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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
Danger which is not blameable should be considered differently from blameable danger which was
provoked deliberately or out of negligence. Danger which was provoked without guilt does not exclude
the right for action in extreme necessity.
For example, a person who provoked fire by throwing away a cigarette end on the place where someone
had previously spilled inflammable liquid, which this person didn’t know, and couldn’t know according to
real circumstances, has the right to eliminate this danger by violation of legal property of some other
person, especially if such act is of less significance then the property which is being saved. It is obvious
that blameable danger excludes the existence of extreme necessity 13 . All the more so, if a person provokes
danger in order to use it as means for committing some previously planned criminal act. This means that
the guilt should also include “blameworthiness” in some action.
CONDITIONS FOR ELIMINATING DANGER
The second element which is necessary for existence of the institute of extreme necessity, according to
provision article 10. Basic Criminal Code (with application in Republic of Serbia) and article 11. Criminal
code of the Republic of Monenegro, is eliminating danger. It is any action aimed at protection and
preserving legal property which is endangered. By eliminating this danger someone else’s legal property
is violated (provided that it is not the legal property of that person who provoked danger , because in that
case, there is necessary defence, if all the conditions provided by law are fulfilled). This violation has to
be of character of some criminal act provided by law. Eliminating danger should also fulfil certain
conditions provided by law, in order to be criminal-legally relevant.
1) Extreme necessity exists if danger could not be eliminated in some other way (e.g. by escaping or
calling for help), but only by violating legal property of some other person. This condition is not
otherwise necessary in case of necessary defence, where the attacker’s property is being violated, while in
case of extreme necessity the property of someone else, who is most often innocent, is being violated.
When judging whether this condition 14 is fulfilled or not, all the circumstances of a particular case have to
be taken into consideration, and according to them judge whether it was possible to eliminate given
danger in some other way, under given circumstances.
According to the character of danger, time and circumstances under which it occurred, it is being judged
whether this danger could have been eliminated in some other way. Eliminating danger has to be out of
extreme necessity, it has to be the only way, extreme solution to avoid violation of endangered property.
But, there are some opinions in theory, according to which this judgement has to be made according to
objective possibilities, where means, manner, time and other circumstances which were at disposal of the
perpetrator during the danger, as well as the choice of means and manner of eliminating danger, should be
taken into consideration.
This means that, in case of danger, perpetrator, in first place, has to rescue himself from danger by
escaping it, but if it is necessary that one’s legal property is violated by this action, it has to be spared in
the greatest possible way. It means that in certain case, the means manners and actions for eliminating
danger which in the smallest way violate one’s legal property, have to be used. Namely, court has to be
assured (which is a factual question) that, according to all circumstances under which the act was
13 Dragan Jovašević, Komentar Krivičnog zakona SR Jugoslavije sa sudskom praksom, Službeni glasnik, Beograd, 2002.p. 31
14 grupa autora, Komentar Krivičnog zakona SR Jugoslavije, Savremena administracija, Beograd, 1995.p.60
112
DR. DRAGAN JOVAŠEVIĆ - THE EXTREME NECESSITY IN CRIMINAL LAW OF SERBIA AND
MONTENEGRO