Het schuldbeginsel in het Nederlandse strafrecht

In Dutch criminal law the guilt principle is considered one of the fundamental principles. This principle is partly reflected in the subjective components and the grounds for excluding criminal liability, especially in the unwritten defence ‘absence of all blameworthiness’ (afwezigheid van alle schuld). The central research question is whether the Dutch approach of the guilt principle should be adjusted in light of the history of Dutch criminal law and case law of the European Court of Human Rights (ECtHR). This study consists of three components: an exploration of the history of Dutch criminal law, a description of the developments relating to the liability of car owners for petty offences and an analysis of the case law of the ECtHR relating to art. 6 paragraph 2 of the ECHR, the presumption of innocence. Based on a comparison between the Dutch approach and the approach of the EctHR less opportunities for conducting a defence should be possible, like the exclusion of absence of all blameworthiness. This offers opportunities for efficient liability structures. On the other hand, the approach of the ECtHR to serious offences demands more attention for the realization of the guilt principle, especially where a significant custodial sentence is at stake. This does not exclude liability based on attribution without it being based on the establishment of intent. In response to the case law of the ECtHR it might be time to reconsider the question whether the guilt principle should be enshrined in the law to protect and clarify the position of the fault principle in the Dutch criminal law through codification of the defence absence of all blameworthiness.

Dissertation: http://hdl.handle.net/11370/333499f3-8a3b-4d31-b753-3e89d5ff0e2b