Necessary Defense and Exceeding the Necessary Defense in Serbian Legal System

What is a Necessary Defense?

Necessary defense is a basis that excludes the existence of a criminal offense, i.e. an act committed in self-defense is not a criminal act. Necessary defense is the defense that is necessary for the perpetrator to repel a simultaneous illegal attack from his property or the property of another person (in this case, we are talking about necessary assistance). As is often said, here comes a conflict between right and wrong. It is generally accepted that necessary defense has two elements: attack and defense, to which the conditions for the application of this institute are attached.

In order for there to be a necessary defense, it is necessary to meet certain conditions both on the side of attack and on the side of defense.

Attack conditions

The attack conditions are as follows:

  1. that the attack is a consequence of human behavior, which consists in action, and quite exceptionally also in inaction;
  2. that it is directed against some property protected by law (there is no limitation regarding the type and significance of the property);
  3. that the attack is illegal, i.e. contrary to legal norms, judging objectively, and not from the attacker’s point of view (he may not know that what he is doing is an illegal act) – this means that a necessary defense against a necessary defense or a last resort is not allowed;
  4. that the attack is simultaneous – simultaneity exists as long as the attack lasts, which means until it stops, and even when the attack is imminent. Simultaneity is also considered a situation when some defense mechanism is set up that is activated when the attack starts (eg electric current in the fence). If the person who defends himself exceeds the simultaneity (e.g. he defends himself from the attacker, and now he starts harassing him), there will be a so-called extensive excess, or the application of this institute will be impossible (the person who defended himself may be liable for a criminal offense);
  5. that the attack is real, which means that it exists and is serious. If the attack exists only in the thoughts of the person being defended, it is a so-called to the putative necessary defense which does not exclude illegality, but the rules of the institute of actual mistake are applied.

Defense conditions

The defense conditions are that:

  1. through the action of the defense, the existence of a criminal offense was realized (if a criminal offense was not committed through the defense, then it is pointless to apply this institute and exclude something that does not exist);
  2. directed towards the good of the attacker (if it was directed towards the good of a third party, then it could only be a matter of last resort);
  3. that it is necessary to repel an attack – it is necessary to have that defense which, in the specific case, could effectively repel the attack with the least damage to the attacker’s property.

Exceeding the Necessary Defense

Exceeding the limits of necessary defense when all the conditions of attack and defense have been met, except for the one that requires that the defense was absolutely necessary. It is the so-called intense excess, when the person who defends himself in this way commits a criminal act. Therefore, in the case of intense excess, the necessary defense is not a basis for excluding illegality, but only an optional basis for mitigating the penalty. Exceptionally, if the violation occurred due to strong irritation or panic caused by the attack, there may be grounds for exemption from punishment.

If the attacked person exceeds the limits of the defense, which is necessary to repel the attack, there is an excess of necessary defense. Exceeding the necessary defense exists, therefore, if the attacked person causes a much greater injury with his defense than was necessary to repel the attack. It exists if it inflicts a disproportionately greater injury on the attacker than the one that threatened him, if it continues with the defense even after the attack has stopped, i.e. repelled the attack and inflicts an injury that is unnecessary.

In the case of exceeding the necessary defense, there is a criminal offense for which, as a rule, the perpetrator is liable as for any other criminal offense. It is necessary that he has the conditions for criminal responsibility. Although the offense committed in excess of the necessary defense is liable according to the general regulations of the Criminal Code, the possibility is provided that the perpetrator of such an offense may be punished more leniently and even exempted from punishment.

Milder punishment for an act committed in excess of necessary defense is justified by the fact that the attacked person is usually not able to assess the limit to which defense is necessary, and where it stops due to the psychological state in which he is at the time of the attack. Milder punishment regularly occurs when, due to a state of excitement or fear, the intensity of the defense was greater than the intensity of the attack, and as a result there was a noticeably greater injury than the one that threatened, or when, due to the said state, the moment of the cessation of the attack was not observed, so the defense lasted a little longer, thereby causing a more serious injury compared to the one that was necessary.

The possibility that the perpetrator will be freed from punishment exists in the case when the limit of necessary defense was exceeded due to strong irritation or panic. Usually, these affective states also affect the scope of sanity, but the legislator does not link in this case either a lighter punishment or exemption from punishment for insanity or a reduction of sanity, but to the existence of a state of irritability or panic, regardless of the intensity of their effect on sanity, which undoubtedly exists. In the presence of these affective states, the court can limitlessly mitigate the punishment or release the perpetrator from the punishment, which will depend on the specific situation and the court’s findings on the effect of the aforementioned states on the perpetrator’s ability to defend himself.

Related Posts

Leave a Reply