General
The core of the provision is readily understandable: both human life and physical integrity are protected. After causing bodily harm, the perpetrator has a personal duty to provide assistance. This obligation takes on particular significance in the healthcare sector (for example, in cases of medical malpractice or complications following medical procedures), but also applies to everyday situations such as road traffic accidents or workplace scenarios (e.g. accidents at work).
Elements of the offence under Section 94 StGB
Objective elements
Anyone who fails to provide the necessary assistance to another person whose bodily injury (Sec 83 StGB) they have caused, even if not unlawfully (e.g. through self-defence), commits the offence of abandoning an injured person.
Who can be the perpetrator?
Sec 94 StGB is a special offence. This means that the direct perpetrator can only be the person who caused the preceding negligent or intentional bodily injury. Mere contributory causation is generally sufficient. A person who causes injury justifiably, i.e. does not commit a criminal act (e.g. self-defence or emergency assistance), nevertheless remains generally obliged to provide assistance.
Necessity of providing assistance
The necessity of providing assistance is determined by the injured person’s need for help. Such a need exists if a reasonable, sensible person would seek medical or other assistance in the specific situation. In principle, injuries justify the assumption of a need for assistance. However, this excludes mere minor injuries, such as small grazes or cuts, as well as slight bruises or sprains, which may be classified as negligible.
The decisive factor is always the overall impression formed objectively. A need for assistance is deemed to exist if a conscientious and prudent observer, taking into account all the circumstances of the individual case, concludes that a person requires assistance.
A person who is already dying and therefore cannot be saved may also be deemed to be in need of assistance. In such cases, at least psychological support must be provided to alleviate the situation for the person concerned.
In what form must assistance be provided?
In principle, the person responsible for the injury must provide assistance themselves and without delay (personal duty). This duty ceases only when the injured person receives sufficiently competent assistance (from a doctor or emergency services) from third parties. Merely alerting the emergency services or making an emergency call is, in itself, generally not sufficient to fulfil the personal duty.
‘Assistance’ is to be understood as any action suitable for alleviating the victim’s situation and, in particular, for relieving their pain. The measures to be taken in a specific case depend on the particular circumstances of that case. In principle, providing assistance initially involves the necessary first-aid measures and, subsequently, arranging for medical support.
The offence imposes a duty of conviction on the person responsible, provided that they at least seriously consider it possible that they have caused an injury to the victim. However, there is no explicit duty to actively check whether the victim actually requires assistance.
It must also be actually possible for the person responsible to provide assistance. If the person responsible is prevented from providing assistance, for example because they are being held by another person or because they themselves have suffered a serious injury, they are unable to provide assistance.
Subjective elements
Sec 94 StGB is an offence of intent. The perpetrator must fulfil the objective elements of the offence with at least conditional intent. They must therefore seriously consider it possible and accept that they have caused injury to another person and fail to provide the necessary assistance. An example is an accident at work: An employee negligently causes bodily harm to a colleague and leaves it to third parties to assess the situation, without ensuring that help actually arrives. → The duty to provide assistance remains a personal responsibility until qualified help takes over.
Grounds for excuse: Reasonableness
At the level of culpability, there is a ground for exculpation under Sec 94 para 3 StGB. The perpetrator is therefore excused if providing assistance is not reasonable to expect of them. Assistance is deemed unreasonable, in particular, where there is a serious risk to the perpetrator’s own safety. This is the case if one would have to expose oneself to the risk of death or serious bodily injury or damage to health, or if providing assistance would only be possible at the expense of other overriding interests. In such cases, a balancing of interests must be carried out on a case-by-case basis. Fear of being reported to the police, career disadvantages or financial loss does not constitute unreasonableness and therefore does not constitute an excuse.
Waiver of assistance by the victim
Under certain circumstances, the victim may also waive the right to assistance. The decisive factor here is that the waiver meets the criteria for a legally valid waiver. A valid waiver requires that the victim possesses the necessary capacity for understanding and judgement. This is absent, for example, in cases of significant intoxication or in a state of shock following an accident.
Penalty and classification
Failing to assist an injured person is punishable by imprisonment for up to one year or a fine of up to 720 daily rates (Sec 94 para 1 StGB).
If the abandonment results in grievous bodily harm to the injured person under Sec 84 para 1 StGB, the offender is liable to imprisonment for up to two years; if it results in death, the offender is liable to imprisonment for up to three years.
Support from an experienced criminal defence lawyer
If you are facing allegations of abandoning an injured person, you should consult a lawyer specialising in criminal law without delay. By inspecting the case files and conducting a comprehensive analysis of the facts, they will gain a clear understanding of your case. On this basis, the criminal defence will develop an appropriate defence strategy and ensure that your rights as the accused are upheld.
Furthermore, a criminal defence lawyer will advise and support you on all matters relating to the criminal proceedings, the underlying offence and possible grounds for exoneration. Based on their review of the case files, they will examine in particular whether providing assistance was actually necessary, possible and reasonable. They will also ensure that the case is carefully documented and that the procedural rights of the person concerned are fully protected.
