Battery in Austrian criminal law

(If you wish to read this post in German, click here; for the Dutch version, click here.)

One of the most common crimes in Austrian criminal law is that of the Körperverletzung, or battery, i.e. causing another person bodily harm, typically through some act of physical violence. The rules for battery can be found in §§ 83 and following paragraphs of the Austrian Criminal Code (Strafgesetzbuch; StGB). § 83 StGB provides the basic rules; because of many further provisions (§§ 84-88 StGB), the act can have very different consequences for the person that committed it, ranging from communal service to several years of imprisonment.

This post offers the reader a brief overview of this topic. More specialized topics, such as self-defense, juvenile criminal law or the timeline of a criminal procedure are not discussed here. For a general overview of Austrian criminal procedure, click here.

Intent and negligence

In Austria, the act of battery – like most other criminal acts in Austrian law – requires a certain intent on the part of the perpetrator. A person will not act intentionally if he harms another person purely by mistake. This could however still constitute negligent – and criminally liable – behavior (negligent battery or fahrlässige Körperverletzung; see below). In addition, this could lead to civil liability.

Pursuant to § 5 StGB, a person acts with intent if he wants to bring about a certain set of facts that is criminally sanctioned. In this case, that would be the causing of bodily harm to another person. For this intent, it is sufficient that the person considers the possibility of these facts being realized to be a serious possibility and accepts this.

A person will moreover act deliberately (absichtlich) if he has actually made it his purpose to bring about certain circumstances (and when the law requires this type of intent). In a similar way, a person can act willfully (§ 5 pars 2 and 3 StGB). These are essentially elevated forms of intent.

As said above, intent is not always required for criminal liability. A person is already criminally liable if he has caused bodily harm not in a negligent manner (§ 88 StGB). Put briefly, this requires negligence as defined in the Austrian Criminal Code, which according to § 6 StGB is the case when a person does not behave with the required standard of care which – in that specific circumstance – is expected of him and which he able to meet.

A person also acts negligently if, simply put, he considers it a possibility that his actions may have certain effects but does not want to actually cause these. One can also act with gross negligence by behaving an unusually and particularly careless manner.

The act of battery and the resulting bodily harm

The act of battery (Körperverletzung) is committed by causing bodily harm to another person or by damaging this person´s health. As such, the act requires an actual injury or damage to a person´s health. Austrian criminal law does not explicitly define a “threshold” for what an injury is. Generally it can be said that bodily harm in the criminal sense has already been caused with smaller injuries, e.g. bruises and abrasions that do not disappear right away.

A person´s health will have been damaged if the act causes physical or psychological harm (if it is medically relevant, e.g. a depression), or if his physical well-being is reduced in a substantial way. If, for instance, the consumption of contaminated food causes a person to be ill for several days, this can be seen as a damage to his health.

Something that is distinct from battery is so-called abuse (Misshandlung). This may be somewhat confusing for English speakers. Abuse – in an Austrian criminal legal sense – means actions that are typically painful or unpleasant, but do not lead to actual injuries. Examples are slaps, shoving and pushing people. If, however, the abuse negligently results in an injury or a damage to another person´s health, the act of battery as defined in § 83 StGB will also have been committed. The question of whether something is abuse or battery can, as will be seen below, be relevant for the possible sentencing.

Types of battery

As mentioned, § 83 StGB is the central paragraph for battery-related crimes, as it lays down the definition of what battery is:

• He who causes bodily harm to another person or damages this person´s health can be punished with a prison sentence of up to a year or with a fine. The same applies to someone who abuses another person, thereby negligently causing bodily harm or damaging this person´s health. This, in a nutshell, is the act of battery in Austrian criminal law.

• § 83 par 3 StGB contains a qualification: whoever commits battery against ticket inspectors or ambulance personnel, and this during or because of this kind of work, can be punished with a prison sentence of up to two years.

§§ 84-88 StGB however define a multitude of varieties of the act of battery. Depending on which rule applies, the perpetrator might face very different possible punishments. Some of these rules are so-called qualifications, others are independent provisions.

A list follows below:

• Aggravated battery (schwere Körperverletzung; § 84 StGB): this provision sanctions more severe cases of battery with a prison sentence of up to three years:

  • Acts of abuse which in a negligent manner cause damage to a person´s health or inability to work with a duration of more than 24 days or an inability or a severe injury or damage to a person´s health;

  • Battery of government officials, witnesses and court experts during or because of their activities (e.g. attacking a police officer);

  • Committing at least three separate acts of battery for no apparent reason or by using a substantial amount of violence;

  • Aggravated battery in itself, meaning the causing of bodily harm or damage to another person´s health, thereby – even if only negligently – causing a severe injury or damage to a person´s health (see above). This is punishable more severely, namely with a prison sentence from six months up to five years;

  • Battery in a way that puts the victim´s life at risk, is committed in an organized way with at least two people or which is accompanied by severe suffering on the part of the victim.

• Battery with severe long-term effects (Körperverletzung mit schweren Dauerfolgen; § 85 StGB): this provision lays down stricter sentences for acts of abuse that negligently cause bodily harm with severe long-term effects as well as for acts of battery that lead to physical injury or damage to a person´s health with severe long-term effects. For the abuse, perpetrators risk a prison sentence of six months up to five years; for the acts of battery this is a prison sentence of one up to ten years

  As severe long-term effects, the law mentions certain impediments that will limit the victim forever or for a long time. Examples are (partial) blindness, deafness, mutilation or significant suffering.

• Battery with lethal consequences (Körperverletzung mit tödlichem Ausgang; § 86 StGB): As the title of this provision suggests, the abuse or battery here must result in the death of the victim. Perpetrators risk a prison sentence of one to ten years (abuse) or of one to fifteen years (battery).

• Aggravated deliberate battery (schwere absichtliche Körperverletzung; § 87 StGB): this sanctions aggravated battery (see above) with a stricter sentence in the event that it is committed deliberately. In other words, it must have been the perpetrator´s objective to cause a severe injury. In this case, the perpetrator faces a prison sentence of one up to ten years.

  If the aggravated deliberate battery was committed against public officials, witnesses or court experts during or because of their respective activities, the minimum punishment is increased to two years´ prison sentence. An even stricter punishment with a prison sentence of one up to fifteen years will apply if the act results in severe long-term effects or even death for the victim.

• Negligent battery (Fahrlässige Körperverletzung; § 88 StGB): By negligently causing bodily harm to another person, perpetrators can face a prison sentence of up to three months or a fine. Additional rules can however eliminate or increase the possible punishment.

In summary, especially the following circumstances can cause a sentence to be more severe:

·        Battery of government officials, witnesses and court experts during or because of their activities (e.g. attacking a police officer);

·        Aggravated battery, i.e. causing severe bodily harm;

·        Battery with severe long-term effects (e.g. blindness);

·        Battery with lethal consequences;

·        Aggravated and deliberate battery.

Some practical aspects

Damages and other costs

It should be noted that victims of battery are entitled to compensation for their injuries. In practice, this compensation as compensation for pain and suffering. In addition to that, additional costs such as treatment costs can be claimed. If an act of battery ends with a criminal court procedure, the court in the event of a conviction will in principle also decide on any claims of the victim. These can be substantial. If they however exceed the actual sum granted by the judge, the victim will have to enforce any additional claims through a civil procedure. Unlike in a criminal procedure, the victim, acting as a plaintiff, however faces certain financial risks, should he lose a procedure.

Settlement (Diversion)

If the committed act is punishable with a prison sentence of no more than five years, if the perpetrator´s guilt or culpability is not deemed to be severe, if the facts of the case are sufficiently clear and if certain other requirements are met, an initiated procedure can also end with a settlement (known as Diversion). In this case, the perpetrator will perform certain actions or services, e.g. paying a sum of money as compensation. The advantage of this kind of settlement is that fact that the perpetrator is not actually convicted.

Suspended or unconditional sentences

Sentences can be unconditional or suspended with a certain probationary period. This always depend on the concrete circumstances. One other possibility is a partially suspended sentence.

Legal guidance recommended

People facing criminal charges are urgently recommended to seek legal counsel as soon as possible. I offer my support and guidance in criminal procedures in Austria. Of course, I do so entirely in English. Feel free to contact me by using the form below, writing me at office@vastenburg.at or calling me at 0043 6804446590.  General information on Austrian criminal procedure can be found here.

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