Overview and protected legal interest
Under Sec 95 of the Austrian Criminal Code (StGB), anyone who, in the event of an accident or a public danger, fails to provide the assistance that is clearly necessary and reasonable to rescue a person from the danger of death or serious bodily injury or harm to health is liable to punishment.
Section 95 StGB serves to protect life and physical integrity. Unlike the offence of abandoning an injured person (Sec 94 StGB), the provision does not relate to bodily injury caused by the perpetrator themselves, but generally obliges every person to provide assistance in emergencies. This general duty of solidarity is enshrined in criminal law, whereby mere inaction constitutes an offence and may give rise to criminal liability.
Elements of the offence
Objective elements
An accident occurs when a sudden event causes significant harm or gives rise to an immediate fear of such harm. This includes serious accidents, acute medical conditions or other life-threatening situations. However, no obligation can be derived from Sec 95 StGB to take life-prolonging medical measures in the case of a terminally ill person who has decided to die. Such a situation does not qualify as an ‘accident’ within the meaning of the provision and therefore falls outside its scope.
A public danger (Sec 176 StGB) exists where there is a danger to a large number of people or to significant property on a large scale. This typically includes events such as natural disasters, fires or explosions. With regard to the number of people affected, a guideline figure of around ten people is used. There must be a concrete danger of death or of serious bodily injury or damage to health. Such a concrete danger exists if, given the circumstances of the individual case, the impending event is to be classified as probable and, in terms of time, as imminent.
For the general duty to assist to be triggered, an injury must be of a significant nature. Mere minor injuries – such as slight cuts or grazes – are not sufficient to establish a duty under Sec 95 StGB.
The assistance must also be obviously necessary. ‘Obviously’ means that the necessity of providing assistance is clearly apparent. All measures suitable for improving the situation of the person concerned or reducing the danger existing at the time are required. As the offence under Sec 95 StGB also focuses on the elimination of danger, the scope of possible acts of assistance is broader than under Sec 94 StGB. For example, switching off sources of danger or issuing warning signals may also be regarded as necessary assistance within the meaning of the provision.
The duty to provide assistance applies to everyone and, in principle, only ceases with the actual intervention of competent third parties (e.g. doctors, paramedics or nursing staff). Merely making an emergency call is therefore generally not sufficient, provided the helper is still personally capable of contributing to improving the situation. Naturally, a higher standard of assistance is expected from medically trained persons – particularly doctors – than from laypeople.
A further objective element of the offence is that it must have been actually possible to provide assistance. Such a possibility is to be assumed where there is spatial and temporal proximity to the accident or public danger. Conversely, anyone who is actually prevented from providing assistance is generally not liable to prosecution.
Subjective elements of the offence
Section 95 StGB is an intentional offence. The perpetrator must act with at least conditional intent in relation to all objective elements of the offence. In other words, they must seriously consider it possible and accept that an accident or a situation of public danger has occurred, that there exists a concrete risk of at least significant bodily injury or damage to health, and that providing assistance is clearly necessary, possible, and reasonable under the circumstances.
Ground for exoneration: reasonableness
Furthermore, culpability presupposes that providing assistance is reasonable. In particular, providing assistance cannot be reasonably expected if it would only be possible at the risk of life or limb or in breach of other significant interests.
Nevertheless, the assessment of reasonableness must not be based exclusively on the individual interests of the person under a duty to assist. Rather, all circumstances must be taken into account that would be relevant to a conscientious person, committed to legally protected values, in the perpetrator’s position. These include, for example, the nature and extent of the damage to life or limb that would result from failure to act, and the impact on the chances of rescue. If providing assistance personally is not reasonable, the perpetrator remains at least obliged to seek expert help, for example by contacting the emergency services.
From a medical law perspective, it should be noted that persons who are already obliged to provide assistance under professional regulations (e.g. doctors, paramedics, firefighters, law enforcement officers) cannot, in principle, invoke unreasonableness. Higher standards of reasonableness apply to them, as a higher level of assistance may be expected of them than of the average person.
What is the difference between failure to rescue and abandoning an injured person
Whilst the offence of abandoning an injured person (Sec 94 StGB) presupposes an injury caused by the perpetrator themselves and is therefore to be classified as a specific offence, the offence of failure to rescue (Section 95 of the Austrian Criminal Code) establishes a general duty that applies to everyone.
This is to be distinguished from situations where a so-called duty of care exists (Sec 2 of the Austrian Criminal Code), such as in the case of treating doctors. The person with a duty of care is responsible for preventing the occurrence of an offence under the law. In such cases, a failure to act may even be punishable as (negligent) killing and negligent assault by omission.
What is the penalty for a breach?
Failure to render assistance is punishable by imprisonment for up to six months or a fine of up to 360 daily rates.
However, if the failure to provide assistance results in the death of a person, the penalty increases to a prison sentence of up to one year or a fine of up to 720 daily rates.
Support from a criminal defence lawyer in cases of allegations of failure to render assistance
A lawyer specializing in criminal law can be of great assistance in criminal proceedings for failure to render assistance under Sec 95 StGB. Right from the start of the preliminary investigation, they gain a complete overview of the evidence and the allegations made by the police or the public prosecutor’s office by inspecting the case files. On this basis, they develop a tailor-made procedural strategy that takes the client’s specific situation into account and is geared towards the best possible outcome of the proceedings.
It is particularly important to consistently safeguard the rights of the accused. The criminal defence lawyer attends interrogations, ensures that no detrimental statements are made inadvertently, and ensures compliance with all procedural requirements. Furthermore, they thoroughly examine whether there has been an incorrect legal classification by the investigating authorities and handle all communication with the prosecuting authorities. An experienced criminal defence lawyer ensures that key issues, such as the necessity of assistance, its actual feasibility, and its reasonableness in the specific case, are addressed on a sound legal basis. In this way, not only is the risk of a conviction reduced, but the path is also opened up for a possible discontinuation of proceedings or a diversionary solution.
