Accusation of Bodily Harm

How to behave when accused of bodily harm?

Whether as a poli­ti­cian putting up campaign posters, a profes­sional athlete in a dome­stic dispute, or a professor at the Univer­sity of Göttingen who regu­larly beat his doctoral student with a bamboo stick, bodily harm is wide­spread and appears in various forms.

If you find yourself accused of bodily harm, this article can serve as a legal over­view and guide on the steps you should consider taking.

If you have received a police summons for bodily harm under § 223 StGB, aggravated bodily harm under § 224 StGB, serious bodily harm under § 226 StGB, or negli­gent bodily harm under § 229 StGB, the follo­wing is advi­sable:

Try to stay calm. As a suspect in an inves­ti­ga­tion for bodily harm, you are not required to provide infor­ma­tion to the police.

The possible penalty varies signi­fi­cantly depen­ding on the specific bodily harm offense. Ther­e­fore, it is advi­sable to act quickly and seek the counsel of a lawyer expe­ri­enced in bodily harm cases.

When is the offense under § 223 StGB fulfilled?

Objec­tively, the offense of bodily harm under § 223 StGB is fulfilled if you have physi­cally mistreated another person or harmed their health.

The result of physical mistre­at­ment occurs when an abusive or inap­pro­priate treat­ment is present, which signi­fi­cantly impairs physical well-being or bodily inte­grity beyond minor harm.

A health impair­ment is defined as any induc­tion or aggrava­tion of a patho­lo­gical physical or psycho­lo­gical condi­tion. Pain sensa­tion is not a required element in either scenario.

There must be causa­lity between the act and the result of physical mistre­at­ment or health impair­ment, and the outcome must be objec­tively attri­bu­table to the individual’s conduct. This attri­bu­tion can be unders­tood as a correc­tive based on value judgments, and it is assumed when the beha­vior creates a legally disap­proved danger for the occur­rence of the outcome, and this danger mate­ria­lizes in a specific outcome-causing event.

Subjec­tively, bodily harm under § 223 StGB requires inten­tional conduct.

Inten­tional bodily harm is a rela­tive offense by complaint. Prose­cu­tion ther­e­fore takes place upon complaint, or if the prose­cu­ting autho­rity considers inter­ven­tion neces­sary due to the special public inte­rest in prose­cu­tion.

Aggravated bodily harm under § 224 StGB – A qualified offense

When aggravating, objec­tive circum­s­tances are present, which must also be inten­tional on a subjec­tive level, the offense of dange­rous bodily harm under § 224 StGB provides a signi­fi­cantly higher penalty range compared to § 223 StGB.

These objec­tive circum­s­tances are exhaus­tively listed in § 224 StGB. Thus, dange­rous bodily harm includes bodily harm by admi­nis­te­ring poison or dange­rous subs­tances (No. 1), using a weapon or other dange­rous tool (No. 2), commit­ting a treache­rous attack (No. 3), acting jointly with another parti­ci­pant (No. 4), or enga­ging in conduct that endan­gers life (No. 5).

One parti­cu­larly dange­rous mode of commis­sion under § 224 (1) No. 1 StGB is the admi­nis­tra­tion of poison or other harmful subs­tances.

“Poison” encom­passes any organic or inor­ganic subs­tance that, under certain condi­tions, is capable of causing serious health damage through chemical or chemico-physical action. The clas­si­fi­ca­tion depends on the type of subs­tance and the quan­tity used by the perpe­trator in the specific case. The ever­yday use of the subs­tance is irrele­vant; what matters is whether a signi­fi­cant health risk is present. For instance, overly salted pudding could be clas­si­fied as poison due to the risk of salt poiso­ning.

As a catch-all provi­sion, “other harmful subs­tances” comple­ment the term “poison.” These include subs­tances that act mecha­ni­cally or ther­mally, such as crushed glass, metal shavings, hot liquids, or radio­ac­tive mate­rials. Biolo­gical hazards, such as bacteria, viruses, and other patho­gens, are also included, though radia­tion or elec­tric current are not.

The method of admi­nis­tra­tion is varied and is not limited to a specific type of inges­tion. Subs­tances may be inhaled, swal­lowed, or absorbed through the skin, and do not neces­s­a­rily need to pene­trate the body’s inte­rior. External appli­ca­tion is suffi­cient if it poses a signi­fi­cant health risk.

§ 224 (1) No. 2 StGB applies to cases of bodily harm where the use of a weapon or other dange­rous tool poses a parti­cular danger to the victim.

For dange­rous bodily harm to be reco­gnized, the instru­ment used must act directly and imme­dia­tely on the victim’s body. If a perpe­trator drives a car at a victim, who is then injured while dodging, there is no direct impact, and ther­e­fore no offense of dange­rous bodily harm. However, if the victim is injured through direct contact with the car, it may apply.

Accor­ding to estab­lished case law, a dange­rous tool is any movable object that, due to its objec­tive nature and specific use in the case at hand, is capable of causing serious bodily injury. Immo­vable objects like walls, rocks, or floors that the victim is pushed against do not meet the criteria, nor do envi­ron­mental factors such as a cliff or the sun.

Body parts gene­rally do not qualify as dange­rous tools, with the excep­tion of a “shod foot.” The key factor here is not the foot itself but the shoe worn by the perpe­trator. For example, a light shoe is often not clas­si­fied as a dange­rous tool, while a heavy boot, such as a combat boot, often quali­fies.

An ever­yday object can also serve as a dange­rous tool if its specific use is capable of causing serious injury. Striking someone’s face with a coat hanger or key ring meets the criteria for dange­rous bodily harm, as does strang­ling with a scarf.

A “weapon” is a parti­cu­larly dange­rous tool speci­fi­cally deve­loped to cause signi­fi­cant harm to people. Mere threats or the use of a weapon without a dange­rous appli­ca­tion, such as a light blow with the handle of a firearm, does not neces­s­a­rily consti­tute the offense under § 224 (1) No. 2 StGB. There must be a dange­rous appli­ca­tion likely to cause serious injury.

§ 224 (1) No. 3 StGB encom­passes bodily harm invol­ving a treache­rous attack. Such an attack occurs when the assault is executed in a way that prevents the victim from prepa­ring for it. The attack must also aim to hinder the victim’s ability to defend. This applies when the perpe­trator hides their intent to injure, for instance, by feig­ning friend­li­ness, ambus­hing, or snea­king up. However, a sudden attack from behind or exploi­ting a moment of surprise does not meet the criteria for a treache­rous attack unless there was prior plan­ning of the deceit.

The offense of a treache­rous attack under § 224 (1) No. 3 StGB ther­e­fore requires deli­be­rate decep­tion and conce­al­ment of intent, making it impos­sible for the victim to defend them­selves. Each case must be carefully examined to assess the level of decep­tion and plan­ning.

The offense of joint execu­tion under § 224 (1) No. 4 StGB requires at least two indi­vi­duals to consciously coope­rate at the crime scene. It is not neces­sary for each parti­ci­pant to commit an act of injury. However, mere passive presence to bolster the main perpetrator’s intent is insuf­fi­cient. Joint action is estab­lished if actions such as preven­ting escape, handing over tools, or other supportive measures are taken, incre­asing the risk to the victim. Such actions indi­cate conscious coope­ra­tion and increase the risk for the victim, thereby fulfil­ling the criteria for joint execu­tion.

In cases of alleged joint bodily harm, each participant’s beha­vior must be carefully reviewed to clarify the element of conscious coope­ra­tion.

The ques­tion of when bodily harm through a life-endan­ge­ring act under § 224 (1) No. 5 StGB occurs is often legally conten­tious. This provi­sion prima­rily encom­passes any act that, conside­ring general and specific circum­s­tances, is suitable to endanger the victim’s life. It is not required for actual life danger to mate­ria­lize. This defi­ni­tion high­lights the elusive nature of the provi­sion and unders­cores the need for a compre­hen­sive case-by-case evalua­tion to ensure accu­rate legal assess­ment.

Since § 224 (1) No. 5 StGB is a so-called suita­bi­lity offense, any act gene­rally capable of crea­ting a life-threa­tening risk is suffi­cient. The risk need not mate­ria­lize. Similar to bodily harm with a dange­rous tool, the risk must arise directly from the life-threa­tening treat­ment itself. Cases in which imme­diate danger is caused not by the act but by external factors do not fall under § 224 (1) No. 5 StGB. For example, pushing someone onto a busy highway does not directly cause life danger but rather creates the risk of being run over.

Life-threa­tening actions are typi­cally those in which the danger arises directly from the act itself. Examples include repeated blows to the head, thro­wing someone into icy water, or threa­tening with a weapon likely to induce a heart attack. Choking can also be life-threa­tening, depen­ding on the dura­tion and inten­sity; mere bruise-like marks are insuf­fi­cient.

Further­more, a life-threa­tening act can also be committed by omis­sion if there is a legal duty to prevent the danger. Examples include failing to recall a life-threa­ten­ingly defec­tive product or inten­tio­nally negle­c­ting an infant’s nutri­tion. This demons­trates the comple­xity of the legal assess­ment and empha­sizes the importance of thorough case-by-case evalua­tion for an adequate defense in cases invol­ving § 224 (1) No. 5 StGB.

Serious bodily harm under § 226 StGB – A result-qualified offense

With a minimum impri­son­ment of one year as a felony, serious bodily harm under § 226 StGB carries a signi­fi­cantly increased penalty range.

The reason for this is that, in addi­tion to the inten­tional bodily harm under § 223 StGB, at least negli­gent causa­tion of one of the parti­cu­larly severe conse­quences exhaus­tively listed in § 226 StGB must be present. These include the loss of vision, hearing, or repro­duc­tive ability (No. 1); the loss of an important body part or its perma­nent inca­pa­city (No. 2); as well as perma­nent signi­fi­cant disfi­gu­re­ment or falling into protra­cted illness, para­lysis, a mental illness, or disa­bi­lity (No. 3). These must result from the bodily harm under § 223 StGB. In addi­tion to these obviously very serious conse­quences for the victim’s personal life, the high penalty is further explained by the consti­tu­tional prohi­bi­tion of discri­mi­na­tion against indi­vi­duals with disa­bi­li­ties, as estab­lished in Art. 3 (3) sentence 2 of the German Basic Law (Grund­ge­setz, GG).

If the perpe­trator acts inten­tio­nally or knowingly regar­ding the severe conse­quence and the connec­tion between the basic offense under § 223 StGB and the quali­fying outcome under § 226 StGB, the sentence under § 226 (2) StGB is not less than three years of impri­son­ment.

Negligent bodily harm under § 229 StGB

Bodily harm or health impair­ment is often inflicted negli­gently. The main diffe­rence from simple bodily harm under § 223 StGB lies in the subjec­tive compo­nent, as § 229 StGB requires only negli­gence.

If negli­gent bodily harm results in serious conse­quences within the meaning of § 226 StGB or § 227 StGB, this can only be considered at the level of senten­cing.

Cases of negli­gent bodily harm often raise issues concer­ning parti­ci­pa­tion in self-injury and self-endan­ger­ment, as well as consent in cases of third-party injury and third-party endan­ger­ment. These aspects involve complex case-by-case distinc­tions and can be clari­fied through consul­ta­tion with a specia­lized attorney.

What penalty can be expected for the accusation of bodily harm?

In the case of bodily harm under § 223 StGB, the penalty ranges from a fine to up to five years of impri­son­ment. An attempt at simple bodily harm is also punis­hable under § 223 (2) StGB.

In contrast, aggravated bodily harm under § 224 StGB carries a signi­fi­cantly higher penalty, ranging from six months to ten years of impri­son­ment, or in less severe cases, from three months to five years. An attempt at aggravated bodily harm is also punis­hable.

As a felony, serious bodily harm under § 226 StGB carries a minimum impri­son­ment of one year, up to ten years. In cases of inten­tional or knowing causa­tion, § 226 (2) StGB stipu­lates a minimum impri­son­ment of three years, whereas § 226 (3) StGB provides for a reduc­tion to six months to five years in less severe cases, or in the case of § 226 (2) StGB, to a minimum impri­son­ment of one year, up to ten years.

The seve­rity of the sentence depends criti­cally on the circum­s­tances of the specific case. In addi­tion to the circum­s­tances of the offense, any prior convic­tions of the perpe­trator play an important role. Further­more, a convic­tion may result in a record in the criminal record certi­fi­cate. In prin­ciple, fines are only noted if they exceed 90 daily units, or prison sentences if they exceed three months, assuming no other penal­ties are recorded. Addi­tio­nally, it is the task and goal of the defense attorney to prevent such a record if possible, as many employers require the presen­ta­tion of a clean criminal record.

Do I need a lawyer?

To keep the sentence as low as possible or ideally to avoid a convic­tion altog­e­ther, effec­tive support is essen­tial if you find yourself as a defen­dant in criminal procee­dings for a bodily injury offense. The penal­ties for bodily injury vary signi­fi­cantly and are parti­ally clas­si­fied as felo­nies. Ther­e­fore, it is highly recom­mended that you seek a specia­lized attorney as soon as possible.

As soon as you receive a summons as a defen­dant, it is essen­tial to contact a criminal law attorney. In cases of serious bodily harm under § 226 StGB, clas­si­fied as a felony, you have the right to a court-appointed attorney. If you choose to exer­cise this right, you should act imme­dia­tely and engage a quali­fied attorney. This will ensure that your repre­sen­ta­tion in court is guaran­teed by an expe­ri­enced defense attorney.

The law firm Mügge, Dr. Pitschel & Partner provides counsel and defense with years of expe­ri­ence in nume­rous cases invol­ving bodily injury offenses. If you have further ques­tions or are a defen­dant in criminal procee­dings, please feel free to contact us.