Bodily Harm with Serious Permanent Consequences

Bodily Harm with Serious Permanent Consequences

Bodily harm with serious permanent consequences describes cases in which a person is injured by an intentional act in such a way that permanent or long-term impairments remain. This includes, for example, the loss or severe damage to speech, sight or hearing, reproductive ability or other essential bodily functions. It also covers significant mutilations or conspicuous disfigurements, such as visible scars or permanent disfigurements, as well as injuries to the genitals if they have a lasting impact on sexual sensation. Severe chronic suffering, wasting or permanent occupational disability are also among these permanent consequences.
The decisive factor is not how brutal the act was, but what medically verifiable and permanent consequences it actually leaves behind. Only a medically confirmed, permanent impairment fulfills the requirements of § 85 StGB.

Bodily harm with serious permanent consequences exists if an act leads to a long-term or permanent loss of bodily functions, a conspicuous disfigurement or a serious chronic condition, such as loss of senses, occupational disability or significant disfigurement.

objective elements of the offence

The objective part describes the external side of the event. It answers the question of who did what with what, what result occurred and whether there is a causal connection between the action and the serious permanent consequence.

Steps of legal assessment

The act consists of a physical impact, such as hitting, pushing, kicking or strangling, or in a culpable omission if there was a legal obligation to intervene.
The result of the act lies in a serious and long-term impairment of health. This includes the loss of sensory organs, significant mutilations, conspicuous disfigurements or permanent suffering that significantly impairs everyday life.
Causality means that the action was the cause of the permanent consequence that occurred. In the case of omissions, it is examined whether the success could have been prevented with a high degree of probability.
Objective attribution exists if the risk created by the perpetrator’s behavior has materialized in the success that has occurred. A completely atypical course or independent misconduct of the victim interrupts this attribution.

Distinction from other offences

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

• § 84 StGB – Serious 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 serious permanent consequences:
  Concerns cases in which 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 suffering.
• § 86 StGB – Bodily harm with fatal outcome:
  Covers those constellations in which the bodily harm leads to the death of the victim.

This system shows that § 85 StGB represents the most serious form of bodily harm below the fatal outcome. It marks the transition between a serious, still curable injury and the final loss of life functions.

Burden of proof and evaluation of evidence

• Public prosecutor’s office: bears the burden of proof for action, serious success, causality, attribution and, if applicable, qualification 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

• A blow to the head that leads to permanent hearing loss can be considered bodily harm with serious permanent consequences.
• A deep cut in the face that leaves a conspicuous, permanent scar also fulfills the elements of the offense.
• An injury that results in a permanent restriction of hand function or a sustained occupational disability is also included.
• Also covered are injuries to the genitals if they have a lasting impact on sexual sensation.
• Temporary pain or slight impairments without demonstrable permanent consequences are not sufficient.

subjective elements of the offence

Bodily harm with serious permanent consequences can be committed in two variants.
According to paragraph 1, it exists if someone intentionally commits abuse and thereby negligently causes a serious permanent consequence.
According to paragraph 2, it is an intentional bodily harm in which the perpetrator at least negligently causes the serious permanent consequence.

The intent must therefore be directed at the act of injury itself. For the permanent consequence, it is sufficient that the perpetrator recognized the danger but ignored it in breach of duty. Proof of intent is usually provided by circumstantial evidence such as the intensity of the attack, the means used to commit the crime, the affected area of the body or the behavior before and after the act.

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.

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: Regional Court (penalties up to 10 years).
Local: Place of the offense or place of success; subsidiary place of residence/place of entry.
Instances: Appeal to the Higher Regional Court; appeal on points of law 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 with serious permanent consequences are not only legally complex, but also personally stressful. There is a threat of high prison sentences, considerable claims for damages and long-term entries in the criminal register. Early legal representation is therefore crucial in order to properly secure evidence, correctly assess medical reports and strategically work towards a mitigation of proceedings.

Our law firm

• carefully examines whether the alleged permanent consequence actually fulfills the strict requirements of § 85 StGB,
• supports you throughout the entire investigation and court proceedings,
• analyzes medical records and secures exculpatory reports,
• develops an individual defense strategy – from diversion to conditional remission of punishment,
• supports injured parties in enforcing claims for pain and suffering and compensation,
• and consistently protects your rights and interests against the police, public prosecutor’s office and court.

Experienced criminal defense ensures that every detail of your case is taken into account and that you do not become a victim of one-sided evaluation of evidence or incomplete medical assessment. This will give you a well-founded, fair and tailored defense for 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.“

Frequently Asked Questions – FAQ