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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
THE EXTREME NECESSITY IN THE CRIMINAL LAW
OF SERBIA AND MONTENEGRO
by
DRAGAN JOVAŠEVIĆ PHD
INTRODUCTORY REMARKS
Extreme necessity represents general basis for exclusion of the existence of a criminal act 1 in all modern
codes from the oldest times. Therefore, an act committed in the condition of extreme necessity is not a
criminal act. Extreme necessity, according to provision article 10. in Basic Criminal Code (OKZ) 2 , former
Criminal Code of the Federal Republic of Yugoslavia exists when perpetrator committed an act in order to
eliminate imminent obvious danger which could not be eliminated in some other way and if caused
damage is not bigger than threatening damage. There is a similar provision in the Criminal code of the
Republic of Montenegro from December 2003. (article 11. KZ RCG) 3 .
In contrast to necessary defence which has been known in criminal law for a long time, extreme necessity
has been introduced to criminal legislature as a separate institute recently, and it is of no such wide
applicability in criminal law practice. The reason for this some authors find in the fact that, in this case,
danger for someone’s legal property comes from something else and not from a man, and in the fact that
this case is about conflict or collision of two laws, and not of law and injustice 4 .
From the legal definition it results that cumulative existence of certain conditions or assumptions is
necessary in each particular case for the existence of extreme necessity. There are two basic elements
which are necessary for the existence of such institute. They are: 1) a state of danger and 2) eliminating
danger. Only in case that all conditions provided by law, which exist on the side of danger and on the side
of eliminating danger, exist, can we say that an act was committed in extreme necessity.
CONDITIONS FOR THE EXISTENCE OF DANGER
Danger is the first element of extreme necessity in criminal law in Serbia and Montenegro . It actually
represents harm by which security of a property is endangered and which threatens to damage or destroy
it. It is actually every harm by which any legal property or legal interest of a person is endangered 5 . Every
possibility of violation or endangering someone’s legal property is considered as danger.
*Dragan Jovašević PhD, associate professor, Faculty of law in Nis, Serbia and Montenegro.
1 Dragan Jovašević, Leksikon krivičnog prava, Službeni list SRJ, Beograd, 2002. p.389
2 Dragan Jovašević, Komentar Krivičnog zakona SR Jugoslavije sa sudskom praksom, Službeni glasnik, Beograd, 2002. ,p. 27-
31
3 Službeni list Republike Crne Gore, Podgorica, No. 70/2003
4 Vojislav Đurđić, Dragan Jovašević, Praktikum za krivično pravo, Knjiga prva ,Opšti deo, Službeni glasnik, Beograd,
2003.p.32-41
5 Bora Čejović, Krivično pravo,Krivično pravo u sudskoj praksi, Knjiga prva ,Opšti deo, Beograd, 1985. p.86
DR. DRAGAN JOVAŠEVIĆ - THE EXTREME NECESSITY IN CRIMINAL LAW OF SERBIA AND
MONTENEGRO
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