Killing on Request

Killing on request is regulated in § 77 StGB. It exists if someone kills another person at their explicit, serious, and insistent request. The crucial difference to § 76 StGB manslaughter is that here, the motive for the crime is not an emotional exceptional situation of the perpetrator, but the free and serious wish of the victim to die. Nevertheless, the act remains punishable, as life, being the highest-ranking legal right, is not subject to disposition.

Select Your Preferred Appointment Now:Free initial consultation

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: Any causal action that leads to death (e.g., administering poison, suffocation, firing a shot).
• Result of the act: death of another human being.
• Causality: The action must actually lead to death. Without the perpetrator’s behavior, death would not have occurred.
• Victim’s request: explicit, serious, insistent, voluntary, and directed at one’s own death.

Select Your Preferred Appointment Now:Free initial consultation

Distinction from other offences

• § 75 StGB – Murder: intentional killing without the consent or against the will of the victim.
• § 76 StGB – Manslaughter: Killing in an affective exceptional situation, without explicit request.
• § 78 StGB – Assistance in suicide: Victim acts independently; perpetrator only provides help or encouragement.
• § 80 StGB – Negligent homicide: Death occurs due to a breach of duty of care, but without intent.

Killing on request thus forms a borderline between murder and suicide. It remains punishable even if the victim explicitly wanted to die, as criminal law gives greater weight to the protection of life than to autonomy over death.

Living Will and § 77 StGB

Since 2022, the Living Will Act (Sterbeverfügungsgesetz, StVfG) in Austria has created a narrowly limited possibility to implement one’s own wish to die in a legally controlled manner. However, exclusively through the personal action of the person concerned.

The living will allows a person of full age and capacity who suffers from an incurable or permanent serious illness with persistent suffering to take a lethal preparation themselves, provided that

• two doctors (one with palliative care training) have confirmed the capacity to make decisions and the voluntary nature of the decision,
• the disposition was made in writing before a notary public or a patient representative,
• and the preparation is only handed over to the person concerned themselves.

No living will within the meaning of the law exists if

• another person administers the lethal substance,
• the action is not carried out independently,
• or the “desire to die” was not expressed voluntarily and permanently.

In all these cases, the elements of § 77 StGB apply again, as the law only permits assisted suicide, but not active euthanasia.

Burden of proof and evaluation of evidence

Public prosecutor’s office: bears the burden of proof regarding the act, the serious result, causation, attribution, and, where applicable, qualifying elements of the offence.
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 reports, imaging diagnostics (CT, X-ray, MRI), neutral witnesses, video recordings, digital metadata, and expert opinions on the severity of the injury.

Select Your Preferred Appointment Now:Free initial consultation

Practical example

• A caring relative administers a lethal dose of medication to a terminally ill person at their explicit request.
• A spouse suffocates their seriously ill partner after the latter has repeatedly and insistently asked for death.
• A doctor performs an injection out of compassion because the patient no longer wants to suffer.
• There is no killing on request if the victim is no longer able to make decisions or the wish was only expressed in a short-term despair.

subjective elements of the offence

What is required is intent to kill another person, combined with the awareness and will to act on the explicit, serious, and insistent request of the victim.
The perpetrator recognizes that their behavior leads to death and wants to fulfill this wish.

Characteristic of killing on request is therefore not an affect or loss of control, but a conscious act out of compassion, loyalty, or emotional connection, which nevertheless fulfills the elements of the offense.
Criminal law does not differentiate here according to moral motivation, but according to the objective act, i.e., the targeted interference with the life of another.

The case law requires that the victim’s request was expressed seriously, permanently, and voluntarily.
Negligence or merely presumed consent is not sufficient; in these cases, it is regularly murder under § 75 StGB.

Select Your Preferred Appointment Now:Free initial consultation

Unlawfulness and justifications

• Killing on request is generally unlawful. Even if the victim explicitly wishes for death, life remains a legal right of the highest order, over which no one may freely dispose.
  Only in very specific exceptional cases can behavior be justified or excused.
• Self-defense: A current, unlawful attack may be defended against, provided that the defense is necessary and appropriate. However, anyone who kills to end suffering is not acting in self-defense.
• Excusable emergency: It exists if there is an immediate danger, no milder means are available, and an overriding interest is pursued. An act of compassion generally does not meet these requirements.
• Effective consent: Consent to one’s own killing is legally irrelevant. Criminal law does not recognize any disposition over one’s own life. Even the explicit consent of the victim does not eliminate the illegality.
• Legal powers: Interventions are only permissible if they are based on a legal basis and are proportionate, for example in the context of medical treatment or official state action.

Burden of proof: The public prosecutor’s office must prove beyond reasonable doubt that no justification exists. The accused person does not have to prove anything; concrete facts that give rise to doubt are sufficient. The principle of “in doubt for the accused” remains decisive.

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

In rare exceptional cases, criminal proceedings may conclude without a conviction, for instance in the event of a withdrawal from an attempted offence. A voluntary withdrawal occurs when the offender independently halts the further execution of the act or succeeds in preventing the death.

A diversion is generally excluded in the case of the offense of killing on request because the guilt is too severe. Only in exceptional constellations, such as with significantly reduced intent and demonstrably extensive compensation, could it even be considered.

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.

Select Your Preferred Appointment Now:Free initial consultation

Penalty Range § 77 StGB

• Imprisonment from six months up to five years.
• The penalty range is significantly milder than for murder or manslaughter, as the perpetrator acts at the explicit request of the victim. Nevertheless, it is a serious offense against life.

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 sitting with lay judges.
Local jurisdiction: Place of the act or the result; subsidiarily the offender’s residence or place of apprehension.
Appeal instances: Appeal to the Higher Regional Court; nullity appeal to the Supreme Court.

Civil claims in criminal proceedings

In the event of an attempt to kill on request that is survived, the person concerned can join the criminal proceedings and assert civil law claims such as compensation for pain and suffering, medical expenses, loss of earnings, or property damage.
The joinder interrupts the civil law statute of limitations to the extent requested. If the claim is not fully granted, it can then be pursued further before the civil court.

In the case of a completed offense, this right is vested in the surviving dependents. They can claim compensation for funeral costs, loss of maintenance, or emotional distress. A structured and documented statement of damages facilitates the enforcement of such claims.

An early settlement or compensation can have a mitigating effect on the sentence in cases of attempted offenses, but plays no role in the sentence for a completed act.

Overview of criminal proceedings

• Start of investigation: Accused status in case of concrete suspicion; from then on, full rights of the accused
• 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: Instruction in advance; involvement of a defense lawyer leads to postponement; right to remain silent remains
• Access to files: at police/public prosecutor’s office/court; also includes evidence (as far as the purpose of the investigation is not endangered)
• Main hearing: oral taking of evidence, judgment; decision on private party claims

Select Your Preferred Appointment Now:Free initial consultation

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

A procedure for killing on request is one of the most legally and humanly demanding constellations of criminal law.
Behind such cases are usually tragic situations of serious illness, overextension, or intense emotional attachment. The difference between a punishable act out of compassion and legally permissible euthanasia can be legally minimal, but decisive in its effect.

An early legal representation is essential to secure evidence, critically examine expert opinions, and present the voluntary nature of the act in a comprehensible manner.

Our law firm

• analyzes exactly whether there was actually an explicit, serious, and free request from the victim,
• examines medical and psychological reports for plausibility,
• accompanies you throughout the entire investigation and main proceedings,
• works with experienced forensic experts,
• and resolutely protects your rights against the police, public prosecutor’s office, and court.

An experienced criminal defense ensures that human motives are correctly understood and legally correctly assessed.
In this way, you receive a factual, precise, and case-specific defense that takes your personal situation seriously and works towards a fair judgment.

Select Your Preferred Appointment Now:Free initial consultation

Frequently Asked Questions – FAQ

Select Your Preferred Appointment Now:Free initial consultation