What to do in the event of breaking and entering: fight or flee?
The limits of self-defence in Dutch criminal law remain unclear for citizens and law enforcement agencies. Some issues that need to be discussed.
In a recent newspaper interview, a police officer gave quite a remarkable advice. In the event a house is broken into and the resident is at home, it is better for him to flee rather than to fight. The police discourage citizens from fighting: ‘This could lead to a spiral of violence. If robbers expect dwellers to fight back, they may decide to shoot them first to protect themselves.’
This advice is remarkable, because it is opposite to what politicians have said about self-defence in the recent past. They, including the Minister for Security and Justice and the Prime Minister, have stated that citizens should have more liberty to defend their homes (or businesses). Former MPs Teeven and Weekers initiated a bill in 2008 to change the law to give citizens the benefit of the doubt if they defend their homes (or businesses). Recently, MP Helder (PVV) announced a similar bill.
In 2010 the public prosecution service introduced the Directive on self-defence. It aims to treat citizens who have defended their homes or businesses in a better way. One important aspect of this directive is that citizens who defended their homes or businesses and used force in the process are not arrested, unless they used a gun or the force used was disproportionate. Both the Directive and the initiatives mentioned above not only show an understandable concern for citizens confronted with violence in their homes or businesses, they also seem to encourage citizens to use force when they are the victim of an attack. One could almost say that citizens would be foolish not to defend themselves.
From this perspective, it is understandable that politicians have responded rather peevishly to the police’s advice. The PVV even called it ‘ridiculous’. In response to questions, asked after the newspaper interview, the Minister for Security and Justice responded: yes, citizens who are able to do so are allowed to defend themselves proportionally, while at the same time the government is firmly committed to prevent and to fight robberies. This response shows a more secondary role for citizens. Earlier, we saw a more prominent role for citizens. This does not clarify the position of the citizen in cases of self-defence.
Despite all the rhetoric, it is becoming clear that what politicians have said and promised, is perhaps not so easy to accomplish and does not solve the issue of the limits of self-defence. I believe that we should focus on two points if we really want to clarify the limits of self-defence:
1) Is self-defence also a form of law enforcement?
2) How much value should be attached to the principle of subsidiarity?
1) Among Dutch legal scholars it is generally accepted that self-defence is a form of law enforcement. Defending one’s possessions must contribute to the general legal system and should not just concern private goods. Courts have to apply objective criteria when considering whether or not the action of a defendant counts as self-defence. Therefore they have to apply the reasonable man standard: if any normal citizen would have defended himself, then it is acceptable that the defendant did so. The reasonable man is not Hercules, but we expect citizens to show some restraint when being attacked.
For quite some time, this lead to a restrained interpretation of the self-defence law. In recent years, we have witnessed a more relaxed interpretation in favour of the citizen who defended himself. No equilibrium has been found yet. Although this is a case of casuistry, politicians could be of some use in finding this new equilibrium. Too often we have heard that citizens are encouraged to defend themselves and are then told not to. Politicians would do well to make an informed choice which could help to give (new) substance to the conditions of self-defence.
2) One of the legal conditions is the principle of subsidiarity: could the defendant have escaped the assault? Fleeing has long been the preferred option. Let the police solve it. Only where fleeing was no longer an option, was the citizen allowed to respond. The Dutch Supreme Court has clarified the principle of subsidiarity quite strongly in various rules. Fleeing is no longer required in general. But the rulings of the Supreme Court are not all that clear; a duty to retreat still exists in certain cases. Politicians, however, have focused on proportionality. The principle of subsidiarity forms the basis of all initiatives mentioned above, but no clear comments on this principle can be found in the explanation of their proposals (nor in the Directive). I would advise politicians to make a clearer statement on subsidiarity.
What could be done with the principle of subsidiarity? One possibility is to remove the principle in general (the ‘no duty to retreat’-rule in various American states), or only remove it in particular cases (e.g. burglaries in homes or businesses, as seems to be the basis of the initiative of Teeven and Weekers in what in the common law is called the ‘castle doctrine’), or to strengthen the subsidiarity requirement (‘Let the police solve it’). The latter would probably not be an option to politicians, but it would be a good idea to explain why this is not an option, especially considering the aforementioned views of the police.
It is clear that the ambiguity must end. An interesting task for the new government.