Manslaughter
- Manslaughter
- objective elements of the offence
- Distinction from other offences
- Burden of proof and evaluation of evidence
- Practical example
- subjective elements of the offence
- Unlawfulness and justifications
- Extinction of punishment and diversion
- Sentencing and consequences
- Range of punishment under Section 76 of the Austrian Criminal Code (StGB)
- Imprisonment and (partially) suspended sentence
- Jurisdiction of the courts
- Overview of criminal proceedings
- Rights of the accused
- Practical guidance and behavioural advice
- Frequently Asked Questions – FAQ
Manslaughter
Manslaughter pursuant to Section 76 of the Austrian Criminal Code (StGB) is committed when a person intentionally kills another human being but acts in a state of emotional agitation or distress so intense that it decisively influences their conduct. Such conditions may arise from sudden excitement, fear, despair, or profound inner conflict. In this situation, the offender does not act with premeditation but under the immediate influence of an exceptional emotional disturbance.
Intentional killing committed in an exceptional emotional state with diminished culpability.
Peter HarlanderHarlander & Partner Rechtsanwälte „Affekt und Schuld schließen einander nicht aus sondern verändern nur den Blick auf das Motiv.“
objective elements of the offence
The objective element describes the external aspect of the event. It answers the questions of who did what, with what means, what result occurred, and whether there is a causal link between the act and the serious injury that followed.
Steps of legal assessment
- Act of commission: physical interference (e.g. hitting, pushing, strangling, stabbing, shooting) or unlawful omission in the presence of a legal duty to act (guarantor position).
- Result of the act: death of another human being.
- Causation: The act must have actually caused the death. In other words, without the offender’s conduct, the death would not have occurred. If a person fails to act despite having a duty to intervene, it must be assessed whether the death would, with a high degree of probability, have been preventable had timely action been taken.
- Objective attribution: The result must materialize the legally disapproved risk created by the offender. Independent, self-endangering conduct of the victim or atypical intervening causes by third parties may exclude attribution.
Sebastian RiedlmairHarlander & Partner Attorneys „Gerichte prüfen beim Totschlag nicht nur, was getan wurde, sondern warum es geschah.“
Distinction from other offences
Classification of offences against physical integrity:
- Section 75 StGB – Murder: intentional killing committed with calm deliberation, premeditation, and particularly reprehensible motives.
- Section 77 StGB – Killing on request: killing committed at the explicit, serious, and insistent request of the victim.
- Section 80 StGB – Negligent homicide: death caused without intent.
Offences of bodily harm under Sections 83 et seq. of the Austrian Criminal Code are absorbed by the homicide offence, since death as the gravest consequence encompasses all lesser injuries.
Distinction between manslaughter and murder
In cases of murder, the offender’s conduct is characterised by calmness, planning, and inner determination; the perpetrator deliberately intends to cause death. Manslaughter, by contrast, is driven by a violent emotional upheaval that significantly impairs self-control.
Murder reflects a cold, calculated intent, whereas manslaughter stems from a momentary state of emotional overload.
Peter HarlanderHarlander & Partner Rechtsanwälte „Emotionale Ausnahmezustände rechtfertigen keine Tat, sie erklären sie. Das ist der juristische Unterschied.“
Burden of proof and evaluation of evidence
Public prosecutor’s office: bears the burden of proof regarding the act, the serious result, causation, attribution, and, where applicable, qualifying elements of the offence.
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, digital metadata, and expert opinions on the severity of the injury.
Choose your prefered dateFree initial consultationPractical example
- Killing during a heated confrontation following sudden provocation, in which the offender loses control over their actions.
- Killing of a long-term partner in a moment of profound despair or jealousy.
- Strangling a person during an argument, triggered by sudden emotional overload.
- Killing a family member in a panic reaction during a violent confrontation.
- Mere anger or rage is not sufficient if there was still time for reflection.
subjective elements of the offence
Intent to kill is required, either direct or conditional. The offender recognises the possible death of the victim and accepts it.
What characterises manslaughter is that the act is committed in a state of emotional turmoil, triggered by anger, despair, or fear. The perpetrator’s will is determined by the immediate emotional condition, not by a deliberate, premeditated decision.
Case law requires that the emotional agitation be substantial and significantly impair the offender’s capacity for self-control. Negligence is not sufficient.
Sebastian RiedlmairHarlander & Partner Attorneys „Eine Verteidigung im Totschlagsverfahren verlangt Feingefühl, jurische Präzision und psychologisches Verständnis.“
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
In rare exceptional cases, criminal proceedings may conclude without a conviction, for instance in the event of a withdrawal from an attempted offence. A voluntary withdrawal occurs when the offender independently halts the further execution of the act or succeeds in preventing the death.
Diversion is generally excluded in cases of manslaughter, as the offender’s guilt is too severe. It may only be considered in exceptional situations involving minimal consequences of the act and demonstrably substantial efforts at reparation.
Sentencing and consequences
The severity of a sentence depends on the offender’s culpability and the consequences of the act. The court takes into account the seriousness of the injuries, the degree of danger or recklessness of the conduct, and whether the act was premeditated or spontaneous. Personal circumstances are also considered, such as prior convictions, living situation, willingness to confess, and efforts to make amends.
Aggravating factors include multiple offences, particular ruthlessness, or attacks on defenceless persons.
Mitigating factors include a clean criminal record, a comprehensive confession, restitution, or contributory behaviour by the victim. A lengthy duration of the criminal proceedings may also have a mitigating effect.
Austrian criminal law applies the day-fine system for monetary penalties: the number of day-fines depends on the gravity of culpability, while the amount of each day-fine is based on the offender’s income. This ensures that a fine has an equally perceptible impact on all offenders. If the fine is not paid, it may be converted into a substitute term of imprisonment.
A prison sentence may be wholly or partially suspended if it does not exceed two years and a positive social prognosis exists. In such a case, the convicted person remains at liberty but must prove themselves during a probation period of one to three years. If all conditions are met, the sentence is deemed finally suspended.
Courts may also impose instructions, such as requirements for restitution, therapy, or contact restrictions, and may order probationary supervision. The aim is always to reduce the risk of reoffending and to promote a stable way of life.
Choose your prefered dateFree initial consultationRange of punishment under Section 76 of the Austrian Criminal Code (StGB)
- Imprisonment from one to ten years.
- In particularly serious circumstances, the range of punishment may be exceeded but remains clearly below that prescribed for murder.
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: Regional Court sitting with lay judges.
Local jurisdiction: Place of the act or the result; subsidiarily the offender’s residence or place of apprehension.
Appeal instances: Appeal to the Higher Regional Court; nullity appeal to the Supreme Court.
Civil claims in criminal proceedings
In cases of attempted manslaughter, the surviving victim may join the criminal proceedings as a private party and assert civil claims such as compensation for pain and suffering, medical expenses, loss of earnings, or property damage. Joining the proceedings interrupts the civil statute of limitations to the extent of the claim filed. If the claim is not fully granted, it can subsequently be pursued before the civil court.
In cases of completed manslaughter, this right is granted to the surviving relatives. They may claim compensation for funeral expenses, loss of maintenance, or emotional distress. An early and well-documented statement of damages facilitates the enforcement of such claims.
A structured compensation for damages or a settlement with the victim’s relatives may have a mitigating effect on the sentence in cases of attempted homicide, but it has no relevance to the sentencing in cases of completed murder.
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.
Practical guidance and behavioural advice
- 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. - 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. - 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. - 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. - 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. - 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. - 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. - 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 charge of manslaughter is among the most serious and sensitive criminal proceedings. Such acts often stem from intense emotional strain and exceptional conflict situations in which the accused has lost control over their actions. The legal boundary between an impulsive, affect-driven reaction and a deliberate killing is narrow, which makes every detail of the incident crucial. Even minor inconsistencies in psychological reports or witness statements can determine guilt or acquittal.
Early legal representation is therefore essential to secure evidence, critically examine expert opinions, and clearly present the accused’s exceptional psychological situation.
Our law firm
- carefully analyzes whether an exceptional emotional state or situation of distress truly existed,
- reviews psychiatric and psychological expert opinions for plausibility and professional quality,
- supports you throughout the entire investigation and court proceedings,
- works with experienced forensic experts to accurately assess the emotional circumstances,
- develops an individual defense strategy that takes into account the course of events, motives, and psychological factors,
- and assertively protects your rights before the police, the public prosecutor’s office, and the court.
An experienced criminal defense ensures that human reactions in extreme situations are properly understood and legally assessed. This provides you with an objective, comprehensive, and case-specific defense that takes your personal situation seriously and purposefully aims for a fair judgment.
Peter HarlanderHarlander & 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.“
