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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
committed, danger could not have been eliminated in some other way. On the other hand, if it is
consolidated that caused danger could have been eliminated in some other way, and perpetrator thought
that there was no other way, then it is the case of putative, imaginable extreme necessity.
2) Eliminating danger has to be simultaneous with the existence of danger. This means that, in first place,
real danger, so danger which has already occurred or is imminent, should be eliminated. Eliminating
danger should last only while there is danger. When danger ceases, there is no more eliminating danger in
the sense of this general institute of criminal law.
3) When eliminating danger, a person has to be in special psychical relation to his act and resulting
consequences. Such psychical relation, in first place, has to be reflected in the aim of committed action
and in the motives for committing such action. This aim, in this case, is protection of one’s legal property
which is endangered by occurred danger. On the other hand, if a perpetrator violated one’s legal property
for some other reasons and motives which are not related to eliminating danger, then there is no extreme
necessity and such act is punishable.
4) Violation must not be of greater extent than the danger which was threatening. Extreme necessity can
exist only if saved property is of higher value than the violated one (sacrificed). Therefore, this institute
cannot exist if violated property is of greater significance than the one which was saved from danger. This
means that legal property by which violation danger is being eliminated has to be of less or at least of the
same value or significance as the property which is being saved 15 . Namely, in cases of extreme necessity,
in contrast to cases of necessary defence, proportion or equivalence between endangered and violated
property is important. it is completely understandable because, in cases of extreme necessity, there is
conflict between two rights. Complete and complex judgement of particular situation, where hierarchy of
properties which are protected and compared is important, is necessary for fulfilment of this condition.
It is considered that violation of material goods like: life, physical integrity, freedom, honour is
fundamentally greater than violation of material goods such as estate. Moreover, easier compensable
violations of properties of the same kind are less harmful. However, there is a question whether the
institute of extreme necessity can exists in case when there are two properties of the same value (e.g. two
lives-violator and perpetrator).
According to objective theory, society in this case has no reason to prefer one legal property to another,
and because of that it is completely indifferent and disinterested about the question of whose property will
actually be violated and whose will be saved. In case of conflict of two interests or two properties of the
same value, society has no excuse, but also no reason to give advantage to one of them, but still, criminal
law provides that there is extreme necessity in case when, during the elimination of danger, caused harm
is equal to threatening harm, considering psychical condition of the person, especially in case of danger
for some more significant legal property (e.g. life, body) 16 .
Comprehension, according to which extreme necessity also exists in case of conflict between two
properties of the same value, was introduced in criminal law of Serbia and Montenegro, by amendment of
Criminal code dating from 1959. Up to then, extreme necessity had only been related to violation of
properties of less value than the property which was saved by eliminating danger. Therefore, the existence
15 Ljubiša Jovanović, Dragan Jovašević, Krivično pravo, Opšti deo, Nomos, Beograd, 2002.p. 114
16 Nikola Srzentić, Aleksandar Stajić, Ljubiša Lazarević, Krivično pravo, Opšti deo, Savremena administracija, Beograd,
1993.p.143
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DR. DRAGAN JOVAŠEVIĆ - THE EXTREME NECESSITY IN CRIMINAL LAW OF SERBIA AND
MONTENEGRO