Omission to Render Assistance

Omission to render assistance according to § 95 StGB concerns situations where someone recognizes another person in immediate mortal danger, could render assistance, but deliberately refrains from doing so. The offense is not merely a breach of etiquette, but an independent criminal offense that legally secures the societal duty of mutual assistance.

Punishable is anyone who, in a clearly recognizable emergency, does nothing, although they could help or arrange for help without significant self-endangerment. Even calling emergency services or alerting other people is sufficient to fulfill this duty. It is not about heroic self-sacrifice, but about the fundamental responsibility for one another.

objective elements of the offence

The offense of omission to render assistance concerns situations in which someone fails to render assistance in an accident or a public danger, although it would be obviously necessary and reasonable. Thus, it is not the causation of the accident that is punishable, but deliberate inaction when a person is in mortal danger or in danger of considerable bodily harm or health impairment.

Anyone who recognizes such a situation and does not act, although they could enable or facilitate rescue through simple measures such as emergency calls, first aid, or calling for third parties, fulfills the objective elements of the offense. The assistance must be possible, necessary, and obviously required.

Steps of legal assessment

Object of the offense: A person who is in danger of death or in danger of significant injury or health impairment.

Criminal act: The deliberate omission of recognizably necessary and reasonable assistance. Assistance includes, in particular, first aid measures, securing the danger zone, alerting emergency services, or other suitable actions to avert the danger.

Result of the offense: The endangered person remains without assistance in a concrete dangerous situation. If the omission results in the death of a person, an aggravated variant of the offense exists.

Causality: The omission is causal if the omitted action would have offered a real chance of rescue or if the damage incurred would have been avoidable through timely assistance.

Objective attribution: The result is attributable if the perpetrator had a duty to rescue, unlawfully omitted it, and thereby allowed the danger to persist or worsen.

Qualifying Circumstances

Consequence of death: If the omission to render assistance leads to the death of a person, a prison sentence of up to one year or a fine of up to 720 daily rates is provided.

Limit of reasonableness: No criminal liability exists if the assistance was not reasonable, for example, because it would only have been possible under significant danger to one’s own life or health or in violation of other essential interests.

Rule of concurrence: Separate punishment is omitted if the perpetrator is already held criminally responsible for a more serious offense such as bodily harm or homicide.

Distinction from other offences

• § 83 StGB – Bodily Harm: Intentional injury of another person. Requires a targeted or knowingly accepted harm. The offense concerns active conduct, not omission.
• § 84 StGB – Grievous Bodily Harm: If the act leads to permanent health impairment or significant physical impairment, an aggravated form of simple bodily harm exists.
• § 85 StGB – Intentional Grievous Bodily Harm: The severe consequence is brought about intentionally. The perpetrator intends the serious injury and acts purposefully.
• § 86 StGB – Bodily Harm with Fatal Outcome: The perpetrator intentionally injures, but death occurs unintentionally as a consequence.
• § 88 StGB – Negligent Bodily Harm: A breach of duty of care without intent. The perpetrator could have recognized and avoided the danger, but acts recklessly or carelessly.
• § 91 StGB – Affray: No targeted bodily harm, but participation in a chaotic altercation with at least three active participants. Even participation is punishable if someone is injured or killed and one’s own contribution cannot be ruled out.
• § 94 StGB – Abandonment of an Injured Person: Punished is the omission to render assistance to a person one has injured oneself. Decisive are the recognized need for help and the possibility of providing help without significant self-endangerment.
• § 95 StGB – Omission to Render Assistance: Covers the failure to render obvious assistance in an accident or a public danger, even without one’s own fault. Punishable is the deliberate omission of necessary and reasonable assistance if thereby the life or health of another remains seriously endangered.

The abandonment of an injured person and the omission to render assistance differ in that abandonment of an injured person presupposes a self-caused danger, whereas omission to render assistance also applies to those who merely happen to witness an emergency and do nothing despite recognizable danger.

Burden of proof and evaluation of evidence

• Public Prosecutor’s Office: bears the burden of proof for causation, need for assistance, possibility and reasonableness of assistance, as well as for any connection between the omission and the resulting consequence.
• Court: orders and evaluates all evidence; unsuitable or unlawfully obtained evidence is not admissible. Decisive is whether a real chance of rescue existed and whether the perpetrator demonstrably failed to utilize it.
• Accused: no burden of proof; may point out doubts regarding recognizability, reasonableness, or causality and refer to prohibitions on use or gaps.

Typical evidence: medical findings/images, neutral witnesses, video/CCTV/bodycam, trace evidence images, digital data (time/location/metadata), expert reconstructions.

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Practical example

• Flight after an accident: After a collision or a fall, the perpetrator recognizes that a person is seriously injured, but renders no assistance and leaves. The mere act of driving away or leaving without at least notifying emergency services fulfills the elements of the offense of omission to render assistance.
• Hit-and-run with personal injury: A female driver hits a pedestrian, recognizes the danger of injury, and continues her journey without organizing help. Even if the accident happened unintentionally, the failure to render obvious assistance is punishable.
• Leisure accident: After a fall while hiking or climbing, the companion notices clear signs of a serious injury, such as unconsciousness or paralysis, and does not react. The failure to alert emergency services establishes criminal liability.
• Work accident: An employee is injured during a risky work step. The supervisor or colleague leaves the danger zone without rendering first aid or seeking assistance. Here, too, there is an omission to render assistance.
• Unreasonableness of assistance: A person is injured in a fire or accident. Assistance would only be possible by exposing oneself to significant mortal danger. In this case, rendering assistance is not reasonable and therefore not punishable.

subjective elements of the offence

The subjective elements of the offense of omission to render assistance require intent. The perpetrator must know or at least seriously consider it possible that a person is in mortal danger or significant health danger, that assistance would be necessary and possible, and nevertheless deliberately decide against doing anything.

An intention to worsen the consequences is not required. It is sufficient if the perpetrator remains indifferent or passive, although the emergency is recognizable to them. Anyone who perceives an obvious danger and nevertheless does not act fulfills the subjective elements of the offense.

No intent exists if the situation was objectively not recognizable as requiring assistance or if someone is temporarily unable to act due to shock, overwhelm, or fear. Likewise, criminal intent is absent if assistance was actually impossible or unreasonable.

Decisive is whether the perpetrator could and should have recognized the danger and deliberately decided to remain inactive, although they were legally obliged and actually able to render assistance.

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Culpability and mistakes

• Mistake of law: Excuses only if the mistake was unavoidable. Everyone is obliged to inform themselves about the legal situation.
• Principle of culpability: Only those who act culpably are punishable; negligence presupposes foreseeability and avoidability of the result.
• Lack of criminal responsibility: No culpability in case of severe mental disorder or pathological impairment of the ability to control one’s actions. If there are indications, a forensic psychiatric report must be obtained.
• Exculpatory necessity: Applies in cases of unreasonableness of lawful conduct in an extreme coercive situation, such as when rendering assistance or rescue would seriously endanger one’s own life.
• Putative self-defense: A mistake about the existence of a justification excludes intent, but leaves negligence unaffected if the breach of duty of care persists. Here too, the following applies: Anyone who acts recognizably risky cannot invoke supposed justifications.

Extinction of punishment and diversion

Withdrawal from Attempt

A withdrawal is generally not possible in the case of omission to render assistance, as the offense is already completed with the unlawful omission to render assistance.
However, anyone who timely and voluntarily renders assistance before more serious consequences occur can achieve a reduction in sentence or significantly mitigate the accusation. Decisive are the time, the effectiveness of the subsequent assistance, and the recognizable insight to correct the breach of duty.

Diversion

A diversion may be considered if the culpability is minor, the facts are clear, and the accused is insightful. Possible measures include monetary payments, community service, probation, or victim-offender mediation. If the proceedings are concluded by diversion, there is no conviction and no entry in the criminal record.

A diversion is not possible if the omission to render assistance has led to the death of a person or if the perpetrator has deliberately fled to avoid responsibility. In less serious cases, however, with a confession, insight, and active reparation of damages, it can represent an appropriate solution without a court conviction.

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Sentencing and consequences

The penalty for omission to render assistance depends on the severity of the breach of duty, the consequences incurred, and personal culpability. Decisive is whether the perpetrator deliberately ignored the danger or merely failed to react due to shock, fear, or overwhelm. Also relevant are the behavior after the act, the capacity for insight, and the willingness to make amends.

Aggravating circumstances exist particularly when

• the perpetrator flees instead of rendering assistance,
• the victim is deliberately left helpless,
• the omission leads to death or significant consequences,
• or the perpetrator has already been conspicuous due to similar breaches of duty.

Mitigating circumstances include, for example,

• a clean record,
• a confession or signs of sincere remorse,
• subsequent reparation of damages or active assistance,
• a state of shock or an exceptional situation during the event,
• or an excessively long duration of the criminal proceedings.

Austrian criminal law provides for the daily rate system for fines.
The number of daily rates depends on the severity of culpability, the individual daily rate according to income circumstances. This ensures that the penalty remains comparably noticeable. If it is not paid, a substitute prison sentence can be imposed.

A custodial sentence can be fully or partially suspended if it does not exceed two years and there is a positive social prognosis. The convicted person then remains at liberty but must prove themselves during a probationary period of one to three years. After this period, if all conditions are met, the sentence is considered definitively suspended.

The court can additionally issue directives, for example, for restitution for damages, participation in a first-aid course or therapy, or order probation supervision. These measures are intended to prevent future breaches of duty and promote the offender’s social reintegration.

Penalty Range

In cases of failure to render assistance, the penalty depends on the extent of the consequences:

Basic offense: Custodial sentence of up to six months or a fine of up to 360 daily rates.

Fatal outcome: Custodial sentence of up to one year or a fine of up to 720 daily rates.

The sentencing framework takes into account that this is not an active harmful act, but rather the conscious omission of necessary assistance. However, the conduct is serious because the offender knowingly leaves a person in acute mortal danger without support, even though assistance would have been possible and reasonable.

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

§ 37 StGB: If the statutory penalty provides for up to five years imprisonment, the court shall impose a fine instead of a short custodial sentence of no more than one year. This provision is also relevant in cases of failure to render assistance, as it can avoid a custodial sentence in less serious cases, provided there are no specific or general preventive reasons against it.

§ 43 StGB: A prison sentence can be conditionally suspended if it does not exceed two years and the convicted person is certified to have a positive social prognosis. The probationary period is one to three years. If it is completed without revocation, the sentence is considered finally suspended.

§ 43a StGB: The partially suspended sentence allows a combination of unsuspended and suspended parts of the sentence. For prison sentences of more than six months up to two years, a part can be conditionally suspended or replaced by a fine of up to 720 day-fines if this appears appropriate under the circumstances.

§§ 50 to 52 StGB: The court can additionally issue directives and order probation supervision. Typical directives concern restitution for damages, participation in a first-aid course, therapy, contact or residence prohibitions, and measures for social stabilization. The goal is the prevention of further breaches of duty and the promotion of lasting legal rehabilitation.

Jurisdiction of the courts

Subject-matter Jurisdiction

Cases of failure to render assistance fall under different court jurisdictions depending on the severity of the offense’s consequences. For the basic offense, the District Court decides through a single judge, as the penalty provides for a maximum of six months imprisonment or a fine of up to 360 daily rates.
If the omission leads to a fatal outcome, the Regional Court is responsible, also with a single judge.
A lay judge or jury court is not provided for, as the sentencing framework is a maximum of one year imprisonment.

Local Jurisdiction

Jurisdiction generally lies with the court of the place of offense, i.e., the one in whose district the omitted assistance was committed or whose consequences occurred.
If the place of offense cannot be clearly determined, jurisdiction is based on the domicile of the accused, the place of arrest, or the seat of the public prosecutor’s office.
The proceedings are conducted in the place that appears expedient and appropriate.

Hierarchy of Courts

Against judgments of the District Court, an appeal to the Regional Court is permissible.
Decisions of the Regional Court can be challenged with an appeal or plea of nullity before the Higher Regional Court or the Supreme Court.

Civil claims in criminal proceedings

In cases of failure to render assistance, injured parties or surviving dependents can assert their civil law claims directly in the criminal proceedings. These include medical and treatment costs, compensation for pain and suffering, loss of earnings, funeral expenses, loss of maintenance, and emotional distress.

Through the joinder of private party, the statute of limitations for these claims is suspended for the duration of the criminal proceedings. Only after the conclusion of the criminal proceedings does the period resume, to the extent that the claim was not fully awarded.

A voluntary restitution for damages or an agreement with the injured party or relatives can have a mitigating effect on the sentence if it is timely, honest, and comprehensible. However, if it is determined that the offender consciously remained inactive or aggravated the dangerous situation, this circumstance generally loses its mitigating effect on punishment.

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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

• 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.
   Obtain medical reports; take photographs with date and scale and, where appropriate, X-ray or CT images. Store clothing, objects, and digital records separately. Prepare a witness list and contemporaneous recollection notes within two days at the latest.
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 for damages strategically.
   Payments or offers of reparation should be handled and documented exclusively through defense counsel. Structured compensation for damages has a positive effect on diversion and sentencing.

Your Benefits with Legal Assistance

Cases of failure to render assistance are among the most sensitive offenses against physical integrity. Such situations often arise from shock, overwhelm, or fear of consequences. What initially appears to be a spontaneous misreaction can have significant criminal consequences if an injured person is left without reasonable assistance.

The legal assessment depends on how clearly recognizable the need for help was, what actions would have been possible, and whether the omission actually contributed to the harm. Even minor differences in witness statements, medical findings, or digital evidence can be crucial for the legal classification.

Therefore, early legal representation is essential. It helps to reconstruct the actual course of events, secure evidence, and correct false conclusions. Especially in emotional or unclear situations, misjudgments can easily occur, which are difficult to refute without legal support.

Our law firm

• examines whether there is actually a punishable breach of duty or whether assistance was not reasonable or objectively impossible,
• analyzes police reports, medical records, and witness statements for inconsistencies,
• accompanies you throughout the entire investigation and court proceedings,
• develops a defense strategy that presents your situation realistically and comprehensibly,
• and decisively represents your rights before the police, public prosecutor’s office, and court.

An experienced criminal defense ensures that shock reactions, overwhelm, or errors are not prematurely classified as a punishable omission. It ensures that your conduct is assessed in the correct context and that the proceedings are fair, objective, and legally correct.
Thus, you receive a defense with a clear structure, legal precision, and personal strategy that aims for a just and balanced outcome. Its outcome aims.

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FAQ – Frequently Asked Questions

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