Imminent Attack in Necessary Defense, as Provided for in Albanian Criminal Law. Comparative Aspects

Abstract

In Article 19, of the Albanian Criminal Code, necessary defense is provided as one of criminal responsibility exceptional cases. In fact, this provision specifies that a person bears no criminal responsibility if he commits the act while being compelled to protect his or somebody else’s life, health, rights and interests from an unjust, real and imminent attack. This provision finds support in the ratio that is created between the option to protect a legal object which is before a potential and near affect and the latter on another object from which unlawfulness derives from. There are two human facts in front of each other related to the necessary defense, and they bear the same criminal responsibility. With this we must realize that we are dealing with facts which if they stay opposite to each other under a judicial – criminal assessment they are both presented as offense figures. In other words, unjust attack is the action which is not only hazardous for society but also illegal, provided as such by the criminal law and that the counterattack shall constitute an offense also provided by the criminal law. In this paper we will analyze the characteristics of one of the main conditions of the necessary defense, related to the imminent attack. Imminent attack is enriched in two forms. First attack has started and continues and secondly it is expected to certainly start. These notions are often not clear even for Albanian judicial practice. Imminent attack should be distinguished from future and completed attack. Albanian criminal law has provided the existence of imminent attack not only objectively, but also considering psychological or subjective criteria of the person, and this is supported by the Supreme Court practice. Standpoint between imminent attack, institute of attempt and waiver from the commission of an offense plays particular significance, and this paper will analyze their common characteristics.

DOI: 10.5901/ajis.2014.v3n6p241