EXCLUSION OF ILLEGALITY OF OFFENSIVE SPEECH GIVEN IN DEFENCE OF A RIGHT OR PROTECTION OF JUSTIFIED INTERESTS

Abstract

This scientific article analyzes the basic features and elements of the criminal offense of insult from the theoretical and normative aspect, with specific reference to the analysis of the conditions necessary for the application of the special legal ground for excluding illegality of offensive speech, stipulated in Article 170 (4) of the Criminal Code of the Republic of Serbia. Relying on the critical analysis of national criminal legislation and a brief review of national courts’ practice, the author points out to the contradiction of adopted legal standpoints when interpreting the disputed provisions, and emphasizes the importance of ensuring uniform and consistent court practice in this field. Proper and complete consideration of the criminal offense of insult, and especially the ground for excluding the illegality of the taken actions, stipulated in the provisions of Article 170 (4) of the Serbian Criminal Code, calls for precise interpretation of these provisions. Inadequate conduct of judicial bodies entails the possibility of convicting the perpetrator of the criminal offense of insult, even if the requisite conditions prescribed in the positive law have not been satisfied.