Assisting in Suicide

Assisting in suicide includes two forms of appearance. Firstly, the seduction. In this case, the decision to commit suicide is evoked or an already made decision is reinforced. Secondly, the assistance. In this case, the suicide is practically promoted, for example by procuring a means, instructions for use or organisation of the framework conditions. It is imperative that the person concerned takes the last, deadly act themselves. If another person takes over the killing act, there is no § 78 of the Criminal Code, but a homicide.

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objective elements of the offence

The objective element describes the external aspect of the event. It answers the questions of who did what, with what means, what result occurred, and whether there is a causal link between the act and the serious injury that followed.

Steps of legal assessment

• Act: Seduction. Bringing about or reinforcing the decision to commit suicide.
• Act: Providing assistance. Any promotion of suicide, such as procurement of means, instruction, organisation.
• Result of the act: Suicide by one’s own hand or attempted suicide.
• Causality and attribution: The behaviour must have causally promoted the decision or the execution.

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Distinction from other offences

• § 75 of the Criminal Code – Murder: intentional killing of another human being without or against their will. The victim has no freedom of choice, the perpetrator kills by their own hand.
• § 76 of the Criminal Code – Manslaughter: Killing in an affective exceptional situation, triggered by strong emotional movement such as anger, fear or despair.
• § 77 of the Criminal Code – Killing on request: Killing at the express, serious and urgent request of the victim; the perpetrator acts actively himself to comply with the wish.
• § 78 of the Criminal Code – Assisting in suicide The victim carries out the killing act independently; the perpetrator only provides support or psychological assistance.
• § 80 of the Criminal Code – Negligent homicide: Death occurs as a result of lack of care, without the perpetrator wanting death or tacitly accepting it.

Assisting in suicide is distinguished from killing on request by the self-activity of the victim. It is crucial that death does not occur by the hand of the perpetrator, but by the action of the victim themselves. Criminal law recognises this distinction because the free decision to commit suicide shifts criminal responsibility, the supporting contribution remains punishable if the victim does not act freely or the perpetrator significantly influences the decision.

Living Will and § 78 of the Criminal Code

Since 2022, Austria has had a narrowly limited possibility through the Living Will Act (StVfG) to implement its own wish to die in a legally controlled manner. However, this is permitted exclusively through self-inflicted action by the person concerned.

The living will enables a person of full age and capable of making decisions who suffers from an incurable or permanent serious illness with persistent suffering to take a deadly preparation themselves, provided that

• two doctors (one of them with palliative care training) have confirmed the ability to make decisions and free responsibility,
• the order was drawn up in writing before a notary, a notary or a patient representative,
• and the preparation is issued only to the person concerned themselves.

There is no living will within the meaning of the law if

• another person administers the deadly agent,
• the action is not self-inflicted,
• or the desire to die was not expressed freely and permanently.

In all these cases, the boundary to assisting in suicide is exceeded if another person actively supports or brings about the death. The law allows exclusively assisted suicide, i.e. assistance to suicide, but not active euthanasia.
It remains crucial that the last, immediately fatal step is taken by the person concerned themselves.

Burden of proof and evaluation of evidence

The public prosecutor’s office bears the burden of proof for action, causality, attribution and the question of whether there was actually a self-determined action of the victim or whether the perpetrator significantly influenced the decision to act.

The court assesses the entirety of the evidence and examines in particular whether the free responsibility of the victim is unequivocally established. Unsuitable or statements obtained under pressure as well as illegally obtained evidence are not usable.

The accused person has no burden of proof, but may justify doubts about voluntariness or causality. It is sufficient to point out alternative courses or uncertainties.

Typical documents: medical records, communication records (messages, letters, e-mails), witness statements, digital metadata, expert opinions on mental stability, medication protocols.

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Practical example

• A caring relative procures a deadly drug for a terminally ill person at their request, which they take themselves.
• A friend helps to write a farewell letter and procures the means without administering it themselves.
• A doctor clarifies the effect of a preparation, knows about the suicide plan, but does not intervene.
• There is no assistance in suicide if the victim was not capable of making decisions, acted under pressure or the perpetrator brought about the decision himself.

subjective elements of the offence

Intent to support a voluntary suicide is required. The perpetrator knows and wants his action to promote or enable the suicide decision of another person.

An active action is not required; it is crucial that the perpetrator respects the independent decision of the victim.

If the perpetrator acts to bring about the decision in the first place, there is no real suicide, but a killing by another.

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Unlawfulness and justifications

Assisting in suicide is illegal if the perpetrator’s behaviour goes beyond merely supportive or organisational assistance or if the victim has not acted freely. The crucial question is whether the decision to die was made independently, permanently and uninfluenced.

The accompaniment of a suicide is not illegal if the person concerned carries out the act themselves, has the mental and psychological ability to make a free decision and no influence by third parties is recognisable.

As soon as the perpetrator actively brings about the decision, reinforces it or determines the course, he exceeds the legally permissible limit and fulfils the elements of § 78 of the Criminal Code.

The burden of proof for the existence of punishable assistance lies with the public prosecutor’s office. It must prove that the victim did not act independently or that the perpetrator exerted a causal influence. If there are reasonable doubts about free responsibility, the decision must be made in favour of the accused.

Culpability and mistakes

A prohibition error exists if the perpetrator mistakenly assumes that his behaviour is legally permissible. It only excuses if the error was unavoidable, i.e. no clarity about the punishability could be obtained despite reasonable inquiries.

Incapacity to be blamed exists if the perpetrator was not able to see the injustice of his action or to act according to this insight due to a mental illness, severe mental disorder or massive affective constraint. A mere emotional burden is not sufficient.

An excusable emergency is only conceivable in narrowly limited exceptional cases, for example if there was a present, otherwise unavoidable danger to body or life. Pity or moral motives do not constitute an emergency in the criminal sense.

Extinction of punishment and diversion

A procedure can end if the perpetrator voluntarily withdraws from the attempt or actively helps to prevent death.

Diversion is generally excluded, but can be examined in the case of low guilt content, humanitarian motive and lack of endangerment of third parties.

Sentencing and consequences

The court takes into account in particular,

• whether the decision to commit suicide was independent,
• whether the perpetrator exerted pressure,
• how strong his assistance was causal,
• and whether he showed subsequent rescue efforts.

Aggravating factors: Influence on unstable persons, selfish motives, repeated participation.
Mitigating factors: understandable motives of pity, emotional closeness, withdrawal, remorse.

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Penalty Range § 78 of the Criminal Code

• Imprisonment for up to five years.
• The penalty range is comparable to that of killing on request, as the self-determination of the victim plays a role in both cases. The limit lies in the self-inflicted execution of the act.

Imprisonment and (partially) suspended sentence

Section 37 StGB: If the statutory penalty provides for imprisonment of up to five years, the court should impose a fine instead of a short prison sentence of no more than one year.

Section 43 StGB: A suspended prison sentence may be imposed if the sentence does not exceed two years and the convicted person is deemed to have a favourable social prognosis. The probation period ranges from one to three years. If it is completed without revocation, the sentence is considered finally suspended.

Section 43a StGB: Partial suspension allows a combination of unconditional and conditional parts of a sentence. For prison terms of more than six months and up to two years, part of the sentence may be suspended or replaced by a fine of up to seven hundred and twenty day-fines if this appears appropriate in light of the circumstances.

Sections 50 to 52 StGB: The court may also issue instructions and order probationary supervision. Typical instructions concern restitution, therapy, contact or residence prohibitions, and measures aimed at social stabilisation. The objective is to prevent further offences and to promote lasting compliance with the law.

Jurisdiction of the courts

Subject-matter jurisdiction: Regional Court sitting with lay judges.
Local jurisdiction: Place of the act or the result; subsidiarily the offender’s residence or place of apprehension.
Appeal instances: Appeal to the Higher Regional Court; nullity appeal to the Supreme Court.

Civil claims in criminal proceedings

In the case of survived suicide, the person concerned can demand compensation for inadmissible influence or failure to provide assistance.

In the case of completed suicide, relatives can demand compensation for funeral costs, loss of maintenance or emotional suffering if the perpetrator has illegally influenced the decision.

Overview of criminal proceedings

• Start of investigation: Accused status in case of concrete suspicion; from then on full rights of the accused
• Police / Public Prosecutor: the public prosecutor directs the proceedings, the criminal police conduct the investigation; objective: dismissal of the case, diversion, or indictment.
• Interrogation of the accused: Instruction in advance; involvement of a defence lawyer leads to postponement; right to remain silent remains
• Inspection of files: at police/public prosecutor’s office/court; also includes evidence (as far as the purpose of the investigation is not endangered)
• Main hearing: oral taking of evidence, judgment; decision on private party claims

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Rights of the accused

• Practical access to files: investigation and trial records; access by third parties is restricted to protect the accused.
• Information & defense: right to notification, legal aid, free choice of defense counsel, translation assistance, and submission of evidence motions.
• Silence & counsel: right to remain silent at any time; if a defense attorney is requested, the interrogation must be postponed.
• Duty to inform: prompt notification of suspicion and rights; exceptions only permitted to safeguard the purpose of the investigation.

Your Benefits with Legal Assistance

A procedure for assisting in suicide is one of the most legally demanding areas of criminal law. The transition between permissible accompaniment to death and punishable assistance is narrow and depends crucially on whether the decision to die was made freely, permanently and uninfluenced.

Especially in cases with a medical, family or psychological background, the evidence is complex. Even small inaccuracies in expert opinions or statements can justify the accusation of aiding and abetting. An early legal representation is therefore essential in order to accurately record the actual processes and classify them correctly in law.

Our law firm

• carefully analyses whether there was a punishable influence or a merely accompanying support,
• examines whether the free responsibility of the victim was demonstrably given,
• assesses medical, psychological and digital evidence with regard to its admissibility and probative value,
• accompanies you through all phases of the investigation and main proceedings,
• and protects your rights with the necessary consistency towards the police, public prosecutor’s office and court.

An experienced criminal defence ensures that legally relevant boundaries are respected and human motives are classified objectively. This creates a defence strategy that presents your position in a legally sound manner, but without emotionalisation – with the aim of achieving a fair and objective assessment of your actions.

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Frequently Asked Questions – FAQ

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