Abandonment of an Injured Person

Abandonment of an injured person according to § 94 StGB covers situations in which someone injures a person and then leaves them without the necessary assistance. Punishable is not only the initial blow, the accident, or the risky behavior, but above all the deliberate omission of assistance towards a person whose injury one has caused oneself, even if this injury was not unlawfully inflicted. Whoever creates the dangerous situation bears responsibility. Whoever evades this responsibility at the crucial moment accepts serious consequences for the victim. Typical scenarios include escalations after acts of violence, traffic accidents, risky leisure activities, or medically delicate situations in which the perpetrator recognizes the situation but fails to organize effective assistance, even though it would have been possible and reasonable.

objective elements of the offence

The objective elements of the offense describe the external prerequisites for abandonment. Crucial is whether someone causes an injury, recognizes the need for assistance, and nevertheless fails to provide reasonable assistance.

Steps of legal assessment

Object of the offense: An injured person whose physical impairment was caused by the perpetrator, even if the injury did not arise unlawfully.

Act of offense: The deliberate omission of necessary assistance. Assistance is understood as any action suitable for reducing the danger or initiating a rescue, such as an emergency call, first aid, or summoning third parties.

Result of the offense: The injured person remains in a concrete dangerous situation. In qualified cases, the omission leads to a serious injury or death.

Causality: The omission is causal if the assistance would have created a realistic chance of rescue or if the harm would have been avoidable without the inaction.

Objective attribution: The result is attributable if the perpetrator, through their omission, allows a danger caused by them to persist, even though they would be obliged to eliminate it.

Qualifying Circumstances

Serious Consequence

If the omission leads to serious bodily harm, the criminal weight of the act increases.

Fatal Consequence

If the injured person dies as a result of the omitted assistance, a particularly severe variant of the offense exists.

Limit of Reasonableness

No criminal liability exists if the assistance was objectively not reasonable, for example, in cases of significant self-endangerment or violation of other important duties.

Rule of Concurrence

Separate punishment is waived if the perpetrator is already convicted under a stricter provision for the injury caused.

Distinction from other offences

• § 83 StGB – Bodily Harm: Intentional injury of another person. Requires targeted harm or harm accepted with acquiescence. The offense concerns active conduct, not omission.
• § 84 StGB – Serious Bodily Harm: If the act leads to permanent health damage or significant physical impairment, it constitutes a qualification to simple bodily harm.
• § 85 StGB – Intentional Serious Bodily Harm: The serious consequence is brought about with intent. The perpetrator desires the severe 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 carelessly or negligently.
• § 91 StGB – Affray: Not a targeted bodily injury, but participation in a chaotic altercation involving at least three active participants. Mere 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 of necessary assistance towards a person one has injured. Crucial are the recognized need for assistance and the possibility to help without significant self-endangerment.

The abandonment of an injured person differs from general bodily harm offenses in that not the injury itself, but the deliberate omission of assistance after an injury caused is punished. It is an independent omission offense that emphasizes the special responsibility of the perpetrator.

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 providing assistance, as well as for any potential 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 utilization or gaps.

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

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Practical example

• Flight after bodily harm: After an argument, the victim remains severely injured on the ground. The perpetrator recognizes the situation but does not call emergency services and leaves. This constitutes abandonment of an injured person.
• Hit-and-run after an accident: A driver hits a pedestrian, recognizes the injury, and drives on without organizing assistance.
• Accident during leisure activity: After a fall during climbing, the companion notices symptoms of paralysis but does nothing. The omission of immediate alerting of emergency services is punishable.
• Injury in the workplace: During a dangerous work process, a colleague is injured. The person responsible leaves the workshop without providing first aid or getting help. Here, too, there is abandonment of an injured person.
• Unreasonableness of assistance: A person is injured in a fire. The perpetrator could only help by putting themselves in mortal danger. In this case, providing assistance is not reasonable and therefore not required under criminal law.

subjective elements of the offence

The subjective elements of the offense of abandonment require intent. The perpetrator must know or at least seriously consider it possible that they have caused an injury, that the injured person needs assistance, that assistance would be possible and reasonable, and yet consciously decide against doing anything.

An intention to worsen the consequences is not required. It is sufficient if the perpetrator remains indifferent or deliberately inactive, even though the emergency is recognizable to them. Whoever sees the danger and nevertheless does nothing acts intentionally.

No intent exists if the situation was objectively not recognizable as needing assistance or if someone is temporarily unable to act due to shock or being overwhelmed. Likewise, criminal intent is absent if assistance was actually impossible or not reasonable.

Decisive is whether the perpetrator recognizes or should have recognized the danger and consciously decides not to help, even though they were obliged and able to do so.

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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 where lawful conduct is unreasonable in an extreme predicament, such as when rendering aid or rescue would seriously endanger one’s own life.
• Putative Self-Defense: A mistake regarding the existence of a justification excludes intent, but leaves negligence unaffected if the breach of duty of care persists. Here, too: Anyone who acts in a recognizably risky manner cannot invoke supposed justifications.

Extinction of punishment and diversion

Withdrawal from Attempt

A withdrawal is generally not possible in the abandonment of an injured person, as the offense is already completed with the unlawful omission of assistance.
However, whoever provides timely and voluntary assistance before more serious consequences occur can achieve a mitigation of punishment or significantly weaken the accusation. Decisive factors are the timing, the effectiveness of the subsequent assistance, and the recognizable insight to correct the breach of duty.

Diversion

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

Diversion is not possible if the omission has led to serious consequences or the death of the injured person, or if the perpetrator has deliberately fled to avoid responsibility. In less serious cases, however, it can be an appropriate solution without a court conviction, given a confession, insight, and active reparation of damages.

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Sentencing and consequences

The severity of the penalty for abandonment of an injured person depends on the gravity of the breach of duty, the consequences that occurred, and the personal culpability. Crucial is whether the perpetrator recognized the danger and deliberately ignored it, or whether they remained inactive merely due to shock, fear, or a misguided reaction. Also decisive 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 providing assistance,
• the victim is deliberately left helpless,
• the omission has serious or fatal 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 sign of sincere remorse,
• subsequent reparation of damages or provision of assistance,
• shock or exceptional situation during the event,
• or an excessively long duration of criminal proceedings.

Austrian criminal law provides for the day-fine system for monetary penalties.
The number of day-fines depends on the gravity of culpability, the individual day-fine on the income circumstances. This ensures that the penalty remains comparably noticeable for everyone. If it is not paid, a substitute custodial sentence can be imposed.

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

The court can issue directives, for example, for reparation of damages, participation in a first-aid course or therapy, or it can order probation assistance. These measures serve to prevent future breaches of duty and promote stable social reintegration.

Penalty Range

In cases of abandonment of an injured person, the penalty depends on the extent of the consequences:

• Basic offense: Custodial sentence of up to one year or a fine of up to 720 day-fines.
• Serious bodily harm: Custodial sentence of up to two years.
• Fatal consequence: Custodial sentence of up to three years.

The sentencing framework takes into account that this is not an active act of injury, but an omission of assistance where responsibility exists. Nevertheless, the conduct is serious because it signifies the deliberate abandonment of a person in mortal danger.

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 extends to five years of imprisonment, the court shall impose a fine instead of a short custodial sentence of no more than one year. This regulation is also significant in cases of abandonment of an injured person, as it avoids a custodial sentence in simpler 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: Partial conditional suspension allows for a combination of unconditional and conditional parts of a sentence. For custodial 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 corresponds to the circumstances of the case.

§§ 50 to 52 StGB: The court can additionally issue directives and order probation assistance. Typical directives concern reparation of damages, therapy, contact or residency prohibitions, and social stabilization. The goal is the prevention of further offenses and the promotion of lasting legal rehabilitation.

Jurisdiction of the courts

Subject-matter Jurisdiction

Cases of abandonment of an injured person fall under different court jurisdictions depending on the severity of the offense’s consequence. For the basic offense, the District Court decides through a single judge, as the penalty provides for a maximum of one year imprisonment or a fine.
If the omission results in serious bodily harm or fatal consequence, the Regional Court is competent, also with a single judge.
A lay judge or jury court is not provided for, as the sentencing framework is a maximum of three years imprisonment.

Local Jurisdiction

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

Hierarchy of Courts

Appeals against judgments of the District Court are permissible to the Regional Court. Decisions of the Regional Court can be challenged with an appeal or a plea of nullity before the Higher Regional Court or the Supreme Court.

Civil claims in criminal proceedings

In cases of abandonment of an injured person, injured parties or surviving dependents may assert their civil claims directly in the criminal proceedings. These include medical and treatment costs, pain and suffering compensation, loss of earnings, funeral expenses, loss of maintenance, and emotional distress.

Through the joinder as a private party, the statute of limitations for these claims is suspended for the duration of the criminal proceedings. The limitation period only continues to run after the conclusion of the criminal proceedings, provided that the claim has not been fully granted.

A voluntary compensation for damages or an agreement with the injured party or their relatives may have a mitigating effect on the sentence if it is done promptly and sincerely. However, if it is determined that the perpetrator deliberately remained inactive or exacerbated the emergency situation, this circumstance loses its mitigating effect.

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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

A proceeding for abandonment of an injured person is one of the more serious cases in the area of bodily injury offenses. Such situations often arise from shock, being overwhelmed, or fear of consequences. What initially appears as a spontaneous misreaction can have serious legal consequences if an injured person is left without reasonable assistance.

The legal assessment depends on how recognizable the need for assistance was, what measures would have been possible, and whether the omission actually contributed to the damage. Even small differences in witness statements, medical expert opinions, or digital evidence can be decisive.

Therefore, early legal representation is indispensable. It helps to reconstruct the actual sequence of events, secure evidence in a timely manner, and correct inaccurate representations. Especially in stressful or confusing situations, a misjudgment of the behavior is quickly possible.

Our law firm

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

Experienced criminal defense ensures that shock reactions, misjudgments, or being overwhelmed are not prematurely assessed as criminal omission. It ensures that your behavior is judged in the correct context and that the proceedings are fair, objective, and in accordance with the rule of law. In this way, you receive a defense with clear structure, professional precision, and personal strategy, which works towards a just and balanced result.

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FAQ – Frequently Asked Questions

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