ABSTRACT
According to the Supreme Court of the Netherlands, unlawfulness generally has the broad meaning of 'violation of the law'. If someone is charged with an offence that was committed in self-defence, the offender will be discharged because the commission of the offence was not unlawful. In theory it is also possible, that a state of intoxication is of relevance in relation to the defence of absence of all culpability. One of the grounds for a discharge following this defence is 'excusable incapacity'. Within the tripartite structure, the acceptance of the defence of insanity will lead to a discharge. On the other hand it will be clear that in many cases mistakes of law can be said to be inexcusable, because the defendant should have had better knowledge of law of self-defence. Dutch case law gradually showed an expansion of the defence through the recognition of several different grounds for absence of 'all' culpability, among which 'mistake of fact' was first.
