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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
of proportion between property which is endangered by occurred danger and property which is violated
during elimination of such danger, is very important for the existence of extreme necessity.
VIOLATION OF EXTREME NECESSITY
If a perpetrator, during eliminating danger for his own or someone else’s legal property, oversteps the
limit of extreme necessity which was set under condition that caused harm is not greater than threatening
harm, there is violation or excess of extreme necessity. Therefore, violation of extreme necessity exists
when a person eliminates danger from a legal property and during that action violates someone’s property
which is of higher value or greater significance than the property being protected.
An act committed in violation of extreme necessity is a criminal act and a person who committed it is
responsible according to general principles of criminal law. Most often violation of extreme necessity
happens in situations when a person who eliminates danger is not in a position to estimate values of both
legal properties and the level of excusable action when eliminating danger and causing harm to one’s legal
property.
But, not only is in practice very difficult do determine whether a criminal act is punishable, whether it was
committed out of extreme necessity and whether extreme necessity is violated, but the criminal-legal
theory has no definite attitude about where the limits of extreme necessity are. Some authors say that
violation of extreme necessity cannot represent the basis which has influence on mitigation or exemption
of sentence. Namely, an act committed out of extreme necessity, is committed towards properties of
innocent, disinterested people, and not against the property of the attacker. This is the case of collision of
two laws, so in this case, a perpetrator of such act should not be in favour when being punished, if such
act was committed in violation of extreme necessity.
Other theories say that violation of extreme necessity is especially significant in situations when a
perpetrator is under psychical pressure due to danger for his protected property. In such psychical
condition a perpetrator undertakes the action of eliminating danger, so in case of overstepping the limits
of extreme necessity, the sentence for a perpetrator can be mitigated. In fact, the problem of overstepping
the limit of extreme necessity is about the question whether caused harm is greater than threatening harm
and whether eliminating danger could have been done by less harm of one’s legal property than the harm
which was really done. Therefore, an act committed in violation of extreme necessity is a criminal act for
which the perpetrator is responsible, but, facultatively, there is a possibility of mitigating sentence.
But, there are cases where violation of extreme necessity results from specific psychical condition of the
perpetrator which was caused by occurred danger. This psychical condition can be of such intensity that it
causes the condition of temporary mental derangement. Such derangement can be of such intensity that it
can exempt criminal responsibility to some extent.
When violation of extreme necessity happened under special extenuating circumstances, court is
authorised to mitigate the sentence or to exempt the perpetrator from sentence (article 10. paragraph 3.
related to article 44. Basic Criminal Code and article 11. paragraph 3. related to article 45. Criminal code
of the Republic of Montenegro).
DR. DRAGAN JOVAŠEVIĆ - THE EXTREME NECESSITY IN CRIMINAL LAW OF SERBIA AND
MONTENEGRO
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