When a burglary turns into a confrontation, fear can quickly take over. But in Belgium, the law strictly frames what a resident may do when someone unlawfully enters their home.
The question of how far a homeowner can go to defend themselves is once again at the centre of public debate in Belgium. On Wednesday afternoon, the Liège Assize Court opened the trial of Yvan Dave, a 71-year-old resident of Ferrières accused of murdering 21-year-old Mayron Weibel during a burglary at his property in January 2020.
Shortly before 1 am on the night of the incident, Dave was awakened by noises outside. He shouted in an attempt to scare off the intruders, then fired three shots with his hunting rifle. Dave maintains that the first shot was accidental, fired in panic while handling the weapon, and that he aimed in the direction of the shadows only to frighten the intruders.
He told investigators he had armed himself for self-defence after having been targeted by burglars on two previous occasions. Charged with murder, the retired IT specialist denies any intent to kill.
The inviolability of the home
The case raises fundamental legal questions about legitimate self-defence, proportionality, and the use of firearms when faced with an intrusion at home.
It shines a spotlight on a cornerstone of Belgian law: the inviolability of the domicile. Enshrined in Article 15 of the Belgian Constitution, it guarantees that no one may enter a private home without the occupant’s consent, except in the following narrowly defined circumstances: a judicial warrant has been issued; there is a case of flagrante delicto (ie. someone is caught actively engaged in an offence); or in an emergency.
An unauthorised entry is therefore a criminal offence, commonly referred to as 'violation of domicile', regardless of whether a theft is carried out.
Legitimate defence: a strict exception
While the law protects the home, it does not automatically authorise violence against an intruder. The use of force is only justified under the doctrine of legitimate defence, governed by Articles 416 and 417 of the Belgian Criminal Code.
“This is a crucial point: defending property alone is not sufficient,” Jean-Christophe De Block, a Brussels-based penal lawyer, tells The Brussels Times.
“Belgian courts consistently hold that force cannot be justified solely to protect belongings if there is no serious threat to physical integrity. When there is a legitimate excuse - meaning there is imminent danger to a person - the resident is legally allowed to defend themselves. If the response is truly justified, the person may not be prosecuted at all, as self-defence is an exclusion of criminal liability.
"However, if the act is disputed, charges could be brought and examined in court. Belgian law distinguishes between murder, which involves intent to kill, and assault causing death, which occurs when someone injures another person and death results. For example, firing a gun to wound someone in self-defence could unintentionally cause death from blood loss, which would be classified as assault causing death if the act is found disproportionate.”
De Block adds: “If the reaction is disproportionate, or if there was no imminent danger outweighing the fact that the person was being burglarised, then they could eventually be prosecuted for murder. In that case, they should have known that by striking or shooting the person, the person could die and they accepted that risk, effectively intending to kill.”
When an intruder is armed
The legal assessment changes when an intruder threatens a resident with a weapon. Pointing a weapon constitutes a serious and immediate attack against a person, potentially endangering life. In such cases, legitimate defence is more readily recognised, as the danger is clear and direct.
“Even if a person is technically prosecuted and convicted for murder, the sentences handed down by judges or juries will not always reflect that,” De Block notes. “This is especially true when someone is committing a crime like a robbery. In fact, a legitimate excuse is a complete exclusion if we accept that the person acted in self-defence.
There are also mitigating circumstances, which are assessed by a judge or a jury. For instance, if it’s clear that the person was genuinely panicked — someone enters, they are frightened, maybe someone elderly — they might have already been burglarised before, had prior experiences. These are the kinds of things that are taken into account.”
Proportionality is key
Legitimate defence must always be proportionate. Even in burglaries, the lawyer stresses that the circumstances matter: “Did the burglar know someone was home when they heard a noise, or were they caught off guard? If they were surprised and got shot, that will rarely be accepted as legitimate defence. However, if the burglar was pointing a gun at someone, that’s completely different. It really depends on the factual circumstances, which can only be determined by an investigation.”
The limits of instinctive reaction
But during a burglary, it is difficult to know how to react in the heat of the moment. For an ordinary person without legal training, it can be extremely challenging to have the presence of mind and the right level of knowledge to properly consider the legal implications. In law, the key question is always whether the person acted as a “good head of the family” would. During such incidents, emotions run high, and people often react instinctively, making it very hard to think clearly.
“A lot of elements are taken into account,” explains De Block. “Was the person shot in the back? Did they have experience handling firearms? For example, if someone sleeps with a loaded gun on their bedside table because they are scared, and someone suddenly appears with a flashlight in their bedroom, their reaction will be judged differently.”
He adds: “If someone is three floors above, hears burglars, and instead of calling the police immediately grabs their gun and starts shooting, they had more time to think and it’s judged differently."
Black and white, but nuanced
Someone violating the law does not justify another person committing murder. “If it is a legitimate excuse, the person is not guilty at all. So it’s really black and white: guilty or not guilty. What’s different with firearms, is that the investigation will look at assault causing death or murder”, De Block concludes.
