Negligent Bodily Harm

Negligent bodily harm under § 88 StGB covers cases in which a person causes injury or damage to health through a breach of due diligence. The crucial factor is that the consequence was foreseeable and avoidable. Gross negligence increases the penalty. If the legal grounds for privilege exist, the act remains unpunished.

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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: physical impact (e.g. hitting, pushing, kicking, strangling, use of tools) or breach of duty by omission in the event of an existing guarantor position.
• Result of the act: This breach of duty must actually result in physical injury or damage to health, such as a bruise, fracture or a longer-lasting impairment.
• Causality: There must be a comprehensible connection between the action and the injury. Without the breach of duty, the injury would not have occurred.
• Objective attribution: The result must realize precisely the legally disapproved risk created by the perpetrator (protective purpose context). Atypical third-party causes or completely independent victim behavior can interrupt the attribution.

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Distinction from other offences

Classification of offences against physical integrity:

• § 83 StGB – Bodily harm: intentional injury.
• § 84 StGB – Serious bodily harm: serious consequence, usually with intent to injure.
• § 85 StGB – Serious long-term consequences: long-term or irreversible consequences.
• § 86 StGB – Bodily harm with fatal outcome: fatal consequence due to negligence, intentional injury.
• § 87 StGB – Intentional serious bodily harm: Wanting the serious consequence.
• § 89 StGB – Endangerment: specific endangerment offense without the occurrence of a result.

Burden of proof and evaluation of evidence

Public prosecutor’s office: bears the burden of proof for action, result, 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: has no burden of proof, but may point out alternative courses of events, raise doubts about causality or assert prohibitions on the use of 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.

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Practical example

• Overlooking a pedestrian in the crosswalk despite clear visibility and speed to be observed.
• Working on rotating machine parts without the prescribed cover despite instructions.
• Administering the wrong medication despite the intended counter-check.
• Failure to clear a heavily frequented staircase in the event of black ice despite the obligation to grit.
• No punishable breach of duty in the event of completely atypical self-endangering behavior on the part of the victim without reference to a circle of duties.

subjective elements of the offence

Negligence within the meaning of § 6 StGB is required: Disregard of the necessary care, although the consequence was foreseeable and avoidable. Gross negligence exists if the breach of duty is particularly conspicuous.

Guideline
Gross negligence is the red area of the breach of duty. Anyone who ignores warning signals significantly increases their risk.

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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.
• Unaccountability: no guilt in the event of a severe mental disorder, etc. psychiatric report 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 may end without a conviction under certain conditions. Criminal law provides two ways for this: Impunity under § 88 para 2 StGB and diversion.

According to § 88 para 2 StGB, negligent bodily harm remains unpunished if there is no gross negligence and the impairment of health or inability to work does not last longer than 14 days. Whether these requirements are met results from reliable medical findings. In such cases, punishment is waived because the legislator does not want to criminalize minor negligence.

In addition, proceedings can also be settled by diversion. Diversion is a kind of extrajudicial conclusion of criminal proceedings in which the guilt is not considered serious, the facts are established and the accused assumes responsibility. A prerequisite is regularly a reparation of the consequences of the act, such as by paying a sum of money, community service, participation in probation or a victim-offender mediation.

If the diversion is successful, 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 therefore an instrument that relies on insight and compensation for damage instead of 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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Penal Framework § 88 StGB

Basic case: Imprisonment for up to three months or a fine of up to 180 daily rates.
Gross negligence or case of § 81 para 2 StGB: Imprisonment for up to six months or a fine of up to 360 daily rates.
Exemption from punishment according to § 88 para 2 StGB: not grossly negligent and no impairment over 14 days.

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

The district court is usually responsible for proceedings for negligent bodily harm, as it is a misdemeanor with a lower penalty.

The locally responsible court is that in whose district either

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

If both cannot be clearly determined, the court at the place of residence or stay of the accused may also be responsible.

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 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

Especially in the case of negligence offenses, the result depends heavily on the assessment of evidence and the professional assessment of the facts. Even small inaccuracies in expert opinions, measured values or witness statements can make the decisive difference. Early legal representation is therefore essential in order to correctly classify the actual processes under the law and prevent premature prosecution.

Our law firm

• carefully examines whether the alleged breach of duty 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, unpredictability or contributory negligence of others,
• and consistently ensures that the act is correctly classified under the law and, if necessary, with application of the exemption provision or a diversionary settlement.

Competent criminal defense ensures that an avoidable accident does not result in unjustified criminalization. It protects your rights, preserves your credibility and helps to conclude the proceedings with as little personal and legal burden as possible.

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Frequently Asked Questions – FAQ

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