General information about assault
In Austria, bodily injury offences are regulated in Sections 83–88 of the Austrian Criminal Code (StGB). In principle, an assault occurs when a person causes physical injury to another or impairs their health. The distinction between the basic offence under Section 83 StGB and its qualified forms is determined by several factors. First, the severity of the injury and the nature of the act itself are essential criteria. In addition, special circumstances may influence which section applies and whether the offence is considered aggravated. These circumstances include, for example, acts of violence committed against certain protected groups – such as public officials – or the use of dangerous means.
Assault (Sec 83 StGB)
The “basic offence” of bodily harm is defined in Sec 83 StGB. Anyone who causes physical injury or injury to the health of another may be punished for assault under Sec 83 para 1 StGB. Anyone who does bodily harm and thereby negligently causes physical injury or injury to health is also punishable (Sec 83 para 2 StGB).
Injury
An injury to the body is understood as a not insignificant impairment of physical integrity. Wounds, swelling, sprains, dislocations, fractures, and other lesions – as well as loosened teeth – are in any case covered by the term of bodily injury.
It should be noted that, according to established case law, bodily injury does not necessarily have to be accompanied by pain. Pain is merely considered an indication that an injury may exist. In the view of the Austrian Supreme Court, this principle also applies to impairments of health. Accordingly, an assault may constitute a criminal offence even in the absence of pain.
Damage to health
Damage to health refers to physical or psychological functional impairments that have pathological relevance. In addition to physical ailments, mental and emotional distress is also taken into consideration. Examples of damage to health include salmonella infections, states of shock, and various forms of poisoning — including severe intoxication and narcotic states. However, a mere state of sleep caused by sleeping pills does not constitute damage to health.
Abuse as a criminal act (para 2)
In order to be guilty of assault, the perpetrator must at least physically mistreat the victim. This involves using physical force against another person’s body. This must result in an impairment of the victim’s physical well-being to a not insignificant degree. Classic examples of mistreatment include pushing, slapping, knocking over and tripping up.
Intent and negligence
In contrast to negligent assault (Sec 88 StGB), in the case of assault under Sec 83 StGB, the perpetrator must intentionally cause a bodily injury or damage to health at the time of the offence. It is sufficient if the accused seriously considers it possible and accepts that his actions will injure the victim or damage their health (conditional intent according to Sec 5 para 1 StGB).
In the case of Sec 83 para 2 StGB outlined above, this intent to cause injury does not have to be present for criminal liability. It is sufficient that the perpetrator intentionally (again, conditional intent) mistreats someone else and thereby negligently causes injury or damage to health. Intent to mistreatment is therefore sufficient.
Negligence is assumed when an objective breach of the required duty of care has occurred. Such a breach may arise from the violation of a legal provision (e.g., road traffic regulations), a specific set of conduct rules (such as the International Ski Federation rules), or, subsidiarily, from deviation from the conduct expected of a “standard person” – that is, a prudent and reasonable individual from the perpetrator’s social environment. In addition, criminal negligence requires that the perpetrator acted subjectively negligently. This means that the individual must be personally culpable for having acted objectively negligently in the specific situation at hand.
Sentence
Anyone who, pursuant to Sec 83 para 1 StGB, causes physical injury or injury to the health of another person, or who, pursuant to Sec 83 para 2 StGB, mistreats another person and thereby negligently causes physical injury or injury to their health, shall be punished with imprisonment for up to one year or a fine of up to 720 daily rates.
However, a prison sentence of up to two years shall be imposed if the perpetrator commits an assault against a driver or inspector of a public transport entity (Sec 83 para 3 no 1 StGB). The same penalty applies under Sec 83 para 3 no 2 to assaults caused to persons who work in a legally regulated health profession, in a recognised emergency medical service or in the administration of such a profession, in particular a hospital, or as a member of the fire brigade. For example, doctors, paramedics, nurses and firefighters are protected by this section.
Serious assault (Sec 84 StGB)
Anyone who, pursuant to Sec 84 para 1 StGB, does bodily harm to another person and thereby negligently causes injury to health for a period of more than 24 days or an incapacity to work commits serious assault. Similarly, according to Sec 84 StGB, anyone who inflicts a serious injury on another person is liable to prosecution. This includes, for example, the opening of major blood vessels, comminuted nasal bone fractures, most other bone fractures, and a wide range of similarly serious injuries.
Serious assault also occurs in the following situations:
- A person assaults (Sec 83 para 1 or 2 StGB) a government official, witness or expert witness during or because of the execution of their duties or the fulfilment of their obligations (Sec 84 para 2 StGB);
- A perpetrator commits at least three separate acts (Sec 83 para 1 or 2 StGB) unprovoked and by using substantial violence (Sec 84 para 3 StGB);
- Any person who causes physical injury or injury to the health of another thus causing, even if negligently, serious bodily harm or injury to health (Sec 84 para 4 StGB);
Serious assault is also deemed to have occurred when a person commits an assault (Section 84 para 5 StGB)
- in a manner involving risk of death,
- in concert with at least two persons, or
- by inflicting exceptional pain.
Sentence
If the bodily injury results in an impairment to health or incapacity for work lasting more than 24 days, or if the perpetrator has inflicted an inherently serious injury or health impairment, a prison sentence of up to three years may be imposed.
Anyone who injures another person or impairs their health and thereby causes serious bodily injury or a serious health impairment is liable to imprisonment for a term of six months to five years. It is sufficient that the serious consequence was caused negligently. The considerations on negligence outlined above apply here as well.
In cases of assault occasioning grievous bodily harm (Section 85 StGB), assault causing death (Section 86 StGB), and serious assault with direct intention (Section 87 StGB), stricter penalties apply.
Criminal defense by a specialised lawyer in cases of assault allegations
In 2023, more than 42,000 complaints of assault (Sec 83 StGB) were filed in Austria. Only about10% of these ultimately led to a conviction of the perpetrator. A thorough and conscientious criminal defense is often the decisive factor in this low conviction rate. If you have committed the offence of assault, do not hesitate to consult a lawyer specialising in criminal law. He will assist you in reviewing the facts of the case, represent you before the police or in court and support you in all phases of the criminal proceedings.
In addition, your criminal defence lawyer will accompany you to the interrogation as an accused and ensure that your rights as an accused are protected. It is therefore advisable to consult a criminal defence lawyer at the beginning of the investigation in order to develop a targeted defence strategy and implement it from the outset.
Victim of assault? Enforce claims through private participation
If you have been the victim of assault, you should consider reporting the incident to the police or the public prosecutor’s office. A lawyer will assist you in preparing a statement of facts or criminal complaint and, if necessary, will subject your case to a legal review and initial assessment. He will also explain your legal options as the victim of a crime and can outline all the advantages and disadvantages of the respective options.
In addition, a lawyer will support you in the context of private participation. Through a declaration of joining the criminal proceedings as a private party, it ispossible to assert claims for damages and pain and suffering directly in the criminal proceedings. In certain cases, civil law claims can also be enforced in a lawsuit before the competent civil court – a lawyer is even mandatory for claims exceeding EUR 5,000. Regardless of whether legal representation is mandatory or not, the support of a lawyer is recommended in any case.
