FREE LAW JOURNAL Volume 1, Number 2 (October 18, 2005)

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FREE LAW JOURNAL - VOLUME 1, NUMBER 2 (18 OCTOBER 2005) attack can be aimed at violating the property of a corporation, facility or some other organization, but also against state security and its constitution. Therefore, necessary defence exists not only in case of protecting from the attack on a legal property, but also in case of protecting from the attack on any property of other person (physical or legal) if that person is not capable of protecting himself from such attack. There are theories in criminal law 31 , according to which some cases of protecting from the attack are not considered to be necessary defence, but called “necessary help”. In any case, the scope and necessity of defence depend in the first place on the nature of legal property which is attacked or endangered. 3) Attack has to be illegal.-Attack is illegal when it is not based on some legal regulation and when it is not undertaken on the bases of some legal authorisation. Therefore, attack which is undertaken during exercising duty according to some legal authorisation, is not illegal and necessary defence in that case is not excusable. However, if an authorised person oversteps the limits of legal authorisation, then such situation is changed into illegal attack against which necessary defence is allowed. On the other hand, violation of necessary defence also changes into illegal attack, in which case the attacker has the right for defence (because in this case he is in the state of necessary defence). The right for necessary defence exists no matter if the attacker is conscious of illegality of his attack or not. Namely, it is enough that the attacked person objectively realises the attack. It is of no significance whether the attacker is guilty or not, as well as whether his act is punishable. Illegal attack could be undertaken by a child or by a mentally incompetent person. That means that necessary defence on necessary defence is not excusable. But, different situations in life can happen, when the attacked person anticipates the possibility of being attacked in certain place and time because of his relationship with some person. If in such situations anticipated attack is undertaken, it is 31 Vojislav Đurđić - Dragan Jovašević, Praktikum za krivično pravo, Knjiga prva, Opšti deo, Službeni glasnik, Beograd,2003.p.26-32 12 DRAGAN JOVAŠEVIĆ - HUMAN RIGHTS IN LIGHT OF NECESSARY DEFENCE IN CRIMINAL LAW OF SERBIA AND MONTENEGRO
FREE LAW JOURNAL - VOLUME 1, NUMBER 2 (18 OCTOBER 2005) considered as illegal. Even more controversial situation is when a person provokes attack. There is no dilemma if the attacked person had previously endangered someone’s integrity or property. The problem arises if such attack is manifested verbally or only with concluding acts which irritate, provoke or underestimate the attacker. Social component of the institute of necessary defence should be considered in such situations. Namely, necessary defence stands for protecting the rights from illegality, and because of that abuse of this institute is not excusable. If the attacked person had deliberately provoked the attack, so as to use it and violate the attacker or his property, than the attacked person has no right on necessary defence. Such cases are known as feign necessary defence 32 . 4) Attack has to be real.-Namely, it has to exist really in the outside world. It means that it is necessary that the attack has already started or it is imminent. Whether an attack exists or not, is a factual question which is being solved by court in each specific case. Typical example of real attack is endangering life or making physical injuries to a person. If there is no real attack, but the attacked person had a wrong or incomplete impression or illusion of its existence, there is no basis for necessary defence. In such case there is putative, imaginable or ostensible necessary defence. This defence does not exclude the existence of a criminal act, but it could be a ground for exclusion of the guilt 33 . Therefore, putative necessary defence represents, in fact, the lack of conscience of the attacked person about some real circumstance of the attack. That is, in fact, wrong impression and conviction that the attack aimed at violation of some property is real. This mistake could be related to the conscience about the illegality of the attack (when there is legal mistake). In other words, putative necessary defence is reduced to 32 Ljubo Bavcon, Alenka Šelih, Kazensko pravo, Splošni del, Ljubljana,1987.p.151 33 Zoran Stojanović, Komentar Krivičnog zakona SR Jugoslavije, Službeni list, Beograd, 1999.p.22-24 13 DRAGAN JOVAŠEVIĆ - HUMAN RIGHTS IN LIGHT OF NECESSARY DEFENCE IN CRIMINAL LAW OF SERBIA AND MONTENEGRO
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