Bodily Harm

Bodily Harm

Under §83 StGB, a person is liable for bodily harm if they injure another person physically or harm their health. Similarly liable is anyone who physically abuses another person and thereby negligently injures them or harms their health. The basic penalty framework is imprisonment for up to one year or a fine of up to 720 daily rates. If the act is committed during or due to the activity against certain particularly protected groups of persons, such as healthcare personnel, rescue organizations, firefighters, or certain persons in public transport, the penalty framework is up to two years.

Bodily harm according to § 83 StGB occurs when someone injures another person physically or harms their health. The penalty framework extends up to one year or up to 720 daily rates, and up to two years for attacks on particularly protected professional groups.

objective elements of the offence

The objective element constitutes the external aspect of the event. It concerns who, what, with what, what result – and whether the action caused the outcome and is attributable to it.

Steps of legal assessment

• Object of the offense: any other living person.
• Actus reus: physical impact (hitting, pushing, pressing, throwing) or unlawful omission (in case of guarantor status).
• Result of the offense: violation of physical integrity or harm to health (including functional disorders; findings are decisive).
• Causality: conditio sine qua non; in case of omission: hypothetical prevention of success with high probability.
• Objective attribution: realization of the legally disapproved risk created in the outcome (protective purpose context; no completely atypical third-party course).

Qualifying Circumstances

Increased penalty for acts committed during or due to activity against: control/driving personnel of public transport; healthcare professions; rescue organizations; administration in the healthcare sector (especially hospitals); fire departments. Decisive factors are service relation, context, and evidence (uniform/ID, deployment protocols, location, video/witnesses).

Distinction between “Serious Consequence” – Separate Offenses

In cases of serious consequences, § 83 StGB with qualification does not apply, but rather the independent offenses:

• § 84 StGB – grievous bodily harm (e.g., long-term harm to health),
• § 85 StGB – intentionally grievous bodily harm,
• § 86 StGB – bodily harm with fatal outcome.

Burden of proof and evaluation of evidence

• Public Prosecutor’s Office: bears the burden of proof for the act, outcome, causality, attribution, and, if applicable, qualifying characteristics.
• Court: orders and evaluates all evidence; unsuitable or unlawfully obtained evidence is inadmissible.
• Accused: no burden of proof; may point out alternative scenarios, gaps, and prohibitions on the use of evidence.

Typical evidence: medical findings/images, neutral witnesses, video/CCTV/bodycam, trace evidence images, digital data (time/location/metadata), expert reconstructions.

Practical example

• Punch to the face at a folk festival (e.g., Oktoberfest): Hematoma or swelling documented → regularly constitutes an offense. Qualification possible if the victim is emergency or rescue personnel.
• Push on a staircase, resulting in a fall with a sprained wrist: injury outcome present; attribution if the push was causative.
• Throwing a beer mug into a crowd, hitting someone’s head: Laceration or cut is sufficient; intentional if thrown deliberately, otherwise negligence is possible.
• Repeated forceful pulling of hair with scalp abrasion or medically documented pain reaction: injury or harm to health proven.
• Kick to the shin with visible bruising and pain when walking: documented injury is sufficient; intensity and impact zone indicate intent.
• Strangulation of the neck for a short time with redness, pinpoint hemorrhages, or hoarseness: harm to health; increased danger relevant to sentencing.
• Push against a closed door that hits a person standing behind it (finger crush): injury outcome; attribution if foreseeable.

Peter Harlander
Harlander & Partner Rechtsanwälte „In Körperverletzungsverfahren setzt die erste Einlassung die Weichen. Ohne Akteneinsicht ist Schweigen regelmäßig die beste Verteidigung.“

Borderline Cases:

Pure pain without an objectifiable finding is generally not sufficient. A situation of self-defense excludes unlawfulness if the defense was necessary and proportionate. In cases of merely light bumping without demonstrable injury, the elements of the offense are generally not met.

subjective elements of the offence

• § 83 Para 1: Intent to injure or harm health is sufficient; conditional intent is sufficient (seriously considering it possible and accepting it).
• § 83 Para 2: Intent to abuse, negligent injury outcome (bridge to § 88 StGB).
• Only negligence: without intent already leading to abuse → § 88 StGB (breach of duty of care, foreseeability, avoidability, context of breach of duty).

Proof of intent: via chain of circumstantial evidence (intensity, direction, impact zone, means of offense, continuation despite risk warning, prior/subsequent conduct, digital traces). Opinion: In case of doubt, there is no conviction for intent based on “I didn’t want to injure” without compelling counter-evidence – but negligence remains a reality.

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

• 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.
• Mistake of law: excuses only if unavoidable (duty to inform oneself about the law).

Extinction of punishment and diversion

Withdrawal from attempt: Timely voluntary abandonment or prevention of the outcome leads to no punishment for the attempt. Decisive factors are voluntariness, stage (completed/uncompleted attempt), and the suitability of countermeasures.

Diversion: termination of proceedings without conviction in cases of minor guilt, clarified facts, and suitable measures (monetary payment, community service, probation/probationary assistance, victim-offender mediation). No criminal record entry.

Sentencing and consequences

Guiding principle: Severity of guilt, extent of harm/endangerment, breaches of duty, degree of planning, recklessness, special/general prevention. Aggravating factors: multiple offenses, relevant prior convictions, particular recklessness, offense committed in front of children, among others Mitigating factors: blamelessness, confession, compensation for damages, victim’s co-responsibility, long duration of proceedings, stable lifestyle.

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. This provision is particularly relevant for the basic case of Section 83 of the Criminal Code, as it regularly avoids a custodial sentence, provided that neither special nor general preventive reasons preclude it.

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: For proceedings under § 83 Para 1 and 2 StGB, the District Court has jurisdiction and decides through a single judge. If a qualified case under § 83 Para 3 StGB exists, jurisdiction falls to the Regional Court, also with a single judge. A lay judge or jury court is excluded, as the penalty framework does not exceed two years.

Territorial: Primarily, the court of the place of offense has jurisdiction; for outcome offenses, additionally that of the place of outcome. If the place of offense cannot be clearly determined, recourse can alternatively be made to the residence or stay of the accused, the place of apprehension, or the seat of the public prosecutor’s office. If several options exist, the proceedings will be concentrated at the most appropriate court.

Appellate levels: Against judgments of the District Court, an appeal to the Regional Court is permissible; decisions of the Regional Court can be challenged with an appeal or nullity complaint before the Higher Regional Court or the Supreme Court, respectively.

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

• 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.
• Practical access to files: investigation and trial records; access by third parties is restricted to protect the accused.

Practical guidance and behavioural advice

1. Maintain silence.
   A brief statement is sufficient: “I am exercising my right to remain silent and will first speak with my defense counsel.”
   This right applies from the very first interrogation by the police or the public prosecutor.
2. Contact defense counsel immediately.
   No statement should be made without access to the investigation files. Only after reviewing the files can the defense assess which strategy and evidence preservation measures are appropriate.
3. Secure evidence immediately.
   Obtain medical reports; take photographs with date and scale and, where appropriate, X-ray or CT images. Store clothing, objects, and digital records separately. Prepare a witness list and contemporaneous recollection notes within two days at the latest.
4. Do not contact the opposing party.
   Your own messages, calls, or posts may be used as evidence against you. All communication should take place exclusively through your defense counsel.
5. Secure video and data recordings in time.
   Surveillance videos from public transport, venues, or property management systems are often automatically deleted after only a few days. Requests for data preservation must therefore be submitted immediately to the operators, the police, or the public prosecutor’s office.
6. Document searches and seizures.
   In cases of house searches or seizures, you should request a copy of the warrant or record. Note the date, time, persons involved, and all items taken.
7. In case of arrest: make no statements about the matter.
   Insist on immediate notification of your defense counsel. Pre-trial detention may only be imposed if there is strong suspicion of guilt and an additional ground for detention. Less severe measures (e.g., pledge, reporting duty, contact ban) must take precedence.
8. Prepare compensation for damages strategically.
   Payments or offers of reparation should be handled and documented exclusively through defense counsel. Structured compensation for damages has a positive effect on diversion and sentencing.

Sebastian Riedlmair
Harlander & Partner Attorneys „Objektive Befunde, neutrale Zeugen und gesicherte Videodaten tragen das Verfahren – nicht Vermutungen oder Erklärchats.“

Your Benefits with Legal Assistance

Criminal proceedings deeply impact the lives of those affected. Serious consequences can arise right from the start. House searches, arrests, entries in the criminal register, prison sentences, or fines are real risks. Thoughtless statements, lack of access to files, or missed preservation of evidence often lead to disadvantages that can hardly be corrected later. Economic burdens due to claims for damages, procedural costs, or loss of employment are also not uncommon.

Experienced criminal defense like ours ensures that your rights are protected from the outset. It ensures a well-considered and strategic approach towards the police and public prosecutor’s office, safeguards your right to remain silent, and secures evidence in a timely manner. This creates a clear and effective defense strategy tailored to your specific case.

Our law firm:

• examines whether the accusation is legally and factually sustainable,
• accompanies you throughout the entire investigation and main proceedings,
• submits all necessary motions, evidentiary motions, and statements,
• assists in defending against or settling claims for damages and civil claims,
• consistently safeguards your rights and interests vis-à-vis the court, public prosecutor’s office, and all parties involved,
• and ensures a comprehensible, goal-oriented defense that also considers your personal and economic circumstances.

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