Assault in Austria: Difference Between Minor and Serious Bodily Injury

For suspects, criminal proceedings for bodily injury can be very unpleasant – they may face substantial fines, compensation claims from victims (pain and suffering damages) and social insurance providers (medical treatment costs), and in the worst case even a prison sentence.

For victims, on the other hand, the focus is on coming to terms with the psychological and physical harm suffered, as well as achieving justice.

This article explains in clear terms the legal elements of the offence of bodily injury, the differences between minor (simple) bodily injury and serious bodily injury under the Criminal Code (StGB), and what you can expect in criminal proceedings for bodily injury.

What is Minor Bodily Injury (§ 83 Austrian Criminal Code)?

Minor bodily injury is the basic offence. A person commits a criminal offence if they:

• intentionally injure another person’s body ior damage their health, or
• intentionally mistreat someone and thereby negligently cause an injury.

When Does Bodily Injury Exist in Legal Terms?

Bodily injury is any not entirely insignificant interference with a person’s physical integrity. Examples include:

• bruises
• contusions
• swelling
• cuts or scratches

A brief skin reddening without further impairment is generally not sufficient.

Note: Pain alone does not automatically fulfil the legal definition, but it may serve as an indication of an injury.

What Does “Mistreatment” Mean?

Mistreatment generally refers to any application of physical force to the body that significantly impairs a person’s physical well-being.

Examples include:

• kicking
• slapping,
• pushing someone over
• throwing someone to the ground

Subjective Intent

For bodily injury, conditional intent with regard to the mistreatment or the bodily injury is sufficient.

What Penalty Applies to Minor Bodily Injury?

Minor bodily injury is punishable by imprisonment of up to one year, or a fine of up to 720 daily penalty units.

If the offender commits bodily injury against a driver or inspector of a public transport vehicle, the penalty may be up to two years’ imprisonment.

When Is Bodily Injury Considered Serious? (§ 84 Austrian Criminal Code)

Bodily injury is considered serious if:

• the damage to health lasts more than 24 days,
• the victim becomes unable to work for more than 24 days, or
• the injury is inherently serious.

What Is an “Inherently Serious Injury”?

Whether an injury is “inherently serious” is determined through an overall assessment of the circumstances.

Case law considers factors such as: the importance of the affected organ the severity of functional impairment and pain, the duration and uncertainty of the healing process, the risk of complications. Several injuries that are individually minor may, in their overall effect, be considered serious bodily injury.

Penalties for Serious Bodily Injury

If the offender intentionally mistreats the victim but causes serious bodily injury only through negligence, the penalty can be up to 3 years’ imprisonment.

If the offender intends to cause at least minor bodily injury and thereby – even if only negligently – causes serious bodily injury, the penalty ranges from 6 months to 5 years’ imprisonment.

In certain special cases, an act that would otherwise be minor bodily injury is legally classified as serious bodily injury and punished with 6 months to 5 years’ imprisonment, for example:

If the offender injures a public official, witness, or expert during the performance of their duties;

if the bodily injury is committed

• if the bodily injury is committed
• in agreement with at least two other persons, or
• uby inflicting particular cruelty.

It should be noted that even more severe penalties apply in cases of bodily injury with serious permanent consequences (§ 85 StGB), bodily injury resulting in death (§ 86 StGB), intentional serious bodily injury (§ 87 StGB).

No Criminal Liability in Cases of Self-Defence or Defence of Others

Not every act causing bodily injury is punishable. The Criminal Code provides grounds of justification and grounds excluding culpability. An important justification is self-defence or defence of others. Anyone who protects themselves or others against a current or imminent unlawful attack on life, health, physical integrity, sexual integrity, or property by means of necessary defence generally acts lawfully.

The defence must be the least severe means suitable to repel the attack. However, the defender does not have to take risks regarding the effectiveness of the defensive measure.

If the permissible limits of self-defence are exceeded, this is called excessive self-defence. The act is generally unlawful. However, if the excess results solely from shock, fear, or fright, the offender is excused with respect to the intentional offence – unless the excess results from negligence. In that case, the offender may be liable for negligent bodily injury.

Conclusion & Recommended Action in Cases of Bodily Injury

Criminal proceedings for bodily injury can have serious consequences. Often they arise from spontaneous actions, for example during, disputes in road traffic altercations in bars or restaurants, family conflicts. The specific circumstances of each individual case are always decisive.

Even where bodily injury was committed intentionally, criminal proceedings do not necessarily have to end with a conviction. Under certain conditions, the case may be resolved through diversion – even where serious bodily injury is alleged. Diversion not only avoids an entry in the criminal record but often also offers financial advantages.

For suspects, a professional defence strategy can make the difference between an acquittal, a conviction, or a diversionary resolution.

Therefore: Consult a criminal defence lawyer as early as possible, particularly before a suspect interrogation. Targeted legal assistance significantly increases the chances of a favourable outcome.

Victims of bodily injury are also advised to consult a lawyer already during the investigation phase. A lawyer can assist with submitting a statement of facts and asserting compensation claims during the investigation and at trial.

Are you a suspect or a victim in criminal proceedings for bodily injury? Contact us now for a confidential initial consultation.