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.