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

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FREE LAW JOURNAL - VOLUME 1, NUMBER 2 (18 OCTOBER 2005) unavoidable mistake, in broader or narrower sense that the attacked person is in a condition of real and objectively needed necessary defence. When judging the existence of necessary defence or its violation, an act has to be seen on the whole, which means that it cannot be reduced and limited to only what had happened between the defendant and late (that is, the one who has suffered loss) immediately before the gun shot 34 . Conditions for the existence of defence Defence or protection from the attack is every action of the attacked person aimed at eliminating, preventing or protecting from the attack. By protection from the attack, the attacked person himself violates or endangers some legal property of the attacker. This violation or endangerment represents, in essence, formal characteristics of some criminal act from the federal or republic law (most often it is about a criminal act against life or physical integrity). Only in case when the attacked person, during the protection from attack, violates some property of the attacker, the existence of the institute of necessary defence is possible 35 . Necessary defence is not only the defence from the attack which endangers security of life of the attacked person, but every defence from present and illegal attack, if such defence was necessary for protection from the attack 36 . For the definition of needed defence, in the sense of penal law, it is absolutely necessary that the illegal attack is protected from by a punishable act towards the attacker. If such protection would not be considered as a punishable act, then it would be a situation beyond the area of penal law 37 . 34 presuda Vrhovnog suda Srbije Kž. 474/91 35 Gorgi Marjanovik, Krivično pravo, Opšt del, Prosvetno delo,Skopje,1998.p.183 36 presuda Vrhovnog suda Srbije Kž. 260/70 37 Đorđe Avakumović, Teorija kaznenog prava, Beograd, 1887-1889,p.279 14 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) Defence, as an element of necessary defence, as well, has to fulfil certain conditions in order to be of criminal legal relevance. These conditions are: defence consists of protection from the attack; defence has to be aimed against the property of the attacker; defence has to be simultaneous with the attack, and defence has to be necessary for the protection from attack. 1) Defence has to be consisted of protection from the attack.-If defence is not aimed at protection or prevention of attack, than it is not an element of necessary defence. Defence, in fact, depends on the existence of attack. The kind of defence has to be according to the attack. Attacked person is not obliged to retreat before the attacker. On the contrary, he is authorised to frustrate and disable the real illegal attack, in the aim of defence of legal property, by simultaneous legal attack on the attacker’s legal property 38 . 2) Defence has to be aimed against the attacker and against any of his legal property or legal interest.-These properties could be various, like: life, body, estate, honour, reputation, human dignity, though most often situation is when life of the attacker is violated. But, there are situations in life, when it is about the violation or endangering legal property and the attacker, as well as some other person. Then, in relation to the property of the attacker, the attacked person acts in necessary defence, and in relation to the violation of property of some other person, he acts in extreme necessity (if all the conditions provided by law are fulfilled). That means that the attacked person, in order to protect his property, cannot put to extreme risk legal properties of other people. But, if the attacker had used properties of other person while committing an illegal attack as means of that attack, then, in case of violation those properties, there is necessary defence 39 . 3) Defence has to be simultaneous with attack.-Defence is simultaneous 38 presuda Vrhovnog suda Srbije Kž. 1355/94 39 Draan Jovašević, Tarik Hašimbegović, Osnovi isključenja krivičnog dela, Institut za kriminološka i sociološka istraživanja, Beograd, 2001.p.50 15 DRAGAN JOVAŠEVIĆ - HUMAN RIGHTS IN LIGHT OF NECESSARY DEFENCE IN CRIMINAL LAW OF SERBIA AND MONTENEGRO
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