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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
Whether conditions for the existence of extreme necessity are fulfilled, whether there is violation of
extreme necessity and whether all that is done under extenuating circumstances (of objective and
subjective nature) is a factual question which is being solved by board of judges in each particular case.
violation of extreme necessity is also a situation where a perpetrator himself caused danger, but out of
negligence, so, while eliminating such danger, violates some legal property. In that case also, mitigating
sentences (facultative) are provided by law.
DUTY TO EXPOSE TO DANGER
Extreme necessity is a general institute of criminal law. It could by used by all people, under condition
that all conditions, cumulatively provided by law, are fulfilled. This institute is applicable in case of any
criminal act aimed against any property. But, there is an exception to this general rule. Namely, there is no
extreme necessity (which in other words means that there is a criminal act for which the perpetrator is
responsible), if a person was obliged to expose to danger. Therefore, duty (obligation) to expose to danger
excludes the applicability of the institute of extreme necessity. If such person commits an act in order to
eliminate danger for some of his legal property (and this means his life and body as well), this person shall
be criminally responsible and punished for the committed act, though all conditions of extreme necessity
provided by law exist.
By provision article 10. paragraph 4. Basic Criminal Code and article 11. paragraph 4. Criminal code of
the Republic of Montenegro applicability of institute of extreme necessity for perpetrators who were in
duty to expose to danger is excluded, and it is necessary for the court to judge whether such duty to
expose to danger existed for those people, taking into consideration all circumstances in specific situation.
A person who is in duty to expose to danger cannot refuse carrying out such duty, according to the
institute of extreme necessity.
In Serbia and Montenegro there is a great number of people in organs, organizations and facilities who
cannot use this institution: military service, police, firemen, people who handle inflammable, poisonous,
radioactive and explosive materials, prison guards and others. Those are people who are obliged to
undertake actions and act according to specific rules, with necessary and high caution, because, by
accepting such professions, they also accepted a risk for being in such dangerous situations themselves.
Therefore, these people are obliged to sacrifice their own properties, even the most important ones, if they
are in danger while performing their jobs or taking care of confidential affairs and assignments. So, there
is a collision between their right to live (which is, as a natural law, absolute and inviolable) and duty for
exposing to danger and endangering life in certain situations.
In theory 17 , an idea according to which duty to expose to danger does not exist always and in each case,
but only then when, according to all circumstances of subjective and objective character, in certain case
can be concluded that such person is really obliged to expose to danger, is accepted. This means that duty
to expose to danger is not of absolute nature, as it could be concluded at first sight. In other words,
possibility of quoting extreme necessity for these people is not completely excluded, so there are
examples when firemen are not obliged to jump into fire at any price in order to extinguish fire, especially
when such chances are small, and danger, which they are exposed to very large.
17 Bora Čejović, Krivično pravo, Opšti deo, Službeni list , Beograd, 2002.p.179-181
DR. DRAGAN JOVAŠEVIĆ - THE EXTREME NECESSITY IN CRIMINAL LAW OF SERBIA AND
MONTENEGRO
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