Bodily Harm Resulting in Death

Bodily Harm Resulting in Death

Bodily harm resulting in death covers cases where an individual commits an intentional act of abuse or injury, and thereby – at least negligently – causes the death of the victim. The essence lies in the combination of intent regarding the bodily harm and a fatal outcome attributable to the act. It is not the brutality of the act that is decisive, but the conclusive proof that the act of injury causally and imputably led to death. Typical scenarios include severe blows, kicks, strangulation, or the use of dangerous tools, where complications (internal bleeding, organ failure, cerebral hemorrhages) resulting from the injury lead to death.

Bodily harm resulting in death refers to an intentional act of injury that negligently leads to the victim’s death; the fatal outcome is a consequence of the injury.

objective elements of the offence

The objective element describes the external aspect of the event. It answers the question of who did what with what, what result occurred, and whether a causal link exists between the act and the severe lasting consequence.

Steps of legal assessment

• Actus reus: physical impact (e.g., hitting, pushing, kicking, strangling, use of tools) or unlawful omission when a duty to act exists.
• Result: the death of the victim.
• Causality: The act of injury must be a conditio sine qua non for the death. In cases of omission, it must be examined whether death could have been prevented with a high degree of probability.
• Objective imputation: The death must realize precisely the legally disapproved risk created by the perpetrator (scope of protection). Atypical third-party causes or entirely independent victim behavior can break the imputation.

Peter Harlander
Harlander & Partner Rechtsanwälte „Schwere Körperverletzung steht und fällt mit der nachweisbaren Dauer- oder Lebensgefährdung; die bloße Heftigkeit des Angriffs genügt nicht.“

Distinction from other offences

For a better classification of bodily harm offenses in criminal law, the following gradation can be noted:

• § 84 StGB – Severe Bodily Harm:
  Covers injuries that are serious but generally curable. Health is significantly impaired, but permanent damage is not necessarily present.
• § 85 StGB – Bodily Harm with Severe Lasting Consequences:
  Concerns cases where the consequences of the injury remain long-term or permanent. This refers to incurable impairments, such as the loss of sensory organs, permanent disfigurement, or chronic ailments.
• § 86 StGB – Bodily Harm Resulting in Death:
  Covers those constellations in which the bodily harm leads to the death of the victim.

Thus, § 86 StGB represents the highest level of bodily harm offenses below a completed homicide; the difference from murder or manslaughter lies in the fact that the intent is directed not at death, but at the injury.

Burden of proof and evaluation of evidence

• Public Prosecutor’s Office: bears the burden of proof for the act, severe outcome, causality, imputation, and, if applicable, qualifying characteristics.
• Court: assesses the totality of the evidence and evaluates, in particular, the medical documentation. Evidence that is inadmissible or obtained unlawfully cannot be used.
• Accused: bears no burden of proof but may present alternative courses of events, raise doubts regarding causation, or invoke the exclusion of unlawfully obtained evidence.

Typical evidence: medical findings, imaging diagnostics (CT, X-ray, MRI), neutral witnesses, video recordings (e.g., CCTV, bodycam), digital metadata, expert opinions on the severity of the injury.

Practical example

• After a forceful punch followed by a fall, a cerebral hemorrhage occurs; the victim dies from the consequences.
• Strangulation leads to brain damage due to lack of oxygen, which proves fatal.
• Kicks to the upper body cause a ruptured spleen and internal bleeding, which prove fatal despite initial stability.
• A push down stairs resulting in a severe head injury can also directly cause death.
• Mere presence or a light touch without a demonstrable connection to the death is not sufficient.

subjective elements of the offence

The form of intent refers to the bodily harm (direct intent is sufficient, conditional intent is enough). Regarding death, negligence is sufficient: The perpetrator should have recognized and avoided, with due diligence, that the act could lead to death. Indications of negligence or foreseeability include the intensity and nature of the attack, the affected body region (head, neck, abdomen), the use of dangerous means, and the continuation of the attack despite recognizable danger.

Unlawfulness and justifications

• Self-defence: an imminent and unlawful attack; the defence must be necessary and proportionate. A retaliatory act after the attack has ended does not constitute self-defence.
• Excusing necessity: imminent danger; no less harmful means available; overriding interest.
• e.
• Gesetzliche Befugnisse: Eingriffe mit Rechtsgrundlage und Verhältnismäßigkeit (insbesondere Amtshandlungen, rechtmäßiger Zwang).

Burden of proof: The prosecution must demonstrate beyond reasonable doubt that no justification applies. The accused is not required to prove anything; concrete indications are sufficient to raise doubt (in dubio pro reo – when in doubt, for the accused).

Culpability and mistakes

• Mistake of law: excuses only if unavoidable (duty to inform oneself about the law).
• Principle of culpability: only those who act with fault are punishable.
• Lack of criminal responsibility: no culpability in cases of severe mental disorder, etc.; a forensic psychiatric assessment is required as soon as there are indications of such a condition.
• Excusing necessity: unreasonableness of lawful conduct in an extreme situation of coercion.
• Putative self-defence: a mistaken belief in a justification negates intent; negligence remains if provided for by law.

Extinction of punishment and diversion

Criminal proceedings may end without a conviction under certain conditions. Namely, criminal law provides for possibilities to refrain from punishment or to settle the proceedings by diversion if the accused accepts responsibility and the consequences of the act are compensated.

A withdrawal from the attempt leads to no penalty being imposed if the perpetrator voluntarily refrains from further execution or averts the success in time. The decisive factor is that the withdrawal occurs out of one’s own motivation and not merely because the plan would have failed anyway.

The diversion is a type of extrajudicial conclusion of criminal proceedings. It comes into consideration if the guilt is not to be classified as severe, the facts are clarified, and the accused is willing to make amends. Typical measures are the payment of a sum of money, community service, participation in probation, or a settlement with the victim.
In the event of successful diversion, there is no conviction and no entry in the criminal record. The proceedings are thus considered completed, and the person concerned can continue their life without a formal conviction.

Sebastian Riedlmair
Harlander & Partner Attorneys „Strukturiert belegte Schadensgutmachung und ein belastbares medizinisches Gutachten reduzieren das Strafrisiko spürbar und öffnen den Weg zur Diversion.“

Sentencing and consequences

The severity of a sentence depends on the offender’s culpability and the consequences of the act. The court takes into account the seriousness of the injuries, the degree of danger or recklessness of the conduct, and whether the act was premeditated or spontaneous. Personal circumstances are also considered, such as prior convictions, living situation, willingness to confess, and efforts to make amends.

Aggravating factors include multiple offences, particular ruthlessness, or attacks on defenceless persons.
Mitigating factors include a clean criminal record, a comprehensive confession, restitution, or contributory behaviour by the victim. A lengthy duration of the criminal proceedings may also have a mitigating effect.

Austrian criminal law applies the day-fine system for monetary penalties: the number of day-fines depends on the gravity of culpability, while the amount of each day-fine is based on the offender’s income. This ensures that a fine has an equally perceptible impact on all offenders. If the fine is not paid, it may be converted into a substitute term of imprisonment.

A prison sentence may be wholly or partially suspended if it does not exceed two years and a positive social prognosis exists. In such a case, the convicted person remains at liberty but must prove themselves during a probation period of one to three years. If all conditions are met, the sentence is deemed finally suspended.

Courts may also impose instructions, such as requirements for restitution, therapy, or contact restrictions, and may order probationary supervision. The aim is always to reduce the risk of reoffending and to promote a stable way of life.

Monetary Penalty – Day-fine System

• Range: up to 720 daily rates (Number of daily rates = culpability; Amount/day = financial capacity; min. €4.00, max. €5,000.00).
• Practical Formula: 6 months imprisonment ≈ 360 daily rates (Guideline, not a fixed scheme).
• Uncollectibility: Substitute custodial sentence (generally applies: 1 day substitute custodial sentence = 2 daily rates).

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 (due to the high penalty framework).
Territorial jurisdiction: Place of commission or place of outcome; subsidiarily, domicile/place of access.
Instances: Appeal to the Higher Regional Court; nullity appeal to the Supreme Court.

Civil claims in criminal proceedings

The victim can join (pain and suffering, medical treatment, loss of earnings, property damage). The joinder interrupts the civil law statute of limitations like a lawsuit – but only against the accused and only to the extent requested. Surcharge possible in full/in part; otherwise referral to civil court. Strategy: early structured compensation for damages increases chances for diversion and mild assessment.

Overview of criminal proceedings

• tart of investigation: formal suspect status upon concrete suspicion; from that point onward, full rights of the accused apply.
• 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: prior instruction on rights; involvement of a defense attorney leads to postponement; right to remain silent remains unaffected.
• Access to the case file: available at the police, public prosecutor’s office, or court; also includes evidence items (insofar as the purpose of the investigation is not jeopardized).
• Main hearing: oral taking of evidence and judgment; decision on civil claims joined to the criminal proceedings.

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

Proceedings for bodily harm resulting in death are among the most serious criminal charges. Not only is a high prison sentence at stake, but also an enormous personal and emotional burden. The line between negligent and intentional consequences of an act is often narrow, and even minor inconsistencies in expert opinions or testimonies can decide between guilt or acquittal. Early legal representation is therefore crucial to properly secure evidence, critically examine medical expert opinions, and precisely elaborate the actual sequence of events.

Our law firm

• comprehensively analyzes whether the death that occurred is actually attributable to the alleged act,
• examines whether a legally relevant causal link exists between the injury and the fatal outcome,
• supports you throughout the entire investigation and court proceedings,
• collaborates with experienced medical experts to avoid erroneous or premature findings,
• develops an individual defense strategy that considers both legal and forensic aspects,
• and resolutely safeguards your rights and interests vis-à-vis the police, public prosecutor’s office, and court.

Experienced criminal defense ensures that no premature conclusions are drawn from tragic consequences and that your actions are legally assessed in the correct context. This way, you receive a well-founded, objective defense tailored to your specific case.

Peter Harlander
Harlander & Partner Rechtsanwälte „Machen Sie keine inhaltlichen Aussagen ohne vorherige Rücksprache mit Ihrer Verteidigung. Sie haben jederzeit das Recht zu schweigen und eine Anwältin oder einen Anwalt beizuziehen. Dieses Recht gilt bereits bei der ersten polizeilichen Kontaktaufnahme. Erst nach Akteneinsicht lässt sich klären, ob und welche Einlassung sinnvoll ist.“

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