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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
But, not every kind of danger for these legal properties is relevant according to the institute of extreme
necessity. It has to be the danger which has a character of social danger, and it has to be such danger
which imminently endangers some legally protected property. This danger can be aimed against legal
property of that person who eliminates such danger by his action, or against legal property of some other
physical or legal person. In this second case, there is necessary help.
3) Danger has to be simultaneous. This means that danger is imminent, or already in progress, and only up
to the point when danger is still in progress. Future, as well as finished danger, does not give the right for
action in extreme necessity. It would be unacceptable if perpetrator, during the flood or fire, waited for
some legal property to be destroyed, and then took measures for eliminating danger. Because in that case,
these measures would obviously be late. According to this, depending on the kind, character, source and
level of danger, perpetrator has the right to undertake some measures in order to eliminate danger which
has already taken place and which will obviously soon endanger some of his legal property.
But, in the theory of criminal law 10 , such opinions could be found, according to which extreme necessity
is allowed, if it is obvious that in several days there would be a hurricane or that the flood would break
levees and destroy a settlement, because it is considered that there is imminent danger of that. In
conditions when very complicated technical and technological systems and procedures are used, such
situations, according to which it is obvious that there would be some great harm, can also take place.
4) Danger has to be real. It should really exist in the real world-it should already be in progress or it
should be imminent. Danger is real not only when there is a realised possibility of violation or
endangering, when violation or endangering are already in effect, but also when it is imminent. This
means that it is objectively and with certainty assumed that the danger for one’s legal property is
imminent.
Imaginary, illusory danger does not give the right for action in extreme necessity. In that case there is so
called putative necessary defence. Namely, those are the situations when there is wrong or incomplete
conscious or knowledge about the circumstances which really existed and which would possibly justify
the action of perpetrator in extreme necessity. Then the perpetrator can only quote that he made a mistake
about the existence of danger, which represents a factual basis for mitigating the sentence, but there is no
extreme necessity. Therefore, not every danger is relevant according to the point of view of the institute of
extreme necessity. It has to be danger of certain level and certain gravity. It results that not any, especially
not an insignificant violation of legal property, can represent basis for the existence of this institute 11 .
5) Danger must not be blameable. Danger is not blameable if it occurred by accident and if a person in
danger is not to be blamed for it. If a person deliberately, or out of negligence, provokes danger for legal
property, that person cannot quote action in the state of extreme necessity, in case when eliminating such
danger he violates someone else’s legal property. This means that in case of blameable provoking danger
there is no extreme necessity, so that the person should be responsible for the criminal act committed
during eliminating danger. S. Zuglia 12 considers that the fact that the endangered person anticipated or
could anticipate that he could save himself or his legal property only by violation of someone else’s legal
property, is obviously not enough for blaming it.
10 Miloš Babić, Krajnja nužda u krivičnom pravu, Banja Luka, 1987.p.95
11 Dragan Jovašević, Tarik Hašimbegović, Osnovi isključenja krivičnog dela, Institut za kriminološka i sociološka istražianja,
Beograd, 2001. p. 125
12 Srećko Zuglia, Stanje nužde, Veliki Bečkerek, 1920.p.45
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DR. DRAGAN JOVAŠEVIĆ - THE EXTREME NECESSITY IN CRIMINAL LAW OF SERBIA AND
MONTENEGRO