Endangering Physical Safety

Endangering physical safety under § 89 StGB punishes conduct that creates a concrete danger to the life, health, or physical safety of another person. An injury is not required. The conduct is punishable if committed intentionally or with gross negligence, as well as with negligence in the cases of § 81 para. 2 StGB. The penalty ranges up to three months’ imprisonment or 180 daily rates of fine.

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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: Active conduct or culpable omission that creates a dangerous situation.
• Endangerment Result: Concrete, direct danger to the life, health, or physical safety of a specific person.
• Causality: The danger would not have arisen without the conduct.
• Objective Attribution: Realization of a legally disapproved risk; atypical third-party causes or self-endangerment by the person concerned can interrupt attribution.

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Distinction from other offences

For classifying bodily injury and endangerment offenses:

• § 83 StGB – Bodily Injury: Intentional injury.
• § 84 StGB – Serious Bodily Injury: Serious consequence with intent to cause injury.
• § 85 StGB – Serious Permanent Consequences: Long-term or irreversible consequences.
• § 86 StGB – Bodily Injury Resulting in Death: Injury intentional, death resulting from negligence.
• § 87 StGB – Intentional Serious Bodily Injury: Intended serious consequence.
• § 88 StGB – Negligent Bodily Injury: Injury due to breach of duty of care, concrete result required.
• § 89 StGB – Endangering Physical Safety: Concrete endangerment offense without injury; creating a danger is sufficient.

Burden of proof and evaluation of evidence

Public Prosecutor’s Office: Proof beyond a reasonable doubt regarding conduct, concrete danger, causality, attribution, and subjective elements of the offense.
Court: Overall assessment of all evidence; technical reconstructions, sight and distance evidence, time-distance calculations, video and telemetry data are central.
Accused Person: No burden of proof; alternative scenarios and doubts about the concreteness of the danger may suffice.

Typical Evidence: Dashcam and CCTV recordings, accident reconstruction, expert opinions, digital metadata, witness statements.

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Practical example

• Significantly excessive speed in the area of a pedestrian crossing with crossing persons.
• Throwing heavy objects from the balcony while passers-by are walking below.
• Working on unsecured circular saws in the immediate vicinity of third parties.

subjective elements of the offence

Intent or gross negligence is required. Additionally, § 89 StGB covers negligence in the special cases of § 81 para. 2 StGB (e.g., certain traffic offenses). Simple negligence is otherwise not sufficient.

Guideline
Gross negligence exists if elementary rules of care are disregarded in a particularly conspicuous manner.

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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 Accountability: No culpability in cases of severe mental disorder, etc.; psychiatric assessment as soon as there are indications.
• 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 for endangering physical safety can, under certain conditions, end without a conviction. Criminal law provides for the possibility of diversion for this purpose.

Diversion is an extrajudicial conclusion of criminal proceedings in which the guilt is not considered severe, the facts are established, and the accused person accepts responsibility. A regular prerequisite is reparation for the consequences of the act, for example through payment of a sum of money, community service, participation in probation assistance, or a settlement with the endangered person.

A diversionary settlement is possible if no gross negligence and no significant endangerment exist. The public prosecutor’s office or the court will examine whether the requirements are met and whether such a solution corresponds to the degree of unlawfulness of the act and the personality of the accused.

In the case of successful diversion, there is no conviction and no entry in the criminal record. The proceedings are considered closed, and the person concerned can continue their life without a formal conviction. Diversion is an instrument of insight, acceptance of responsibility, and prevention that focuses on reparation rather than punishment.

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.

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Penalties under § 88 of the Criminal Code (StGB)

Basic Case: Imprisonment for up to three months or a fine of up to 180 daily rates.

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

For proceedings regarding negligent bodily injury, the district court is generally competent, as it is a misdemeanor with a lower penalty.

Locally competent is the court in whose district either

• the act was committed (place of the act), or
• the injury occurred (place of result).

If neither can be clearly determined, the court at the place of residence or stay of the accused may also be competent.

Legal remedies against first-instance judgments are governed by the general provisions of the Code of Criminal Procedure. As a rule, the regional court decides on appeals as the appellate instance.

Civil claims in criminal proceedings

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

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

In the case of endangerment offenses, the professional analysis of the dangerous situation is decisive. Even small inaccuracies in time-distance analyses, visibility conditions, or speed assumptions change the result. Early representation correctly classifies the facts legally and prevents premature steps.

Our law firm

• carefully examines whether the alleged breach of duty of care actually existed,
• analyzes technical, organizational, and medical evidence in detail,
• accompanies you through the entire investigation and court proceedings,
• consults with independent experts to clarify unclear or contradictory findings,
• develops a defense strategy aimed at proving due diligence, unforeseeability, or contributory negligence of others,
• and consistently advocates for the correct legal classification of the act and, if applicable, under application of the provisions on exemption from punishment or a diversionary settlement.

Competent criminal defense ensures that an avoidable accident does not lead to unjustified criminalization. It protects your rights, preserves your credibility, and helps to conclude the proceedings with the least possible personal and legal burdens.

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Frequently Asked Questions – FAQ

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