Abuse of wards

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The abuse of wards is a bodily harm offense that is regulated in Section 225 of the German Criminal Code . According to the established prevailing view, this is not a matter of qualification , but an independent fact (BGHSt 41, 11).


Legal formulation

The facts of the offense is:

(1) Anyone under the age of eighteen or a person defenseless because of frailty or illness who

  1. is under his care or custody,
  2. belongs to his household,
  3. has been left to his power by the person responsible for care or
  4. is subordinate to him in the context of an employment or employment relationship,

tortures or grossly mistreated, or anyone who damages their health through malicious neglect of their duty to care for them, is punished with imprisonment from six months to ten years.

(2) The attempt is punishable.

(3) A custodial sentence of not less than one year is to be recognized if the offender puts the person under protection in danger through the act

  1. death or serious damage to health, or
  2. significant damage to physical or mental development


(4) In less serious cases under paragraph 1, imprisonment of between three months and five years is to be recognized, in less serious cases under paragraph 3, imprisonment of between six months and five years.

Constituent elements


The offense of mistreatment of persons to be protected according to § 225 StGB exists in:

  • Tormenting: inflicting long-lasting or repetitive pain or suffering of a physical or mental nature (BGHSt 41, 113)
  • Abuse: Raw (i.e. particularly callous and considerable) abuse (BGHSt 25, 277)
  • Neglect: Harm to health from malicious, d. H. for particularly reprehensible, selfish reasons (such as hatred, malice, greed, ruthless egoism) (BGHSt 3, 20)


Only groups of people who are particularly worthy of protection are included in the protection of Section 225 of the Criminal Code. On the one hand, this includes all minors under the age of 18 and, on the other hand, people who are defenseless due to frailty or illness. Defenselessness can only be temporary (T / F, § 225, 4).


The perpetrator must have a duty of care for the named person. This duty of care is not justified by the usual care and custody of the offender. Parents, foster parents, carers, nursing staff and civil servants in prison are therefore included in the term “perpetrator”. But the household community also establishes the duty of care. The house community also includes life companions and partners. The duty of care relationship can also be of a factual nature if the injured party was left to the perpetrator by the person responsible for care. The consent of the person responsible for care is necessary. Ultimately, employment and training relationships are named. In addition, reference must therefore be made to Section 58 of the Youth Labor Protection Act of this criminal offense . However, the violation must occur within the framework of the relationship between the (young) employee and the employer.


It is generally assumed that the realization of the facts can also be committed by failure.

According to jurisprudence, torture is the cause of prolonged or repetitive pain or suffering. It depends on the causal link between perpetrator behavior and pain or suffering. However, this also includes mental abuse. The malevolent disposition is not necessary beyond the intent. The problem here is assessing the length of the torture. In the opinion of the Federal Court of Justice, a short-term imprisonment with fear of death in the victim is sufficient. Raw abuse occurs when the abuse results from a callous and indifferent attitude towards the suffering of the victim. It is difficult to distinguish the characteristic "raw" between objective and subjective facts. It is commonly assumed that the perpetrator is subject to an insignificant error of subsumption if the attribute "raw" is incorrectly assessed. This callous attitude does not have to be permanent. A momentary, callous disposition is also rejected.

Damage to health through malicious neglect of duty of care exists if the perpetrator rebels against the duty of care for reasons such as hatred, sadism, avarice or self-interest. But leaving neglect is also included in the offense. With regard to this characteristic ("malicious"), the otherwise sufficient conditional intent is not sufficient.


Like the other crimes of bodily harm, consent is permitted up to the limit of immorality. The prevailing opinion, however, allows consent only in exceptional cases, since the elements of Section 225 StGB already imply immorality. A justification through the parental right to punishment or the right to punishment by teachers or the like is no longer possible according to § 1631 Paragraph 2 BGB and the general requirement of non-violent upbringing.


Since the 6th Criminal Law Reform Act since April 1998, the attempt has been punishable as with all other willful crimes of bodily harm (with the exception of Section 231 StGB). If there is a factual error in § 225 StGB in the offender by imagining circumstances that would bring about § 225, § 223 StGB would be completed and § 225 StGB only attempted.


The qualifications of Section 225 StGB are the risk of serious damage to health, the risk of development or the risk of death. The latter is only present in the case of a specific risk to life, when the perpetrator can no longer control the averting. This can also be given by the victim's attempt to commit suicide. According to some views, the risk of serious damage to health conflicts with the constitutional requirement of certainty in Article 103 (2) of the Basic Law . The serious damage to health is usually derived from the facts of § 226 StGB. However, the term in Section 225 of the Criminal Code should be understood further and is based on a layperson's understanding of the serious damage to health. Again, however, the danger must be concrete. Ultimately, the development risk is in the sense of the risk of damage to the physical and mental development with the provision of § 171 StGB (violation of the duty of care or education). The risk of damage must also be specific.


While crime statistics speak only of small number of cases, but is phenomenologically by a large dark-field go out because the offenses in the range of hermetic circles ( family , home , hospital play) that are subject to difficult access of the state.

See also

Web links