Fight between rival motorcycle clubs in Sittard in 2015.

Attempted manslaughter (committed multiple times) by shooting from cafe at man's height at force majeure to members of other motorcycle club severely beating 3 members of defendant's motorcycle club, art. 287 Sr. Emergency defense, proportionality requirement.

Is 1 shooting with firearm in reasonable proportion to serious assault of 3 people by 15 to 20 people?

HR repeats relevant considerations from ECLI:NL:HR:2016:456 regarding proportionality requirement in case of emergency defense. Court ruled that although there was an instant and unlawful assault on the bodies of A, B and C, against which the defendant had a reasonable right to defend those persons, the defendant was not entitled to invoke emergency defense because the proportionality requirement had not been met.

In this respect the Court of Appeal has considered that the choice of the defendant to use a firearm as a means of defense was "in principle not unreasonable". However, the Court of Appeal has ruled that the manner of defense chosen by the defendant (by firing a projectile through a window with a firearm from a café at man's height, while there was a "fighting and thus moving group of people" right behind the window) was not in reasonable proportion to the seriousness of the assault, because the accused could reasonably be expected to have chosen a less drastic way of defense "in which it could be excluded that someone would be hit by a projectile", such as banging on the window and showing a weapon or going outside (through another door than the locked door) in order to threaten with a weapon and/or to fire a warning shot.

This judgment is, also in view of what has been stated above, not z.m. understandable. HR also takes into account that the court of appeal has established that the accused acted in defense of 3 persons who were abused in an excessive way by a force majeure of persons (about 15 to 20 members of a motorcycle club operating as a group), members of this group used weapons with which very serious injuries could be caused (such as a punching bag), during the fight o. m. the head of the person was stomped on, if the beatings were not stopped, there was an immediate danger that the 3 abused persons would be killed.m. was stomped on the head of a person, if the beatings were not stopped, there was an imminent danger that 3 persons who had been assaulted would suffer grievous bodily harm, possibly resulting in death, under these circumstances the suspect wanted to use a firearm as a deterrent, the suspect pulled out the firearm for this purpose, fired 1 shot with it and then put the firearm away again.

Follows annulment and referral back.