Negligent Homicide

Negligent homicide under Section 80 StGB occurs when someone causes the death of another person through carelessness, dereliction of duty, or lack of diligence, without intending to do so. Crucially, the perpetrator disregards a necessary precautionary measure, even though the outcome would have been foreseeable and avoidable for them. Typical cases include traffic accidents, medical malpractice, or workplace accidents resulting from safety violations. Criminal liability aims to ensure that everyone, within their scope of responsibility, exercises due care when the lives of others are at stake.

objective elements of the offence

The objective elements of the offense describe the external aspects of the event. It must be examined whether the perpetrator caused the death through unlawful conduct and whether a causal link exists.

In cases of omissions, a so-called guarantor position must also exist, meaning a legal duty to avert the outcome.

Steps of legal assessment

• Act or omission: Breach of objective duties of care in a foreseeable dangerous situation.
• Result of the act: death of another human being.
• Causality: Without the negligent conduct, the death would not have occurred.
• Connection to breach of duty: The violated duty should specifically prevent the outcome that occurred.
• Objective attribution: The outcome must be attributable to a legally disapproved risk. Self-responsible victim behavior or atypical third-party causes can exclude attribution.

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Distinction from other offences

• Section 75 StGB – Murder: intentional killing with calm deliberation, planned, and with particularly reprehensible motives.
• Section 76 StGB – Manslaughter: intentional killing in an extraordinary emotional state, without cold-blooded planning.
• Section 81 StGB – Grossly negligent homicide: particularly severe breach of duty of care with significantly increased culpability.
• Section 86 StGB – Bodily injury resulting in death: intentional bodily injury, the consequence of which is death.
• Section 88 StGB – Negligent bodily injury: breach of duty of care resulting in injury, but without death.
• Section 80 StGB – Negligent homicide: death occurring without intent as a result of unlawful conduct.

Important distinction:
For Section 80 StGB, simple negligence is sufficient. If there is a particularly gross breach of duty or indifference to a recognizable danger to life, Section 81 StGB is applicable.

Burden of proof and evaluation of evidence

The public prosecutor’s office bears the burden of proof for breach of duty of care, causality, connection to breach of duty, and attribution.
The court evaluates all evidence, especially technical, accident analysis, or medical expert opinions.
The accused person does not have to prove anything, but may point out alternative sequences of events or doubts about foreseeability.

Typical Evidence:
Accident reports, tachograph data, telemetry, witness statements, safety regulations, documentation, video recordings, or medical records.

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Practical example

• Traffic accident due to excessive speed or disregarding a red light.
• Construction site accident due to missing safety obligations, although the danger was known.
• Medical malpractice despite clear guidelines or lack of informed consent.
• Careless behavior in leisure activities with fatal consequences, for example during barbecuing or at a campfire.
• Failure to render assistance by a guarantor, although prompt intervention could have prevented death.

subjective elements of the offence

Negligence presupposes that the perpetrator acted objectively negligently and subjectively culpably.

The decisive factor is what a prudent person would have done in the same situation. The death must have been foreseeable and avoidable.

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Unlawfulness and justifications

• Self-defense: Present, unlawful attack; defense must be necessary and proportionate. A retaliatory act after the attack has ended is not self-defense.
• Excusable Necessity: Immediate danger, no less severe means, overriding interest. Also applies to spontaneous rescue actions if a danger could only be averted by a breach of duty.
• Effective Consent: Requires capacity to make decisions, information, and voluntariness. Consent to one’s own death is legally irrelevant.
• Legal Authority: Interventions with legal basis and proportionality, for example, in the context of official acts, technical surveillance, or police measures.

Burden of proof:
The public prosecutor’s office must show beyond reasonable doubt that no justification exists.
The accused person does not have to prove anything; it is sufficient to present specific circumstances that can raise doubts.
The principle of “in dubio pro reo” applies – in doubt for the accused.

Culpability and mistakes

• Mistake of Law: Only excused if the mistake was unavoidable. Everyone is obliged to inform themselves about the legal situation.
• Principle of Guilt: Only those who act culpably are punishable; negligence requires foreseeability and avoidability of the outcome.
• Lack of Criminal Responsibility: No guilt in case of severe mental disorder or pathological impairment of control capacity. If there are indications, a forensic psychiatric report must be obtained.
• Excusable Necessity: Applies in cases of unreasonableness of lawful conduct in an extreme predicament – for example, if providing assistance or rescue would seriously endanger one’s own life.
• Putative self-defense: An error regarding the existence of a justification excludes intent, but not negligence, provided the breach of duty of care remains.

Extinction of punishment and diversion

A withdrawal from attempt plays no role in negligent offenses, as there is no intent and thus no attempt.
However, a criminal proceeding can end without conviction if diversion is applied.

Diversion is generally possible in cases of negligent homicide, provided the culpability is not severe and the accused takes responsibility. Particularly crucial is demonstrable reparation, for example through compensation, apology, or support for the bereaved.

If there is a gross breach of duty or a serious disregard for safety regulations, diversion is excluded. In all other cases, it can help to resolve the conflict out of court and mitigate the criminal consequences.

Sentencing and consequences

The severity of the penalty depends on the culpability and the impact of the act. The court considers how serious the breach of duty was, how foreseeable and avoidable the death was, and whether the act was momentarily careless or an expression of persistent negligence. Personal circumstances are also examined, such as previous convictions, life situation, willingness to confess, or efforts towards reparation.

Aggravating circumstances include, in particular, multiple or particularly gross breaches of duty, disregard for clear safety rules, influence of alcohol or drugs, and indifference to recognizable dangers.
Mitigating circumstances include blamelessness, a sincere confession, active compensation for damages, co-responsibility of the victim, or an exceptional psychological stress situation. A long duration of the criminal proceedings can also have a mitigating effect on the sentence.

Austrian criminal law uses the daily rate system for fines: The number of daily rates depends on the severity of the culpability, and the individual daily rate depends on the income situation. This is intended to make the penalty equally noticeable for all affected parties. If the fine is not paid, it can be converted into a substitute custodial sentence.

A custodial sentence can be conditionally suspended in whole or in part if the sentence does not exceed two years and there is a positive social prognosis. In this case, the convicted person remains at liberty but must prove themselves during a probationary period of one to three years. If all conditions are met, the sentence is considered definitively suspended.

Courts can also issue directives – for example, regarding compensation for damages, therapy, driving fitness assessment, or contact restrictions – and order probation assistance. The goal is always to reduce the risk of recidivism and promote a stable way of life.

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Range of Penalties for Section 80 StGB

• Custodial sentence of up to one year or a fine of up to 720 daily rates.
• In cases of killing multiple people, the range of penalties increases to a custodial sentence of up to two years. In particularly serious cases, grossly negligent homicide under Section 81 StGB may also be considered, which carries a significantly higher penalty. The range of penalties for Section 80 StGB thus remains in the lower range of homicide offenses and reflects the lesser degree of culpability.

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: For Section 80 para 1 StGB, the District Court is generally competent, as the maximum penalty does not exceed one year. For Section 80 para 2 StGB, the Regional Court decides as a single judge.

Territorial jurisdiction: The competent court is that of the place of commission or the place of outcome; subsidiarily, the residence or place of presence of the accused person.

Instances: Against judgments of the District Court, an appeal to the Regional Court is permissible; against judgments of the Regional Court, an appeal to the Higher Regional Court is permissible.

Civil claims in criminal proceedings

In cases of negligent homicide, the bereaved can join the criminal proceedings and assert civil claims, particularly for funeral costs, loss of maintenance, pain and suffering compensation, or emotional distress. The private party joinder interrupts the civil statute of limitations to the extent asserted. After the criminal proceedings have been concluded with legal force, the statute of limitations begins to run again, insofar as the claim was not awarded. If the claim is partially or not at all considered, it can subsequently be pursued before the civil court.

A structured compensation for damages or an agreement with the relatives can have a mitigating effect on the sentence in the proceedings, especially if reparation and acceptance of responsibility are demonstrably documented. In grossly negligent cases, however, such mitigation is usually no longer considered.

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.

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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

Proceedings for negligent homicide are among the most legally and humanly challenging procedures in criminal law. Such accusations often involve tragic accidents, complex factual situations, and severe personal burdens. A brief moment of carelessness can have serious consequences – both for those involved and for their relatives. The legal assessment often depends on whether a breach of duty was demonstrable, foreseeable, and avoidable. Even small discrepancies in expert opinions or witness statements can decide guilt, diversion, or acquittal.

Therefore, early legal representation is crucial to secure evidence, critically examine technical and medical expert opinions, and legally precisely analyze the course of events.

Our law firm

• carefully analyzes whether there was actually a breach of duty of care or a tragic accident without criminal relevance,
• examines accident analysis, medical, and technical expert opinions for comprehensibility and evidentiary value,
• accompanies you throughout the entire investigation and court proceedings,
• collaborates with experts from relevant fields to objectively determine causes and responsibilities,
• develops an individual defense strategy that considers the specific course of events, the dangerous situation, and personal circumstances,
• and resolutely safeguards your rights against police, public prosecutor’s office, and court.

An experienced criminal defense ensures that errors, coincidence, or human negligence are correctly classified and legally appropriately assessed. This way, you receive a factual, comprehensive, and case-specific defense that takes your situation seriously and specifically aims for a just and balanced decision.

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Frequently Asked Questions – FAQ

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