Severe Bodily Harm

Severe Bodily Harm

Severe bodily harm is classified as a qualified offense against physical integrity and is characterized by the fact that the resulting consequences of bodily harm significantly exceed the ordinary extent. It is always present when the act results in a serious, long-lasting, or even permanent impairment of health. Typically, these are injuries that endanger life, leave permanent damage, or exclude the ability to work for several weeks. The law thus aims not only to protect physical integrity but also to safeguard a person’s long-term health, performance, and personal quality of life. Therefore, what is always decisive are the actual effects of the act in the specific case, and not solely how brutally it was carried out or what means the perpetrator used.

Severe bodily harm occurs when an act causes a long-lasting, life-threatening, or permanently damaging health impairment.

Peter Harlander
Harlander & Partner Rechtsanwälte „Schwere Körperverletzung bedeutet nicht bloß einen heftigen Angriff, sondern eine tiefgreifende Beeinträchtigung der körperlichen oder psychischen Funktionsfähigkeit – das Gesetz schützt die langfristige Gesundheit des Menschen.“

objective elements of the offence

The objective element constitutes the external aspect of the event. It concerns who, what, with what, what result – and whether the act causes the severe outcome and is attributable to it.

Steps of legal assessment

• Object of the offense: any other living person.
• Actus reus: physical impact (hitting, pushing, kicking, strangling, using dangerous tools) or unlawful omission (in case of a guarantor position).
• Result of the offense: Occurrence of a severe injury consequence. Required is a health impairment or incapacity to work lasting longer than twenty-four days, an inherently severe injury (e.g., bone fracture, loss of a sensory organ), or a danger to life. Decisive is the actual health impairment, not merely the attack itself.
• Causality: conditio sine qua non; in case of omission: hypothetical prevention of the outcome with high probability.
• Objective attribution: Realization of the legally disapproved risk created in the severe outcome (scope of protection; no completely atypical third-party course or independent misconduct by the victim).

Qualifying Circumstances

Increased penalty threat, especially in constellations of para. 4 (e.g., severe consequence in intentional bodily harm; penalty framework up to 5 years).

Distinction from other offences

In cases of grave consequences, § 83 StGB with qualification no longer applies; instead, the independent offenses take effect:

• § 84 StGB – severe bodily harm (e.g., long-lasting or life-threatening health impairment),
• § 85 StGB – intentionally severe bodily harm,
• § 86 StGB – bodily harm with fatal outcome.

Thus, § 84 StGB represents a distinct level of escalation, which becomes relevant whenever the injury outcome significantly exceeds the ordinary impairment and a lasting damage occurs.

Burden of proof and evaluation of evidence

• Public Prosecutor’s Office: bears the burden of proof for the act, severe outcome, causality, attribution, and, if applicable, qualification criteria.
• 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 (e.g., CCTV, bodycam), digital metadata, expert opinions on the severity of the injury.

Sebastian Riedlmair
Harlander & Partner Attorneys „In Verfahren nach § 84 StGB entscheidet nicht die Lautstärke des Vorwurfs, sondern die Beweislage: Nur eine sauber dokumentierte medizinische Grundlage trägt eine Verurteilung.“

Practical example

• Punch to the head with skull contusion and several weeks of incapacity to work: regularly § 84 StGB.
• Fall after a forceful push, resulting in a forearm fracture: severe bodily harm due to longer healing period and functional impairment.
• Strangulation with shortness of breath and hemorrhages in the neck: typical severe consequence with increased danger to life.
• Kick to the abdomen causing a splenic rupture: life-threatening health impairment, thus § 84 StGB.
• After a fight, loss of a tooth or permanent facial scar: inherently severe injury with permanent disfigurement.

Borderline Cases:

Temporary pain or redness without demonstrable health disorder is insufficient. A situation of self-defense excludes unlawfulness if the defense was necessary and proportionate.

subjective elements of the offence

• § 84 StGB requires intent regarding the bodily harm and at least conditional intent regarding the severe consequence. The perpetrator must seriously consider the possibility of grave or permanent damage and accept it.
• Negligent causation of a severe consequence falls under § 88 para. 4 StGB.

Intent is regularly proven through circumstantial evidence: intensity of the attack, body region, means of offense, continuation despite recognizable danger, behavior before and after the act.
If a plausible explanation is missing as to why the perpetrator could not foresee the severe consequence, conditional intent is usually affirmed.

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.
• 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

Withdrawal from attempt: Timely voluntary abandonment or prevention of the outcome leads to no punishment for attempt. Decisive factors are voluntariness, stage (completed/uncompleted attempt), and the suitability of countermeasures.

Diversion: Termination of proceedings without conviction in cases of non-severe guilt, clarified facts, and suitable measures (monetary payment, community service, probation/parole, victim-offender mediation). No criminal record entry.

Sentencing and consequences

Guiding Principle: Severity of guilt, extent of damage/endangerment, breaches of duty, degree of planning, recklessness, special/general prevention. Aggravating factors: Multiple offenses, relevant prior convictions, particular recklessness, offense committed in front of children, among others. Mitigating factors: Blamelessness, confession, compensation for damages, co-responsibility of the victim, long duration of proceedings, stable lifestyle.

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. This provision is particularly relevant for the basic case of Section 83 of the Criminal Code, as it regularly avoids a custodial sentence, provided that neither special nor general preventive reasons preclude it.

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

Substantive jurisdiction: In basic cases (§ 84 para. 1 StGB ) the Regional Court has jurisdiction, as the penalty framework exceeds two years.
Territorial jurisdiction: Court of the place of offense or place of outcome; in case of an unclear place of offense, alternatively domicile, place of residence, or place of apprehension.
Instances: Appeal to the Higher Regional Court, nullity appeal to the Supreme 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

Proceedings for severe bodily harm can have far-reaching consequences – from custodial sentences to high claims for damages. Early legal representation secures your rights, protects against misjudgments in medical assessment, and ensures a strategically sound defense.

Our law firm:

• examines whether a severe outcome in the sense of § 84 StGB actually exists,
• accompanies you throughout the investigation and main proceedings,
• secures exculpatory evidence and medical expert opinions,
• submits applications for diversion or conditional clemency,
• supports victims in asserting claims for damages and pain and suffering,
• consistently safeguards your rights and interests vis-à-vis the police, public prosecutor’s office, and court.

Peter Harlander
Harlander & Partner Rechtsanwälte „Machen Sie keine inhaltlichen Aussagen ohne vorherige Rücksprache mit Ihrer Verteidigung. Sie haben jederzeit das Recht zu schweigen und eine Anwältin oder einen Anwalt beizuziehen. Dieses Recht gilt bereits bei der ersten polizeilichen Kontaktaufnahme. Erst nach Akteneinsicht lässt sich klären, ob und welche Einlassung sinnvoll ist.“

Frequently Asked Questions – FAQ