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

More documents

Recommendations

Info

FREE LAW JOURNAL - VOLUME 1, NUMBER 2 (18 OCTOBER 2005) if it was undertaken at time when attack has been imminent or when it began, but only up to the moment when it ceased. Attack is imminent when, from all the circumstances, it could be concluded that it was about to start, and when there was such danger that violation of legal property would occur in the next moment. The beginning of an act which could have direct consequences (death, physical injury, taking away, destroying or damaging property) is not crucial for beginning of the attack. Undertaken action which objectively represents imminent source of danger is essential. Whether an attack is imminent or not is a factual question which is being solved by court in each particular case. Only threat of imminent attack, without undertaking previous actions from which it can be concluded that the attack was imminent, could not be the reason for undertaking the act of defence. Defence of future attack is not excusable either, but still undertaking of some measures of precaution and some protective measures which start to work automatically in the moment when the attack starts (like various alarm systems connected with electrical circuit) is allowed. When the attack has started, defence could begin in the same moment. But, it often happens that the attacked person is not in position to react at the same time when the attack starts. In that case defence could be undertaken at any time during the attack. Continuity of defence has to coincide with the continuity of attack. When the attack has stopped, the right of the attacked on necessary defence stops, too. An attack was ended if legal property of the attacked person has been violated and when danger has been caused (as a kind of consequence in cases of criminal acts of endangering), and when the attacker has committed the action of attack, but due to accidental circumstances there was no violation of property of the attacked person. The right for necessary defence stops if the attack has finally and definitely ceased, but not in case when the attack was only temporarily ceased. Whether an attack has ceased or only temporarily ceased is a factual question which is being solved by court in each particular case. Attack has temporarily ceased if there is a possibility that it could be 16 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) continued any moment. 4) Defence has to be necessary for protection from attack.-It is the defence which exists in case when attack cannot be prevented from in any other way except for violating the attacker’s property. This means that violation of attacker’s property has to be necessary, unavoidable in order to protect from the attack, so the intensity of defence is correspondent to the intensity of the attack and the manner and means which were used by attacker. When judging this necessity of defence, the equivalence between intensity of attack and intensity of defence in each particular case should be taken into consideration. On the other hand, this proportion means that violation of the attacker’s property is proportional with value of the property of the attacked person which was saved in this way. Violation of necessary defence If an attacked person, during the protection from attack on his or someone else’s legal property, oversteps the limits of defence which is necessary for protection from that attack, there is violation or excerpt of necessary defence has prescribed in article 9. paragraph 3. Basic Criminal Code and article 10. paragraph 3. Criminal code of the Republic of Montenegro. This violation, according to intensity, exists when violated property of the attacker is of greater value then the property saved in this way. Another kind of violation of necessary defence, according to broadness, exists in case when the attacked person returns an attack which hasn’t even started or hasn’t been imminent, or if he/she continues violating the attacked property after the attack has finally and definitely stopped. In these cases court is authorised to mitigate the sentence for a perpetrator of criminal act in violation of necessary defence. In case when violation of necessary defence was due to strong irritation or freight of the attacked person, court is authorised to release a perpetrator of such criminal act from the legal sentence. 17 DRAGAN JOVAŠEVIĆ - HUMAN RIGHTS IN LIGHT OF NECESSARY DEFENCE IN CRIMINAL LAW OF SERBIA AND MONTENEGRO
Page 1 and 2: FREE LAW JOURNAL IN THIS ISSUE : Vo
Page 3 and 4: FREE LAW JOURNAL - VOLUME 1, NUMBER
Page 15: FREE LAW JOURNAL - VOLUME 1, NUMBER
Page 67 and 68:
FREE LAW JOURNAL - VOLUME 1, NUMBER
Page 69 and 70:
Page 71 and 72:
Page 73 and 74:
Page 75 and 76:
Page 77 and 78:
Page 79 and 80:
Page 81 and 82:
Page 83 and 84:
Page 85 and 86:
Page 87 and 88:
Page 89 and 90:
Page 91 and 92:
Page 93 and 94:
Page 95 and 96:
Page 97 and 98:
Page 99 and 100:
Page 101 and 102:
Page 103 and 104:
Page 105 and 106:
Page 107 and 108:
Page 109 and 110:
Page 111 and 112:
Page 113 and 114:
Page 115 and 116:
Page 117 and 118:
Page 119 and 120:
Page 121 and 122:
Page 123 and 124:
Page 125 and 126:
Page 127 and 128:
Page 129 and 130:
Page 131 and 132:
Page 133 and 134:
Page 135 and 136:
Page 137 and 138:
Page 139 and 140:
Page 141 and 142:
Page 143 and 144:
Page 145 and 146:
Page 147 and 148:
Page 149 and 150:
Page 151 and 152:
Page 153 and 154:
Page 155 and 156:
Page 157 and 158:
Page 159 and 160:
Page 161 and 162:
Page 163 and 164:
Page 165 and 166:
Page 167 and 168:
Page 169 and 170:
Page 171 and 172:
Page 173 and 174:
Page 175 and 176:
Page 177 and 178:
Page 179 and 180:
Page 181 and 182:
Page 183 and 184:
Page 185 and 186:
Page 187 and 188:
Page 189 and 190:
Page 191 and 192:
Page 193 and 194:
Page 195 and 196:
Page 197 and 198:
Page 199 and 200:
Page 201 and 202:
Page 203 and 204:
Page 205 and 206:
Page 207 and 208:
Page 209 and 210:
Page 211 and 212:
Page 213 and 214:
Page 215 and 216:
Page 217 and 218:
Page 219 and 220:
Page 221 and 222:
Page 223 and 224:
Page 225 and 226:
Page 227 and 228:
Page 229:
show all

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

Create successful ePaper yourself

Delete template?

Save as template?