Bodily harm (Germany)
Bodily harm is the encroachment on the physical integrity of a person in the form of physical abuse or damage to health . According to the prevailing opinion of leading criminal law teachers and the case law of the highest courts, any medical treatment for curative purposes in which the patient's body is penetrated in any way is a bodily harm, which is only not unlawful if consent is given (even by implication ) or there is a justifiable state of emergency . One for authorities and organizations with security tasks(BOS) common abbreviation is KV .
In German criminal law , bodily harm is regulated in to ( offenses against physical integrity ) and ( offenses in office ) of the Criminal Code. In the course of the major criminal law reform, the content and numbering were changed by the Sixth Law for the Reform of Criminal Law (6th StrRG).
The basic offense of bodily harm is standardized in StGB:
On the objective side, all crimes that limit the physical integrity of a person (physical harm to animals is not possible) require physical abuse or damage to health . A physical abuse is any bad, inappropriate treatment that affects the physical well-being or physical integrity not only irrelevant. In the context of physical well-being , the state before the act is compared with that after the act. If the condition is worse than before, then physical well-being can be impaired. The actual infliction of pain is irrelevant. Mental impairment can only be considered physical abuse if it has a significant impact on physical wellbeing. The physical integrity is impaired if there has been an injury to a substance, a loss of substance, a reduction in physical functions or a physical disfigurement. Damage to health is the creation or intensification of a pathological condition, i.e. a condition that deviates from the normal functioning of the body, even if it is only temporary. The victim's pain is usually not a pathological condition but, on the contrary, a sign of normal functioning of the body. The situation is different with chronic pain. Even cutting off the hair meets the offense of assault in the variant of physical abuse.
- physical well-being is z. B. also with fear sweat, sleep or concentration disorders or palpitations, also limited with bullying and (command or order-related) physical overexertion;
- causing horror, disgust or excitement, generally actions that are below a certain trivial threshold (e.g. spitting at, bumping into someone else by chance, a light blow with a rotten wooden board or even a light kick) do not lead to a physical limitation Well-being i. S. d. Section 223 of the Criminal Code, however, can constitute an offense ( e.g. a slap in the face ).
- physical integrity is z. B. in making a wound, administering a harmful substance, knocking out teeth, removing a body part, inflicting a bruise, defloration , cutting off hair;
- a health damage can z. B. from contamination of water or air by toxins or by bringing a harmful substance. Infection with a contagious disease (especially HIV ) is also a health hazard; There is also damage to health when taking X-rays, inducing alcohol intoxication or prescribing addiction-promoting agents.
The medical treatment
According to the Federal Court of Justice, medical treatment can constitute an offense of bodily harm. An intervention that was carried out according to the rules of medical art and that is successful also fulfills the objective criteria of Section 223 of the Criminal Code. It is therefore not enough for the medical professional to act with good intentions . Rather, the medical treatment is usually justified by consent . Therefore, the doctor must dutifully inform the patient before each procedure in order to prevent significant weaknesses of will on the part of the consenting party. In order to avoid the risk of criminal liability, the patient's information and consent is documented in a declaration of consent prior to the operation . However, there are also cases in which the patient's consent cannot be obtained prior to the operation (e.g. emergency operations on unconscious accident victims). As a rule, presumed consent is assumed here. A distinction must be made between this and the hypothetical consent . For the legally standardized peculiarity of bodily harm with the consent of Section 228 StGB, see below.
This view of the jurisprudence is criticized by parts of the literature and asserted that medical interventions that are medically indicated and skillfully carried out do not meet the requirements of Section 223 of the Criminal Code, although the exact requirements are disputed. The main argument of this literary opinion is that a curative intervention, according to its meaning, cannot be “abuse” or “damage to health” and the doctor is otherwise put on the level of a knife. On the other hand, the objection is that there is a risk of partial incapacitation of the patient if medical interventions are not even recorded as facts. Medical clarification discussions would become dispensable from a criminal law point of view and it could possibly also be treated with impunity against the will of the patient. Therefore, the “consent solution” of the jurisprudence protects the patient's right to self-determination more effectively.
The perpetrator must have acted willfully (in contrast to negligent bodily harm ). Intent denotes the knowledge and willingness to realize the facts; physical abuse or damage to health. In the context of bodily harm, intent is also specifically referred to as intent to cause bodily harm. It is conditional intent sufficient. A special feature here is the distinction between intentional bodily harm and intentional killing in the context of bodily harm resulting in death.
Dangerous bodily harm
Dangerous bodily harm regulated in qualification for bodily harm. In the case of certain types of bodily harm, which are defined by more precise characteristics, the threat of punishment is considerably increased because these types of commission are classified as highly dangerous. Dangerous bodily harm is an official offense .Criminal Code is a
The bodily harm offense of serious bodily harm ( Criminal Code) is a qualification in German criminal law , i.e. an offense that has been expanded to include aggravating elements of the offense, the basic offense of bodily harm ( Criminal Code). It is regulated in the 17th section of the special part of the German Criminal Code ( offenses against physical integrity ). The act is an official offense , which means that it is prosecuted ex officio and no criminal complaint ( StGB) has to be filed, as is the case with simple and negligent bodily harm.
In contrast to dangerous bodily harm ( Criminal Code), which is based on a particularly dangerous manner of committing the offense, the offense of serious bodily harm increases the threat of punishment considerably in the case of certain consequences, which are finally defined by more precise characteristics, because the consequences of the offense are particularly serious get ranked. The serious consequence, like the # bodily harm resulting in death ( StGB), is not linked to the act of bodily harm, but to the result of bodily harm.
Bodily harm resulting in death
Alsoof the Criminal Code is a performance-qualified offense:
As with all success skills to achieve precisely the danger (except § 239 para. 4 of the Criminal Code) should be on death success, the fact grunddeliktischen action "in a specific manner" clung. The direct link , as required in the Rötzel case , was abandoned by the Federal Court of Justice .
Differentiation from other facts
Fatal bodily harm occurs when the perpetrator intended to injure himself but did not want to kill the victim. If there was an intent to kill, it is manslaughter or murder , since manslaughter and murder are more specific offenses . If there was no intent to kill or injure, it may be negligent homicide (since only deliberate acts are punishable without an express mention in the law, Criminal Code).
The decision of the intent with which a perpetrator acted must be made by the court after weighing the circumstances.
A negligence -induced injury is punishable; According to Criminal Code, a fine or imprisonment of up to three years can be imposed. The negligent bodily harm is, except in the case of special public interest , an application offense ( StGB).
Assault in office
Negligent bodily harm is also possible here. A criminal complaint according to StGB is not required here, so negligent bodily harm in the office is an official offense . (This was allegedly not intended, but it is binding and is also practiced.) Paragraph 3 came into force in April 1998. Reports of bodily harm in office play a role in the legal processing of unlawful police violence .
In 2019, 71 people were tried for assault in office, 12 of them women; Nineteen people, including one woman, were convicted and all sentences were suspended.
Under the code 655100, bodily harm is listed in the Office Section 340 StGB in the PKS : 1,708 cases in 2020, 1,192 of which were resolved: 1808 suspects, of which 1546 men and 262 women, including 13 foreigners. Firearms were threatened in 4 cases and fired in 6 cases.
Assault in sports
According to the general legal opinion, participation in a sporting competition includes consent to the dangers for the own body typical of the competition ( volenti non fit iniuria ). Gross rule violations are excluded. In cases of criminal and unlawful bodily harm, the nature of the competition and the extreme physical and psychological situations that characterize it must be taken into account.
The usual justifications of self-defense , the state of emergency and consent apply . In the case of the possibility of consent otherwise tacitly assumed by the legislator, there is an express regulation in the area of bodily harm with StGB. The victim's consent is irrelevant if the act offends against morality. As a result, the possibility of consent is limited.
It is controversial how the concept of good morals is to be interpreted. It is advocated here, at least to the detriment of the perpetrator, not to undertake any moralizing consideration, but to orientate oneself solely on the degree of danger or violation of the legal interests of life and limb. The Federal Court has ruled in a judgment of 26 May 2004 (reference 2 con 505/03) that the criminality latest starts when viewed objectively, there is a real danger of death. However, the BGH should not be strictly assigned to this legal interest-related approach.
The opposite view affirms a violation of good morals if the act contradicts the decency of all those who think fairly and justly.
In any case, consent to medical treatment does not contradict good morals (unless the fact is already denied, as is sometimes the case in teaching). In the case of special sexual practices such as BDSM, there are differences of opinion about the interpretation of the term “good morals”; in any case, a concrete danger to life cannot be justified. Consent for sporting competitions does not violate morality, which was, however, controversial in boxing in the past. Consent, as described in the book and film Fight Club , is likely to be a violation of common decency.
- The negligent bodily injury ( of the Criminal Code) is as simple intentional injury a antragsdelikt ( of the Criminal Code). This means that the law enforcement authorities only intervene when a criminal complaint is filed, unless the public prosecutor's office affirms the special public interest . If the public prosecutor's office does not accept any public interest in the prosecution at all, the victim is referred to private legal action (Section 374 (1) No. 4 in conjunction with Section 376 of the Code of Criminal Procedure).
- Compensation and compensation for pain and suffering are only possible in the so-called adhesion process in criminal proceedings , otherwise the claim must be brought under civil law .
- The self-mutilation is the offense of assault not detected ( "... who one other person ..."), but it can punishable under other rules or in connection with which:
- Criminal Law (“Self-mutilation”) - In addition to self-mutilation, the offense also includes the mutilation of others by mutual consent Defense
- mutilation of another by mutualconsent, self- mutilation is a sub-case of "evasion of conscription through mutilation" Criminal Code ("evasion of military service through mutilation") -here, in addition to the
- Insurance Abuse StGB -
- Peter-René Gülpen: The concept of good morals in § 228 StGB . Publishing house MDV-Duhme, Troisdorf 2009, ISBN 978-3-00-026038-4 .
- Christian Järkel: The unlawful bodily harm due to immorality. A contribution to the interpretation and reform of § 228 StGB . Publishing house Dr. Kovac, Hamburg 2010, ISBN 978-3-8300-5281-4 .
- Lukas Staffler: Past intentionality and attribution dogmatics. On the interpretation of bodily harm resulting in death in a legal comparison between Germany and Italy . Duncker & Humblot Publishing House, Berlin 2015, ISBN 978-3-428-14637-6 .
- Florian Knauer: The ineffectiveness of consent to bodily harm due to immorality in the more recent supreme court case law
- Philip von der Meden: On the unconstitutionality of the interpretation of the concept of immorality within the meaning of § 228 StGB
- Brian Valerius: The hypothetical consent to medical treatment
- Schmidt, Priebe: Criminal Law Special Part I , 8th edition 2009, Rn. 282
- Tröndle / Fischer: StGB Beck'scher Kurzkommentar , 54th edition 2007, § 223 Rn. 9
- Schmidt, Priebe: Criminal Law Special Part I , 8th edition 2009, Rn. 286
- Schmidt, Priebe: Criminal Law Special Part I , 8th edition 2009, Rn. 287
- so z. B. OLG Celle, In: NJW 2008, p. 2202 f.
- Tröndle / Fischer, Beck'scher Kurzkommentar StGB , § 223, Rn. 5
- Tröndle / Fischer, Beck'scher Kurzkommentar StGB , § 223, Rn. 6
- Heghmanns, criminal law for all semesters. Special part , Berlin et al. 2009, No. 381
- Schmidt / Priebe, Criminal Law Special Part I , 8th edition 2009, Rn. 287
- Rengier, Criminal Law BT II, § 13 No. 10
- Schmidt / Priebe, Criminal Law Special Part I , 8th edition 2009, Rn. 288
- BGHSt judgment 51,18,21 ff.
- BGHSt judgment 36, 1, 17
- Judgment of the AG Saalfeld, NStZ 2006, 100, 101
- Schmidt / Priebe, Criminal Law Special Part I , 8th edition 2009, Rn. 294
- so z. B. BGH judgment 11, 112
- Rengier, Criminal Law BT II, § 13 No. 15, 17
- Wessels / Beulke, Criminal Law General Part , 38th edition 2008, Rn. 376
- see Kindhäuser, Criminal Law BT I, § 8 No. 24 ff.
- Kindhäuser, Criminal Law BT I, § 8 marginal no. 28
- Rengier: Criminal Law Special Part II, 8th edition 2007, § 13, Rn. 17
- BGH judgment, NStZ 2004, 201 f.
- BGH : Serious bodily harm. Deliberately or knowingly causing the consequences of serious bodily harm as a qualification; Applicability of the provision in the case of direct killing. In: NJW . Munich 2001, p. 980 f. ( Link to the judgment on bundesgerichtshof.de ).
- Hans-Ullrich Paeffgen : In: Criminal Code. 2010, p. 1022.
- Wessels / Hettinger : criminal law. 2012, p. 80.
- Hardtung in: Munich commentary . 2012, p. 989.
- Paeffgen in: Criminal Code. 2010, p. 1002.
- BGH, judgment of October 9, 2002 , Az. 5 StR 42/02.
- Federal Statistical Office, Special Series 10, Series 3, 2019
- PKS 2020
- What is the relationship between sport and criminal law? , sportrecht.org, 2009
- Full text of the written justification for the judgment, "Judgment of the 2nd Criminal Senate of May 26, 2004 - 2 StR 505/03" http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&nr= 29672 & pos = 0 & num = 1