Negligent killing (Sec 80 StGB)
Any person who negligently causes the death of another person commits the offense of negligent killing under Sec 80 StGB. As can be seen from the name of the offense, the perpetrator of negligent killing does not intend to kill, abuse or injure another person. Rather, the perpetrator causes the death of the victim through negligence.
A person acts negligently if the person falls of the standard of care the person is required to exercise in the circumstances, despite having the mental and physical capacity to do so and which can be reasonably expected from the person, and thus fails to realize that the person could bring about a situation that constitutes an offense (Sec 6 para 1 StGB, unconscious negligence). In addition, any person who considers the possibility of bringing about such a situation even though the person does not mean to bring about the situation acts negligently (Sec 6 para 2 StGB, conscious negligence).
Put simply, a person acts negligently if he or she objectively acts in a way that is contrary to their duty of care and subjectively reproachable.
Anyone who violates relevant behavioral requirements such as legal provisions or traffic norms acts in an objectively careless manner. Subsidiary, objectively careless behavior can also result from the behavior of a standard figure, i.e. a prudent and insightful person from the offender’s circle of acquaintances. Regarding the subjective lack of due diligence, it is required in summary that the perpetrator could have fulfilled the objective duty of care according to his personal circumstances – i.e. subjectively.
Anyone who causes the death of another person through gross negligence must be punished more severely in accordance with Sec 81 StGB. Gross negligence is committed by any person who acts in an unusual and conspicuously careless manner, so that the occurrence of a situation corresponding to the statutory offense was almost foreseeable.
Central risk areas of negligent killing
- Road traffic: A not insignificant proportion of cases of negligent killing are caused by traffic accidents. If road users cause the death of another person through excessive speed, distraction or other disregard of traffic regulations, they are held criminally liable for (grossly) negligent killing.
- Medical malpractice: The offense of Sec 80 StGB is often also fulfilled if doctors or medical staff cause the death of a patient due to negligence (e.g. incorrect diagnosis, improper treatment or other negligence). The offenses of negligent killing and grossly negligent manslaughter therefore also apply in medical criminal law. In the medical field, the Medical Judgement Rule, which is intended to ensure compliance with medical standards and best practices, is used to examine objective negligence.
- Accidents at work: In sectors where there is an increased risk of fatal accidents, for example in construction, industry or agriculture, the offense of negligent killing can be committed if a lack of safety precautions or a lack of protective measures (for example under the Employee Protection Act) lead to the fatal incidents.
- Product-related risks: Product-related requirements and failure to comply with them can also give rise to liability for negligent killing. These include, for example, specific requirements relating to product monitoring, warning and recall obligations as well as requirements under medical device or pharmaceutical law.
Example
- A building contractor decides to use inferior and unsuitable building materials in the construction of an apartment building to keep his costs down. As a result of this decision, the building code requirements for such a structure are not met. A few months after completion, the building collapses due to the inferior materials, resulting in the death of one of the residents. In any case, the building contractor acted negligently by opting for a construction that disregarded the due diligence requirements of the relevant legal standards. Accordingly, the building contractor can be punished for negligent killing or grossly negligent killing.
Penalties
The basic penalty for the offense of negligent killing (Sec 80 para 1 StGB) is a prison sentence of up to one year or a fine of up to 720 daily rates. For a negligent act that results in the death of several people, the Criminal Code provides for a more severe penalty. This includes a prison sentence of up to two years (Sec 80 para 2 StGB).
Grossly negligent killing is punishable by imprisonment of up to three years (Sec 81 para 1 StGB). Anyone who causes the death of multiple people through gross negligence is liable to a prison sentence of between six months and five years.
Negligent assault (Sec 88 StGB)
Any person who negligently causes physical injury or injury to the health of another person is liable to prosecution for negligent assault under Sec 88 para 1 StGB. Like Sec 80 StGB, the offense of negligent assault is a pure negligence offense. Accordingly, the perpetrator acts neither with intent to injure nor with intent to abuse.
Bodily injury or damage to health includes, for example, wounds, swelling, dislocations, sprains, fractures, poisoning, infections, shock and other injuries. Any act that is objectively careless regarding physical integrity is a suitable act of negligent bodily injury.
Grounds for exemption from punishment
Under certain conditions, the perpetrator is not to be punished for negligent assault:
- If the perpetrator does not act with gross negligence and if
- the victim is related to the perpetrator by blood or marriage or is his or her spouse, registered partner, brother or sister or is to be treated as a relative of the perpetrator,
- the offense did not cause any injury to health or any incapacity to work for a period of more than 14 days, or
- the person is a member of health profession regulated by law, the assault occurred in exercise of the person’s profession
the perpetrator is not to be punished for negligent assault.
Furthermore, assault and imperilment are not unlawful and therefore do not fall under the offense of negligent assault if the victim or endangered person consents to it beforehand and the injury or endangerment is not contrary to common decency (Sec 90 para 1 StGB). This provision applies above all to medical treatment by healthcare professionals such as doctors etc., but also, for example, to a tattoo artist or piercer, if consent is given to the “injury” to the body.
Example
- An employer disregards the principles of risk prevention under employee protection law, resulting in an employee being injured. The injury is due to a failure of the employer’s control system, as the necessary safety instructions were omitted. The employer is liable to prosecution for negligent bodily injury if his objectively negligent conduct is subjectively reproachable.
Penalties
Anyone who negligently causes physical injury or injury to the health of another person is liable to a custodial sentence of up to three months or a monetary penalty of up to 180 daily rates (Sec 88 para 1 StGB).
An additional offense qualification is standardized in Sec 88 para 3 StGB. Accordingly, anyone who causes physical injury or injury to the health of another person through gross negligence or after having, even if only negligently, put themselves into a state of intoxication that does not impair their sanity by consuming alcohol or using another intoxicating substance before committing the offense is liable to a custodial sentence of up to six months or a monetary penalty of up to 360 daily rates.
However, if the offense results in serious assault, the perpetrator may be punished with a prison sentence of up to six months or a fine of up to 360 daily rates. If serious bodily injury is committed through gross negligence, the offender is liable to a custodial sentence of up to two years, but if it results in serious bodily injury to multiple people, the offender is liable to a custodial sentence of up to three years.
Compliance as a preventive measure
The breach of corporate duties, which may arise in particular from administrative law as well as civil and corporate law, may also give rise to criminal liability of the company under corporate criminal law for negligence offenses.
Compliance measures are therefore of crucial importance for the prevention of offenses such as negligent assault and negligent killing. The aim of appropriate compliance precautions is to identify and ultimately minimize risks at an early stage. It is up to companies to establish transparent guidelines and codes of conduct to promote awareness of potential risks.
Companies should also carry out regular risk analyses to identify potential sources of danger. In this regard, it is advisable to review workflows, production processes and the use of materials regarding their safety standards and make any necessary adjustments.
It is also advisable for companies to offer their employees the opportunity to further their education in this area through regular training courses and workshops.
Assistance from a lawyer in cases of negligent killing or negligent bodily injury
If there is an allegation of a criminal offense against life and limb, it is advisable to contact a criminal defense lawyer quickly, at the latest when criminal investigation proceedings are initiated, who will represent the interests of the accused comprehensively and work towards a positive outcome for his client.
To examine the allegation of negligence, a detailed examination of the actions, omissions and the resulting consequences is required. A criminal defense lawyer can challenge the chain of evidence in more complex cases, such as in medical criminal law, by showing that the causality between the defendant’s conduct and the bodily injury or death that occurred is not clear or that other factors influenced the incident. A lawyer specializing in criminal law can interpret the available information in a targeted manner and present the evidence in a convincing way in order to achieve the best possible procedural outcome.
Also, if you have been the victim of negligent bodily injury or a person close to you has been killed through negligence, it is advisable to seek legal advice in order to take the necessary legal steps against the perpetrator. In addition to filing a complaint with the criminal prosecution authorities, this also includes representation in criminal proceedings in the context of private participation and the initiation of civil proceedings to assert claims for damages.
