Intentional endangerment of the public

According to § 176 of the German Criminal Code (StGB), intentional endangerment of the public exists if intentional actions cause a danger to the life or limb of a large number of people or to extensive third-party property, without arson, intentional endangerment by nuclear energy or ionizing radiation, or intentional endangerment by explosives being present. The occurrence of damage is not decisive, but rather the public danger triggered by the behavior.

The increased injustice arises from the conscious creation of an uncontrollable dangerous situation. Intentional endangerment of the public is therefore not merely a property offense, but a serious endangerment offense.

objective elements of the offence

The objective element of the offense exclusively covers the externally perceptible events of the crime. What is decisive is what could be determined by neutral observation, i.e., concrete actions, procedures, means used, and the resulting dangerous situation. Internal processes such as intent, knowledge, or motives are irrelevant and do not belong to the objective element of the offense.

It is required that the perpetrator other than by arson, intentional endangerment by nuclear energy or ionizing radiation, or intentional endangerment by explosives causes a danger to the life or limb of a large number of people or to extensive third-party property.

A public danger exists if the danger is not limited to individual persons, but simultaneously threatens an indefinite number of people or extensive third-party assets. The broad impact of the danger is decisive.

The creation of a real dangerous situation is sufficient. Actual damage is not required. What is decisive is that the event is suitable to significantly endanger many people or third-party property.

Not covered are cases of arson, intentional endangerment by nuclear energy or ionizing radiation, and intentional endangerment by explosives, as these offenses are regulated independently. § 176 of the German Criminal Code (StGB) only applies if none of these special offenses are present.

Qualifying circumstances

If the act results in one of the consequences mentioned in arson with serious consequences, in particular

• results in the death of a person or
• serious bodily injuries to a large number of people or
• the placing of many people in distress,

the increased penalties provided for there shall apply.
The actual occurrence of these serious consequences is required. The mere dangerousness of the action is not sufficient.

Steps of legal assessment

Perpetrator:

The subject of the offense can be any person who is criminally responsible. No special personal characteristics are required.

Object of the Offense:

The object of the offense is the life or limb of a large number of people or extensive third-party property. The extent and intensity of the endangerment is decisive, not the individual assignment.

Act:

The act consists of causing a public danger through active action or breach of duty by omission. A behavior that directly creates a general dangerous situation is required.

Result of the Offense:

The result of the crime lies in the creation of the concrete public danger. Damage is not required.

Causality:

There must be a causal connection between the perpetrator’s behavior and the dangerous situation. The danger must have arisen precisely because of this behavior.

Objective Attribution:

The result is objectively attributable if exactly the typical general danger is realized that the element of the offense is intended to prevent.

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Distinction from other offences

The intentional endangerment of the public pursuant to § 176 of the German Criminal Code (StGB) is a residual offense. It only applies if none of the specially regulated public endangerment offenses are relevant. The type of means is not decisive, but rather the causing of a general danger to many people or extensive third-party property.

• § 171 of the German Criminal Code (StGB) – Intentional endangerment by nuclear energy or ionizing radiation: The intentional endangerment by nuclear energy or ionizing radiation is a special offense. It exclusively covers dangers that are caused by radiation sources. The intentional endangerment of the public only applies if the danger does not originate from radiation, but from other sources. As soon as ionizing radiation is used or released, only the special offense is decisive.
• § 169 of the German Criminal Code (StGB) – Arson: The arson covers cases in which intentional action causes a conflagration that spreads uncontrollably and creates a significant danger to people or third-party legal interests. The focus of the injustice lies in the fire-typical uncontrollability of the fire. The intentional endangerment of the public, on the other hand, is relevant if there is no conflagration, but a comparable general danger is nevertheless created by other behavior, such as flooding, manipulation of technical systems, or decommissioning of protection systems. The only distinguishing criterion is the means of the crime. If there is a conflagration, arson shall apply. If there is any other public danger, § 176 of the German Criminal Code (StGB) applies.

Concurrences:

Genuine Concurrence:

Genuine concurrence exists if further independent offenses are added to the intentional endangerment of the public, such as bodily injury, grievous bodily harm, homicide offenses, property damage, or offenses against freedom.
The offenses exist side by side, as different legal interests are violated.

Spurious Concurrence:

Spurious concurrence exists if another element of the offense completely covers the entire content of injustice of the intentional endangerment of the public.
This is conceivable only in exceptional cases. As a rule, the intentional endangerment of the public retains its independent character as a public endangerment offense.

Multiple Offenses:

Multiple offenses exist if several public endangerments are committed independently of each other, for example at different locations or at different times.
Each action constitutes a separate criminal offense.

Continued Action:

A single offense may exist if several endangerment actions are directly related and are supported by a uniform plan of action.
The unity of action ends as soon as the perpetrator no longer takes any further endangerment actions or abandons his intent.

Burden of proof and evaluation of evidence

Public Prosecutor’s Office:

The public prosecutor’s office must prove that the accused has caused a concrete public danger to the life or limb of many people or to extensive third-party property.
Damage is not required, the real dangerous situation is decisive.

It must be proven, in particular, that

• a public danger has arisen,
• many people or extensive third-party property were affected,
• the danger was not merely minor or locally limited,
• the dangerous situation was not immediately controllable,
• the danger can be causally attributed to the behavior of the accused,
• no special offense such as arson, endangerment by nuclear energy or ionizing radiation, or endangerment by explosives exists,
• serious consequences may have occurred.

Court:

The court assesses all evidence in the overall context and examines whether a public danger in the legal sense existed and whether this is objectively attributable to the accused.

In particular, the following are taken into account

• type and extent of the dangerous situation,
• number of people at risk,
• controllability or potential for escalation,
• technical reports and crime scene findings,
• witness statements and operational logs,
• temporal connection between action and danger.

Accused Person:

The accused person bears no burden of proof, but can point out reasonable doubts, such as

• that no public danger existed,
• that the situation was controllable,
• that not many people were affected,
• that no significant asset value was at risk,
• that the danger is not causally attributable to their behavior,
• that a special offense would be relevant.

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Practical example

• Manipulation of a water pipe in a residential complex: The perpetrator intentionally opens a main water pipe in the basement of a large residential complex. Within a short time, the escaping water floods several floors, the stairwell and the technical rooms fill up, power and elevator systems fail. The situation directly endangers numerous residents, several apartments become uninhabitable. What is decisive is that the perpetrator knowingly causes an uncontrollable dangerous situation for many people and extensive third-party property.

This example illustrates that intentional endangerment of the public always exists if the perpetrator, through conscious action, creates a general dangerous situation that is not limited to individual persons and simultaneously threatens many people or third-party property, without the use of arson, explosives, or radiation.

subjective elements of the offence

The subjective element of the offense of intentional endangerment of the public requires intent with regard to all objective elements of the offense.
The perpetrator must know or at least seriously consider it possible that his behavior will cause a danger to the life or limb of a large number of people or to extensive third-party property.

The intent must relate to the fact that the danger affects not only individual persons, but an indefinite number of people or extensive third-party assets.
It is not sufficient that the perpetrator merely anticipates an individual endangerment. He must recognize or at least recklessly accept that his actions trigger a general danger.

For intent, it is sufficient that the perpetrator seriously considers the emergence of such a dangerous situation possible and accepts it.
Conditional intent is sufficient. The perpetrator does not have to want the endangerment for sure, it is sufficient that he recklessly accepts the broad impact of the danger.

The intent must also relate to the fact that the danger is significant, i.e., threatens life, limb, or extensive third-party property. A mere intent to minor endangerment or to a pure impairment of property is not sufficient.

With regard to serious consequences such as serious injuries, deaths, or the placing of many people in distress, no intent is required. It is sufficient that the perpetrator intentionally commits the endangerment of the public and that the serious consequences are negligently attributable to him.

It is required that precisely the danger that is typically created by the intentional endangerment behavior is realized, and that the occurrence of the serious consequence for the perpetrator would have been foreseeable and avoidable if he had acted in accordance with his duty.

No subjective element of the offense exists if the perpetrator seriously assumes that his behavior does not trigger a general danger, the situation remains controllable, or no large number of people or no extensive third-party property is endangered.
Likewise, intent is absent if the dangerous situation arises merely negligently or the perpetrator does not recognize the broad impact of the danger and does not recklessly accept it.

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Culpability and mistakes

Mistake of prohibition:

A mistake of law only excuses if it was unavoidable.
Anyone who knowingly creates a dangerous situation that threatens the life or limb of many people or extensive third-party property can generally not invoke the fact that he did not recognize the illegality.
Everyone is obliged to inform themselves about the legal limits of dangerous actions. Mere ignorance or recklessness do not exclude guilt.

Principle of culpability:

Only those who act culpably are punishable. Intentional endangerment of the public is an intentional offense.
The perpetrator must recognize or at least recklessly accept that his behavior triggers a general danger to many people or third-party property. If this intent is absent, for example because the perpetrator seriously assumes that the situation remains controllable or affects only individuals, there is no intentional endangerment of the public, but at most negligent behavior.

Incapacity to be held accountable:

No guilt is incurred by anyone who, at the time of the act, was unable to recognize the injustice of the endangerment of the public or to act in accordance with this insight due to a severe mental disorder, pathological mental impairment, or significant inability to control. In case of corresponding doubts, a psychiatric report will be obtained.

Excusable state of necessity:

An excusable state of necessity may exist if the perpetrator acts in an extreme emergency situation to avert an acute danger to their own life or the lives of others. In the case of intentional endangerment, the behavior remains unlawful, but can have a mitigating or excusing effect on culpability if there was no other way out and the dangerous situation could not be averted otherwise.

Putative self-defense:

Anyone who mistakenly believes that they are entitled to defensive action by causing a dangerous situation acts without intent if the error was serious and comprehensible.
Such an error can reduce or exclude culpability. However, if a breach of duty of care remains, negligent responsibility may be considered, but not justification.

Extinction of punishment and diversion

Diversion:

According to the Code of Criminal Procedure, a diversion necessarily requires that the offense is not punishable by more than five years’ imprisonment, the guilt is not severe, and no death has occurred.

However, the intentional endangerment according to § 176 StGB is already threatened in the basic offense with one to ten years imprisonment. Thus, a diversionary settlement fails because the penalty exceeds five years. A diversion is excluded by law.

If, in addition to the consequences mentioned in the arson with serious consequences, in particular serious injuries, deaths or the distress of many people, a diversion is even more inadmissible. In these cases, there is no minor injustice, but a serious public endangerment, which must necessarily be punished by the court.

A diversion is therefore not an option in the case of intentional endangerment, because

• the offense is punishable by up to ten years’ imprisonment,
• the guilt is regularly to be assessed as severe,
• the offense typically creates a concrete danger for many people or third-party property,
• the offense cannot be classified as minor,
• in the event of serious consequences, there is a legal barrier.

Measures such as monetary payments, community service, probation models or victim-offender mediation are not legally available in these constellations. A formal criminal procedure is mandatory.

Exclusion of Diversion:

The exclusion of diversion does not follow from a case-by-case assessment, but directly from the law.
The legislator assesses intentional endangerment as a serious public endangerment offense. The broad impact of the danger, the uncontrollability of the situation and the potential threat to a large number of people systematically exclude a diversionary settlement systematically.

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Sentencing and consequences

In the case of intentional endangerment, the court assesses the penalty according to the extent of the general danger created, but above all according to the nature, intensity and controllability of the dangerous situation and according to the concrete consequences of the crime. The decisive factor is how strongly the life or limb of people were endangered or injured and what extent of the danger to third-party property existed. The pure property damage is clearly secondary to the endangerment component, but remains relevant for the overall assessment.

It is particularly important whether the perpetrator acted in a targeted, planned or prepared manner, whether the dangerous situation was brought about spontaneously or in an organized manner and what escalation and spread potential existed. In the case of serious consequences of the crime such as serious injuries, deaths or the distress of many people, these consequences are a central factor in determining the sentence.

Aggravating Factors Exist in Particular If

• the dangerous situation was deliberately brought about,
• the situation quickly got out of control,
• people were concretely endangered or injured,
• third-party property was affected to a large extent,
• a high degree of recklessness was present,
• the perpetrator acted according to plan or prepared,
• relevant previous convictions exist.

Mitigating Factors Include

• a clean record,
• an early, comprehensive confession,
• recognizable remorse and insight,
• active restitution, as far as possible,
• a subordinate participation in the act,
• an excessively long duration of proceedings.

Due to the high statutory penalty, the scope for mitigation is limited. A conditional remission of punishment is only possible if the imposed penalty framework allows this and a positive social prognosis exists. In the case of serious consequences of the crime, a conditional remission is regularly excluded.

Penalty Range

In the case of intentional endangerment, the law provides for a clearly high basic penalty framework, which depends on the broad impact of the danger and on the consequences that have occurred. The decisive factor is not the property damage, but the extent of the danger to human life and third-party property.

If, other than by arson, intentional endangerment by nuclear energy or ionizing radiation or intentional endangerment by explosives, a danger to the life or limb of a large number of people or to third-party property on a large scale is caused, the penalty is one to ten years imprisonment.
Even this basic form is considered a serious offense, because the danger created can escalate uncontrollably and many people can be affected at any time.

If the act has serious consequences, in particular serious bodily injuries to a large number of people or the distress of many people, the increased penalties of arson with serious consequences apply. In these cases, a prison sentence of five to fifteen years is threatened. The legislator assesses the concrete damage and endangerment of human life as particularly serious here.

If the death of people occurs as a result of intentional endangerment, the highest penalties are to be applied. In these constellations, the penalty is ten to twenty years imprisonment.
Here, the focus is no longer on the endangerment as such, but on the fatal outcome of the public danger, which makes the act one of the most serious offenses under criminal law.

Monetary Penalty – Day-fine System

Austrian criminal law calculates monetary penalties according to the day-fine system. The number of day-fines depends on the guilt, the amount per day depends on the financial capacity. In this way, the penalty is adapted to the personal circumstances and yet remains noticeable.

• Range: up to 720 daily rates – at least €4, maximum €5,000 per day.
• Practical formula: Approximately 6 months imprisonment corresponds to around 360 day-fines. This conversion serves only as orientation and is not a rigid scheme.
• In case of non-payment: The court can impose a substitute custodial sentence. As a rule, the following applies: 1 day of substitute custodial sentence corresponds to 2 day-fines.

Note:

In the case of intentional endangerment according to § 176 StGB, a prison sentence is regularly provided for. Due to the high penalty of one to ten years, in the event of serious consequences up to twenty years imprisonment, a pure fine is practically out of the question.

Imprisonment and (partially) suspended sentence

§ 37 StGB: If the statutory penalty extends up to five years, the court may impose a fine instead of a short prison sentence of no more than one year.

This possibility does not exist in the case of intentional endangerment according to § 176 StGB. Already the basic offense is threatened with one to ten years imprisonment. Thus, the scope of application of § 37 StGB is excluded from the outset. A replacement of the prison sentence by a fine is not legally possible.

§ 43 StGB: A prison sentence can be conditionally suspended if it does not exceed two years and a positive social prognosis exists.

§ 43a StGB: The partially conditional remission allows a combination of unconditional and conditionally suspended parts of the sentence. It is possible for penalties over six months and up to two years.

§§ 50 to 52 StGB: The court may issue instructions and order probation assistance, such as

• restitution,
• behavioral requirements,
• structuring measures to prevent relapse.

In the case of intentional endangerment, these measures are only supplementary and exclusively within the framework of a (partially) conditional remission of punishment. They cannot replace the prison sentence, but can only have a accompanying effect.

Jurisdiction of the courts

Subject-matter Jurisdiction

In the case of intentional endangerment, only the Regional Court has jurisdiction. A District Court is out of the question in any constellation, since § 176 StGB is already threatened in the basic offense with one to ten years imprisonment and is therefore outside the jurisdiction of the District Court.

Regional Court as a court of lay assessors

This jurisdiction exists if the intentional endangerment

• causes a danger to the life or limb of a large number of people or
• endangers third-party property on a large scale,

without particularly serious consequences of the crime already having occurred.

In these cases, it is the basic form of intentional endangerment, in which the increased injustice results from the broad impact of the danger, without serious injuries, deaths or emergencies of many people already having occurred.

Regional Court as a jury court

This jurisdiction exists if the intentional endangerment

• results in the death of a large number of people

Here, the focus is no longer on the mere endangerment, but on the particularly serious consequence of the act. Due to the exceptional severity of the injustice, a decision by the jury court is provided for in these cases.

Local Jurisdiction

The court at the place of the offense is generally responsible locally. The decisive factor is where the public danger was caused or where the dangerous situation had an impact.

If the place of the offense cannot be clearly determined, the jurisdiction is based on

• the residence or whereabouts of the accused person,
• the place of arrest or
• the seat of the competent public prosecutor’s office.

The proceedings are conducted where a purposeful and orderly implementation is best guaranteed.

Hierarchy of Courts

Appeals and nullity complaints are admissible against judgments of the Regional Court as a lay judge or jury court.
The Supreme Court is responsible for deciding on these legal remedies.

Civil claims in criminal proceedings

In the case of intentional endangerment according to § 176 StGB, the injured person can assert their civil law claims directly in the criminal proceedings as a private party. These relate in particular to property damage, restoration costs, reduction in value and consequential damage caused by the dangerous situation.

In addition, personal injury can be claimed for compensation, such as treatment costs, loss of earnings, pain and suffering and other direct consequences of the crime, if people have been injured or have gotten into emergency situations as a result of the public endangerment.

The private party joinder inhibits the statute of limitations of the asserted claims as long as the criminal proceedings are pending. After a final decision, the statute of limitations only continues to run to the extent that the claims have not been awarded.

A voluntary compensation for damages can have a mitigating effect on the sentence, provided that it is done in a timely and serious manner. In the case of intentional endangerment, however, this mitigating effect is limited, since the focus of the injustice lies in the broad impact of the danger and the endangerment of many people.

If the perpetrator acted in a targeted, planned or reckless manner or if several people were concretely endangered, a subsequent compensation regularly loses a significant part of its mitigating significance.

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Overview of criminal proceedings

Commencement of Investigation

Criminal proceedings require a concrete suspicion, from which a person is considered an accused and can claim all rights of the accused. Since it is an official offense, the police and public prosecutor’s office initiate the proceedings ex officio as soon as a corresponding suspicion exists. A special declaration of the injured party is not required for this.

Police and Public Prosecutor’s Office

The public prosecutor conducts the preliminary investigation and determines the further course of action. The criminal police carry out the necessary investigations, secure evidence, take witness statements, and document the damage. Ultimately, the public prosecutor decides on discontinuation, diversion, or indictment, depending on the degree of culpability, the amount of damage, and the evidence.

Interrogation of the Accused

Before each interrogation, the accused person receives full instruction on their rights, particularly the right to remain silent and the right to legal counsel. If the accused requests legal counsel, the interrogation must be postponed. The formal interrogation of the accused serves to confront them with the accusation and to provide an opportunity for a statement.

Access to files

Access to files can be obtained from the police, public prosecutor, or court. It also includes items of evidence, provided that the purpose of the investigation is not thereby jeopardized. The private claimant’s joinder is governed by the general rules of the Code of Criminal Procedure and allows the injured party to assert claims for damages directly in criminal proceedings.

Main Hearing

The main hearing serves for oral evidence taking, legal assessment, and decision-making on any civil law claims. The court particularly examines the course of events, intent, amount of damage, and the credibility of statements. The proceedings conclude with a conviction, acquittal, or diversionary resolution.

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.

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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.
   You should secure all available documents, messages, photos, videos, and other records as early as possible and keep copies. Digital data must be regularly backed up and protected from subsequent changes. Note down important individuals as potential witnesses and promptly record the sequence of events in a memorandum.
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 in a targeted manner.
   Payments, symbolic services, apologies or other compensation offers should be handled and documented exclusively through the defense. A structured compensation can have a positive effect on sentencing.

Your Benefits with Legal Assistance

The intentional endangerment according to § 176 StGB is a serious public endangerment offense. The focus is on the creation of a general danger, the affecting a large number of people and the endangerment of third-party property on a large scale. The legal assessment depends heavily on the nature of the source of danger, sequence of events, broad impact of the danger, controllability of the situation, form of intent and evidence. Even small differences in the process determine whether intentional endangerment actually exists or whether another legal classification is required.

An early legal support ensures that the emergence of danger, causality and objective allocation are precisely examined, expert opinions are critically questioned and exculpatory circumstances are worked up in a usable manner.

Our law firm

• examines whether the requirements of a public endangerment are legally met or whether there is only a lesser offense,
• analyzes the evidence on source of danger, sequence of events, spread and endangerment of people or third-party property,
• develops a clear, realistic defense strategy involving technical and expert expertise.

As a representation specialized in criminal law, we ensure that the accusation of intentional endangerment is examined objectively, in a structured and consistent manner in order to ward off unjustified or exaggerated accusations and to effectively protect your legal interests.

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FAQ – Frequently Asked Questions

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