Born human as object of criminal law protection: Differentiation from the fetus

Abstract

Unlike most other goods, criminal law protection of human life is absolute. While e.g. property is protected by criminal law only in a subsidiary manner (if civil law mechanisms prove insufficient), only criminal law provides the appropriate sanction for causing death. At the same time, human life is protected from birth to death. Although the basic crime through which the protection is accomplished is the crime of murder, there are numerous other crimes that result in death, e.g. in traffic or due to some generally dangerous actions (for example, as result of carelessly caused fire). A person's death can also occur due to medical errors. They are also imaginable during childbirth, which is why the moment of demarcation between the stage of the fetus and the born human is considered as a particularly important issue of life protection. Traditionally, in Serbian doctrine, this boundary marks the moment of the beginning of (regular) childbirth, or the opening of the uterus during a caesarean section. However, in recent years, in several different decisions, domestic courts advocated other criteria. The paper discusses these decisions, with the conclusion that it is not justified to abandon traditional standards in such an important segment of criminal law protection.