of extremely grave character
2. Objective test - Using the reasonable man standard
3. Only partial defence

Question 10

What is necessity?

Answer 10

Actual danger to legal interests which can only be averted by infringing less valuable interests of third parties:

1. Imminent danger of legitimate interest:
   - In principle all legal interests
   - Imminent danger, not imminent attack - Broader than self-defence
   - Some time for reflection is allowed but the reaction must still be short-term
2. Subsidiarity
3. Proportionality

Question 11

What is duress?

Answer 11

The defendant is under such a pressure that he could not reasonably be expected to abide by the law:

1. Legitimate interest:
   - EN and GR - Life, limb or personal liberty of the defendant or a 3rd party which is close to him
   - NL - Not legal interests are excluded
2. Imminent danger:
   - Causal connection between the pressure and the offence
   - Compared to a reasonable person
3. Subsidiarity:
   - Capable of ending the danger but yet the least intrusive mean available
   - Must take into consideration the position of the defendant and prior fault
4. Proportionality:
   - The offence must not be disproportionate
   - EN - Does not accept duress in case of murder

Question 12

Insanity - EN

Answer 12

1. Mental disorder - Any disorder or disability of the mind
2. Impaired capacities:
   - The defendant committed the offence because (i) he did not know what he did was wrong because (ii) he suffers from a mental disorder
   - The defendant was unaware of the nature and quality of his acts or did not know what he was doing was wrong
3. No prior fault

Question 13

Insanity - NL

Answer 13

1. Mental disorder - Not as broad as GR
2. Impaired capacities - ‘He did this because he has a mental disorder’
3. No prior fault

Question 14

Insanity - GR

Answer 14

1. Mental disorder - Pathological disorder and arrested development (including states based on an extreme emotional state)
2. Impaired capacities:
   - The defendant committed the offence because (i) he did not know what he did was wrong because (ii) he suffers from a mental disorder
   - The mental disorder made him incapable of appreciating the unlawfulness of the actions or of acting in accordance with this appreciation
3. No prior fault

Question 15

What is diminished capacity?

Answer 15

1. The defendant’s capacities have been impaired but not to the extent of legal irresponsibility
2. Only applicable in GR and NL

Question 16

What about intoxication?

Answer 16

1. Was the intoxication voluntary or involuntary? If voluntary - Defence is unacceptable because of prior fault
2. What is the extent of the intoxication?
3. Usually the defendant will be held criminally liable with a less serious mens rea (recklessness or conditional intent)

Question 17

EN - Diminished capacity

Answer 17

1. The abilities to understand the nature of one’s conduct, to form a rational judgement and to exercise self-control are substantially impaired
2. The defendant must have killed because his mental faculties were substantially impaired as a result of an abnormality of mental functioning due to a recognised medical condition
3. Only partial defence