Negligent endangerment of the public

According to § 177 of the Criminal Code, negligent endangerment of the public occurs if careless, non-intentional conduct causes 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 actual occurrence of damage is not decisive, but rather the objective creation of a public danger.

The punishable wrong results from the breach of the required duty of care, which creates an uncontrollable dangerous situation. Negligent endangerment of the public is therefore not merely a property offense, but an independent endangerment offense with a considerable degree of unlawfulness.

objective elements of the offence

The objective element of the offense exclusively covers the externally perceptible events. 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, motives or forms of negligence 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. An actual occurrence of damage is not required. What is decisive is that the event is suitable for significantly endangering many people or third-party property.

Cases of arson, intentional endangerment by nuclear energy or ionizing radiation and intentional endangerment by explosives are not covered, as these offenses are regulated independently. § 177 of the Criminal Code only applies if none of these special offenses exist.

Qualifying circumstances

If the negligent endangerment of the public leads to consequences that correspond to arson with serious consequences, then the same increased penalties apply.

This is particularly the case if

• a person is killed,
• many people are seriously injured, or
• a large number of people are placed in a situation of existential distress.

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. What is required is conduct that directly creates a general dangerous situation.

Result of the Offense:

The result of the offense lies in the creation of the concrete public danger. An occurrence of 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 negligent endangerment of the public pursuant to § 177 of the Criminal Code is a residual offense. It only applies if none of the specially regulated public endangerment offenses are applicable. What is decisive is not the means used, but the negligent causing of a general danger to many people or third-party property on a large scale.

• § 176 of the Criminal Code – Intentional endangerment of the public: There is a clear dividing line to intentional endangerment of the public under § 176 of the Criminal Code. § 176 of the Criminal Code covers the conscious and deliberate creation of a public danger. § 177 of the Criminal Code, on the other hand, requires that the danger arises not intentionally, but through carelessness or breach of duty. Anyone who intentionally creates a situation that endangers many people or third-party property falls under § 176 of the Criminal Code. Anyone who negligently causes such a danger is assessed under § 177 of the Criminal Code. The internal element of the offense, not the external event, is therefore exclusively decisive.
• § 169 of the Criminal Code – Arson: If there is arson under § 169 of the Criminal Code, § 177 of the Criminal Code is not applicable. The arson offense takes precedence as a special offense. This also applies if the fire endangers many people or third-party property on a large scale. In these cases, the negligent endangerment of the public is completely displaced because the injustice is already covered by the arson.

Concurrences:

Genuine Concurrence:

Genuine concurrence exists if other independent offenses are added to the negligent endangerment of the public, such as bodily harm, serious bodily harm, homicide offenses, property damage or offenses against freedom. In these cases, the offenses exist side by side because different legal interests are violated. The negligent endangerment of the public retains its independent element of injustice, as it covers the broad impact of the danger.

Spurious Concurrence:

Spurious concurrence exists if another element of the offense completely covers the entire element of injustice of the negligent endangerment of the public. In the case of § 177 of the Criminal Code, this is only conceivable in rare exceptional cases. In practice, the negligent endangerment of the public regularly remains in place because it covers precisely that general dangerous situation that other offenses do not fully depict.

Multiple Offenses:

Multiple commission is to be assumed if several endangerments of the public are committed independently of each other, for example in different places or at different times. Each of these actions then constitutes a separate criminal act.

Continued Action:

A single act may exist if several endangering actions are directly related and part of a single sequence of events. The unity of action ends as soon as no further endangering actions are taken or the endangering behavior is stopped.

Burden of proof and evaluation of evidence

Public Prosecutor’s Office:

The public prosecutor’s office must prove that the accused negligently caused a concrete public danger to the life or limb of many people or to third-party property on a large scale.
An occurrence of 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 conduct 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 actually occurred

In addition, in the case of negligent endangerment of the public, it must be proven that the dangerous situation arose through a breach of duty of care.

Court:

The court assesses all evidence in the overall context and examines whether a public danger in the legal sense existed and this can be objectively attributed 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 property value was endangered
• that the danger is not causally attributable to their conduct
• that a special offense would be applicable
• or that no breach of duty of care exists

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Practical example

• Improper operation of a heating system in an apartment building: A property manager allows an outdated gas heating system in a large apartment building to continue running despite repeated warnings from a service technician, without having the necessary maintenance and inspection carried out. As a result, a defect occurs, causing exhaust gases to escape into the stairwell and several apartments. The smell quickly spreads throughout the building, residents complain of dizziness and breathing problems, the house has to be evacuated, the fire department and rescue services are on site. Several apartments are temporarily unusable. What is decisive is that the person responsible did not deliberately want to create a danger, but through breach of duty by omission and lack of care caused a general dangerous situation for many people and third-party property on a large scale.

This example shows that negligent endangerment of the public already exists if negligence in maintenance and control creates a situation in which a large number of people are simultaneously seriously endangered, even if no damage was intended.

subjective elements of the offence

Negligent endangerment of the public does not require intent. The perpetrator must not have wanted the danger and must not have consciously accepted it. It is sufficient that he disregards the required duty of care and thereby causes a danger to many people or third-party property on a large scale.

Negligence exists if the perpetrator
does not recognize the danger, even though he should have recognized it, or
recognizes the danger, but negligently trusts that nothing will happen.

It is therefore sufficient that the perpetrator acts carelessly, recklessly or in breach of duty and thereby creates a general dangerous situation. A conscious intention to endanger is not required.

With regard to serious consequences such as serious injuries, deaths or placing many people in distress, no intent is required either. What is decisive is that these consequences would have been foreseeable and avoidable.

No subjective element of the offense exists if the perpetrator has complied with all necessary due diligence measures and the dangerous situation would not have been recognizable even with proper conduct.

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Culpability and mistakes

Mistake of prohibition:

A mistake of prohibition only excuses if it was unavoidable.
Anyone who creates a dangerous situation through negligent conduct that threatens the life or limb of many people or third-party property on a large scale can generally not claim not to have recognized the illegality. Everyone is obliged to inform themselves about the legal and factual sources of danger of their actions. Mere ignorance, indifference or recklessness do not exclude guilt.

Principle of culpability:

Only those who act culpably are punishable. Negligent endangerment of the public is not an intentional offense, but requires breach of duty of care. The perpetrator must not want the danger and must not consciously accept it. It is sufficient that he does not recognize the dangerousness of his behavior, even though he should have recognized it, or negligently underestimates the danger.

If there is no breach of duty of care, for example because the perpetrator could not recognize that a general danger was arising even with dutiful conduct, there is no negligent endangerment of the public.

Incapacity to be held accountable:

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

Excusable state of necessity:

An excusable emergency situation may exist if the perpetrator acts in an extreme emergency to avert an acute danger to their own life or the lives of others. Even in the case of negligent endangerment of the public, the behavior remains unlawful, but can have a guilt-reducing or excusing effect 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 a defensive action by causing a dangerous situation acts without intent if the mistake was serious and comprehensible. Such a mistake can reduce or exclude guilt. However, if a breach of duty of care remains, negligent responsibility comes into consideration, but not a 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 serious
• no death has occurred

The negligent endangerment of the public is punishable in the basic element of the offense by imprisonment of up to one year or a fine of up to 720 daily rates. A diversionary settlement is therefore generally possible, provided that the other requirements are met.

What is decisive above all is whether the breach of duty is not to be assessed as serious and the dangerous situation was not particularly far-reaching or uncontrollable.

If there are serious injuries, deaths or the placing of many people in distress, a diversion is generally excluded. In these cases, there is no minor injustice, but an act with considerable weight.

Therefore, a diversion only comes into consideration if

• the offense does not carry a sentence of more than five years
• the guilt is not severe
• no death has occurred
• the offense is not classified as serious
• a formal punishment does not appear necessary to prevent further offenses

If a diversion is considered, monetary payments, community service, probation models, or victim-offender mediation are possible. The goal is a resolution without a guilty verdict if punishment is not necessary.

Exclusion of Diversion:

An exclusion of diversion in the case of negligent endangerment does not occur automatically, but rather from the legal requirements. A diversionary settlement is inadmissible if the guilt is considered severe or the act resulted in the death of a person. In these cases, a formal criminal procedure is mandatory.

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Sentencing and consequences

In the case of negligent endangerment, the court assesses the penalty based on the extent of the general danger created, but above all on the nature, intensity, and controllability of the dangerous situation, as well as on the specific consequences of the act. Decisive is how severely the life or limb of people were endangered or injured and the extent of the danger to third-party property. The pure property damage is significantly less important than the endangerment component, but remains relevant for the overall assessment.

Of particular importance is how serious the breach of duty was, whether warning signs were ignored, safety regulations were disregarded, or obvious risks were ignored. It must be considered whether the dangerous situation could have been easily avoided, whether it quickly spiraled out of control, and what potential for escalation and spread existed. In the case of serious consequences 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 caused by gross negligence,
• the situation quickly got out of control,
• people were concretely endangered or injured,
• third-party property was affected to a large extent,
• there was a high degree of irresponsibility,
• the perpetrator ignored warnings or disregarded safety rules,
• 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 comparatively low statutory penalty, the upper limit of the penalty is clearly defined. Nevertheless, the penalty can be severe in individual cases if the dangerous situation was particularly serious or serious consequences have occurred. In practice, prison sentences are often suspended, fines are typical, but in the case of serious consequences or massive breaches of duty, unconditional imprisonment is also possible.

Penalty Range

In the case of negligent endangerment, the following is fundamentally threatened

• Imprisonment of up to one year or
• Fine of up to 720 daily rates

This penalty applies whenever “only” a dangerous situation has arisen for many people or third-party property, without serious consequences.

If, as a result of negligent endangerment, many people suffer serious injuries, a person dies, or many people find themselves in a situation of existential distress, the penalty is significantly increased.

In these cases, the following is threatened

• Imprisonment of up to three years

If there are even deaths of several people, the penalty increases further. Then the following is threatened

Imprisonment from six months to five years

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 negligent endangerment, fines are common in practice, but in the case of serious consequences, imprisonment is also realistic.

Imprisonment and (partially) suspended sentence

§ 37 of the Criminal Code: If the statutory penalty threat reaches up to five years, the court can impose a fine instead of a short imprisonment of no more than one year.

This possibility exists in principle in the case of negligent endangerment. The basic offense is threatened with imprisonment of up to one year or a fine. This opens up the scope of § 37 StGB . A substitution of a short prison sentence by a fine is legally possible and common in practice.

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

In the case of negligent endangerment, conditional remission is regularly possible, as the penalty is low and it is typically not intentional wrongdoing.

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

This form is also fundamentally considered in the case of negligent endangerment, especially in the case of serious breaches of duty or the occurrence of serious consequences.

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

• Compensation for damages,
• Conditions of conduct,
• Structuring measures to prevent relapse.

In the case of negligent endangerment, these measures are regularly considered in the context of a conditional or partially conditional suspension of sentence. They can replace or accompany the imprisonment, depending on the severity of the sentence and the prognosis.

Jurisdiction of the courts

Subject-matter Jurisdiction

In the case of negligent endangerment, jurisdiction is not uniform, but depends on the specific penalty.

In the basic offense, imprisonment of up to one year or a fine is threatened. In these cases, the district court has jurisdiction. The proceedings are conducted there by a single judge.

However, if there are serious consequences, i.e. serious injuries to many people, the death of a person, the distress of many people or the death of several people, the penalty increases to up to three years or even up to five years imprisonment. In these constellations, the district court no longer has jurisdiction, but the regional court, also by a single judge.

A lay judge or jury court is not used in the case of negligent endangerment, as the penalty never exceeds five years.

A lay judge or jury court is not used in the case of negligent endangerment, as the penalty never exceeds five years.

Local Jurisdiction

The local court is generally the court at the scene of the crime. The decisive factor is where the dangerous act was committed 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 against judgments of the district court are possible to the regional court.

Appeals against judgments of the regional court as a single judge are admissible to the higher regional court.

The Supreme Court is only involved in appeal proceedings in special constellations.

Civil claims in criminal proceedings

In the case of negligent endangerment, the injured party can assert their civil 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, 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 negligent endangerment.

The private party connection inhibits the statute of limitations of the asserted claims as long as the criminal proceedings are pending. After the legally binding conclusion, the statute of limitations only continues to the extent that the claims have not been awarded.

A voluntary compensation for damages can have a mitigating effect, provided it is done in a timely and serious manner. In the case of negligent endangerment, this mitigating effect is given greater weight than in the case of intentional offenses, as the focus is not on the deliberate creation of a danger, but on a breach of duty of care.

However, if the perpetrator has acted with particularly gross negligence, ignored warnings or left an obviously dangerous situation unsecured, a subsequent remedy also loses noticeably mitigating significance here.

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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

Negligent endangerment is a demanding endangerment offense. The focus is on causing a general danger, the impact on a large number of people and the endangerment of third-party property on a large scale. The legal assessment depends largely on the nature of the source of danger, sequence of events, controllability of the situation, breach of duty of conduct and the state of evidence. Even minor differences in the process determine whether negligent endangerment actually exists or whether only a lesser charge is considered.

Our law firm

• examines whether the requirements for negligent endangerment are actually met in law or whether only a minor offense exists,
• analyzes the evidence regarding the 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 specializing in criminal law, we ensure that the accusation of negligent endangerment is examined objectively, in a structured and consistent manner in order to avoid overestimations of the dangerous situation and inappropriate penalty risks.

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FAQ – Frequently Asked Questions

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