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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
Danger marks such situation in which, according to objectively existing circumstances, could be
justifiably assumed or predicted that violation of some legal property, disregarding the subject (physical
or legal person) to which it belongs, is imminent. Therefore, danger is the state where some legal property
is endangered and, according to circumstances of the particular case, there is imminent possibility of its
violation.
There are several kinds of this danger and it is almost impossible to determine in advance in which way
and manner they could be manifested in everyday life situations. Whether there is real danger of
endangering some legal property of a perpetrator or some other person is being judged according to
objective criteria of “reality of danger” in each specific case. Therefore, danger is the state where violation
of endangered property is imminent and unavoidable. Danger and possibility of endangering or violation
some legal property objectively exists, and it is a real category which results from everyday life and the
environment, and it is stated in the prognosis about possible further development of the situation which is
based on given circumstances of that situation 6 .
Certain conditions for the existence of danger, cumulatively provided by law, have to be fulfilled so that
the institute of extreme necessity in each particular case could exist. These conditions are:
1) Danger could be caused by man, animal, forces of nature (fire, water, earthquake) or objects. Therefore,
sources of danger could be very different. Human action, in the sense of creating danger as an element of
extreme necessity, should be differentiated from action in the sense of attack with the institute of
necessary defence. Here, human action was not aimed at provoking danger for some legal property of
other person, even more, there was no intention or aim in the conscience of a perpetrator. These are cases
of various incautious or careless handling with inflammable, poisonous or explosive materials, driving
power or vehicle, or during construction work, where danger for someone’s legal property is caused 7 .
Dangerous animals like dog, bull, ram, horse, wild animals can also cause danger for one’s legal property.
Forces of nature and natural disasters can also, suddenly and in great scope endanger properties of one
person, or, more often, more people and sometimes even society in general. A person that is in the state of
extreme necessity undertakes his duty which is aimed at eliminating or preventing this danger, by
imminent action on the source of the danger. In case when an object is the source of danger, in the sense
of institute of extreme necessity, it could be any device, machine or equipment which, during its use or
exploitation, causes danger. Such object, when affected by certain external cause or damage, becomes
extremely dangerous for people who use it.
2) Any legal property or legal interest of any legal subject can be threatened by danger. In contrast to
previous decisions, when extreme necessity was excused only in case of attack on life and physical attack,
present law provisions this kind of defence expand to all legal properties. Criminal code of Kingdom of
Yugoslavia from 1929. 8 , in article 25. explicitly provides the properties which could be defended in case
of extreme necessity: life, body, freedom, honour, estate, as well as any other property. Criminal
legislature in effect does not limit legal properties which could be protected in this way, but according to
their nature and character, they are only the most significant properties, most often life and physical
integrity 9 .
6 Miloš Babić, Krajnja nužda u krivičnom pravu, Banja Luka, 1987.p.82
7 Milić Tomanović, Nužna odbrana i krajnja nužda, Službeni list SRJ; Beograd, 1985.p.162
8 Mihajlo Čubinski, Naučni i praktični komentar Krivičnog zakonika Kraljevine Jugoslavije, Beograd, 1934. p. 94-95
9 Ljubiša Jovanović, Dragan Jovašević, Krivično pravo, Opšti deo, Nomos, Beograd, 2002. p. 114
DR. DRAGAN JOVAŠEVIĆ - THE EXTREME NECESSITY IN CRIMINAL LAW OF SERBIA AND
MONTENEGRO
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