Serious assault (Germany)

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1914 Criminal Code

The criminal offense of serious bodily harm ( Section 226 of the Criminal Code ) is regulated in German criminal law in Section 17 of the special part of the Criminal Code ( offenses against physical integrity ). The act is prosecuted ex officio as an official offense regardless of whether a criminal complaint has been made ( Section 230 of the Criminal Code).

This is a successful qualification - that is, an offense that has been expanded to include aggravating features - of the basic offense of bodily harm ( Section 223 of the Criminal Code). In contrast to dangerous bodily harm ( Section 224 of the Criminal Code), which focuses 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 bodily harm resulting in death ( Section 227 of the Criminal Code), is not linked to the act of bodily harm, but to the result of bodily harm.

The incidence of cases has doubled since the 1980s to a peak in 2007. Since then, they have declined by 12%.

Legal position

Serious bodily harm has been recorded as a criminal offense in the German Criminal Code since 1871. The version that has been in force since 1998 is based, among other things, on §  224 RStGB and § 225 RStGB (see also explanations on legal-historical development ) .

The qualification for serious bodily harm is standardized in Section 226 of the Criminal Code:

(1) Does the bodily harm result in [sic!] The injured person

  1. Loss of sight in one or both eyes, hearing, speech or fertility
  2. loses an important part of the body or cannot use it permanently or
  3. is permanently disfigured in a considerable way or lapses into infirmity, paralysis or mental illness or disability,

so the penalty is imprisonment from one year to ten years.

(2) If the offender deliberately or knowingly causes one of the consequences referred to in paragraph 1, the penalty shall not be less than three years' imprisonment.

(3) In less serious cases under subsection 1, imprisonment of between six months and five years, and in less serious cases under subsection 2, imprisonment of between one and ten years.

The threat of bodily harm according to § 223 StGB with a prison sentence of up to five years or a fine is increased to a prison sentence of one to ten years and thus constitutes a crime according to § 12 para. 1 StGB .

Objective fact

Section 226 StGB is a qualification of Section 223 StGB. A criminal liability accordingly for aggravated assault is initially requires that the perpetrator of the offense of assault with intent , unlawfully and negligently fulfilled. The protected legal interest of § 223 StGB is the "physical integrity" of another person, whose protection is derived from the right to physical integrity protected by the constitution ( Article 2, Paragraph 2, Sentence 1, Basic Law ). Anyone who physically abuses another person or damages their health is liable to prosecution under Section 223 (1) of the Criminal Code. Physical abuse means any "nasty, inappropriate treatment by which physical well-being or physical integrity is more than negligibly impaired". Damage to health is to be understood as “every cause or increase in a pathological condition”.

Serious bodily harm does not qualify as negligent bodily harm ( Section 229 of the Criminal Code). The offender must have caused the serious consequence in an objectively attributable manner . There must therefore be an immediate connection between the injury and the serious consequence. This means that the success of the crime “must arise from the typical risk of the basic offense ”.

In addition, one of the particularly serious consequences of injury listed in Section 226 (1) No. 1–3 StGB must be permanently present in the event of serious bodily harm.

Loss of sight, hearing, speaking or reproductive ability (Section 226 (1) No. 1 StGB)

The loss of a certain body function is blindness

Serious bodily harm occurs when the injured person loses sight (including in one eye), hearing, speech or ability to reproduce.

A distinction must be made when it comes to eyesight , the ability to recognize objects visually. According to the prevailing doctrine, a reduction in vision to 2% is equivalent to a loss. According to case law , a reduction to 10% or less already fulfills this criterion. Such a loss in one eye is sufficient. Artificial aids such as visual aids are not taken into account here, as they cannot permanently compensate for the loss.

The ability of auditory perception is to be understood with the ear . In contrast to eyesight, it is not the loss of hearing in one ear, but the entire hearing in both ears that is a prerequisite for serious bodily harm. This characteristic is also fulfilled when hearing is lost in one ear but the other ear has already been deaf.

The ability to speak is affected when the ability to articulate speech is impaired. There is no need for complete voicelessness ; however, mere stuttering is not enough.

The ability to reproduce only affects the ability to reproduce, conceive and give birth; Impotence therefore does not fall under this characteristic. Contrary to what was previously defined as “fertility”, it is to be understood as gender-neutral. This also protects children whose “reproductive ability will only develop years later”, but not a 90-year-old person.

A loss is the almost complete elimination of the affected ability. It must last at least for a longer period of time and there must be uncertainty about the prospects for recovery. There is no loss if the lost ability can be restored through reasonable medical measures.

Loss or permanent uselessness of an important limb (Section 226 (1) No. 2 StGB)

Whether internal organs are to be understood as important links is a matter of dispute
The removal of a body part is without doubt the loss is

Serious bodily harm continues to exist if the injured person “loses an important limb of the body or is permanently unable to use it” (Section 226 (1) No. 2 StGB).

What is meant by an important link is controversial. Most of the literature and jurisprudence are of the opinion that the term can only be understood as “external body parts that have a self-contained existence with a special function in the whole organism” and are “connected to the body by a joint”. According to a minor opinion , not only external body parts, but also internal organs, such as the kidney, should be taken into account. The reason for this is that the loss of an internal organ would cause worse health consequences than the loss of a finger, for example. Even if the Federal Court of Justice (BGH) has not answered the question conclusively, it rejects this view, since the designation of an internal organ as a member exceeds the limit of permissible word interpretation.

A member is important when it is of considerable importance with regard to the whole organism. However, it is controversial whether the individual circumstances of the injured person have to be taken into account. In some cases, particular emphasis is placed on the occupation of the injured person, according to which the little finger of a pianist is an important link. The Reichsgericht assumed that the importance of a limb should not be determined with regard to the injured person, but abstractly according to "what importance the lost limb in general, [ie] for humans in general." According to another view, individual body properties are (such as handedness ) and permanent physical (pre-) damage to the injured person must also be taken into account. The BGH broke away from its previous case law and agreed with the latter view on the grounds that the criterion of importance interpreted abstractly by the Reichsgericht was too narrow and no longer up-to-date. The law regulates the loss of an important part of "the" body, which indicates a generalized standard. As a result, there are no indications that the occupation of the injured person should be taken into account. The index finger is an example of an important limb.

The important link is lost when it is physically severed from the body. With the introduction of the Sixth Law for the Reform of Criminal Law (6th StRG) in 1998, this regulation was supplemented by the alternative of permanent uselessness . Permanent uselessness can already exist if the link is practically unusable. The BGH presupposes that “by means of an overall evaluation, it must be determined whether […] so many functions have failed that the limb can largely no longer be used and therefore the essential factual effects correspond to those of a physical loss ". One possible cause of the uselessness is, for example, the permanent stiffening of a knee joint. A limb can no longer be used permanently if this condition is "present for a long time in a consistent manner" (see also: Explanations on permanent severe injuries ) .

Disfigurement and serious illnesses (Section 226 (1) No. 3 StGB)

Permanent considerable distortion

Permanent significant distortion can also justify the criminal liability of serious bodily harm if the "overall appearance of the injured person is changed in its aesthetic effect in such a way that [he] has to suffer long-term psychological disadvantages when dealing with his environment". With regard to the change, it must be taken into account that it is irrelevant whether the injured person was already unaesthetic before the disfigurement. The significance of the distortion must be determined in comparison with the other serious consequences of bodily harm listed in Section 226 (1) StGB. When scars were assessed, neither a scar that was “conspicuously perpendicular from the right nostril to the upper lip, about 1 mm wide” nor a 4 mm wide, 12 cm long scar that ran “from the earlobe to the Lower jaw runs ”, significant distortions seen. Examples which, on the other hand, fulfill the characteristic of permanent considerable disfigurement are, for example, the "loss of a nostril or a (half) ear, a drooping eyelid, a displacement of the lower jaw or walking difficulties due to the shortening of the thigh".

The external appearance is affected even if the disfigurement is not constantly visible. Therefore, all social situations, such as bathing in the swimming pool or sexual intercourse, must be taken into account.

The disfigurement is permanent if the appearance has been changed permanently or for an indefinitely long period of time (see also: Explanations on permanent serious injury ) .

Decay into serious illness
Infecting with the HI virus is an example of the decline in infirmity

Serious bodily harm can also be present if the injured person falls into a severe chronic disease state that affects the entire organism. The damage does not have to be incurable for this, but it must persist for a long time and the healing cannot be foreseen.

This includes, among other things, falling into infirmity , i.e. a chronic disease state that damages the entire organism and leads to its general frailty. This includes, for example, infection with the HI virus .

Since the inability to move in an important limb is already regulated in Section 226, Paragraph 1, No. 2 of the Criminal Code, paralysis is equated with infirmity if the movement restriction of one part of the body impairs the mobility of the entire body. Such paralyzes include the stiffening of a knee joint, an entire arm or the hip joint, which makes it necessary to use a crutch. On the other hand, stiffening the wrist or individual fingers is not enough.

The decline into a mental illness is based on the rules of mental disorders in the sense of § 20 StGB. Ultimately, lapse into disability is recorded; However , it is a matter of dispute whether this means physical or mental handicap . This alternative of a serious illness was not yet included in the government draft, but is mentioned for the first time in the report of the legal committee. One view understands the handicap to be “any significant impairment of bodily functions”. In contrast, some authors in the literature use the conjunction “or” to refer to the adjective “intellectual”, according to which only intellectual disabilities are covered by Section 226 (1) No. 3 of the Criminal Code. This view is supported by the fact that this link is used twice in the wording of the law (“paralysis or mental illness or disability”). In addition, a different interpretation would make this regulation superfluous, since cases of physical disability due to paralysis, infirmity or the loss of certain bodily functions are already covered by other constituent elements.

Permanent serious injury

Serious bodily harm qualifies for permanent, i.e. irreversible consequences of the injury. The increased punishment for serious bodily harm speaks in favor of only allowing consequences from which the injured person suffers permanently. From the characteristic of permanent disfigurement it can be deduced that it no longer exists if the disfigurement can be permanently removed (for example through cosmetic interventions). What matters here is not the consent of the injured party with regard to the intervention, but whether it is reasonable for him or her. The Bavarian Supreme Regional Court decided in a case in which a visual impairment could only be removed by "wearing a contact lens and (double-sided) prism glasses on the injured eye" that criminal liability for serious bodily harm does not apply in this context. Artificial or technical aids such as visual aids could only temporarily compensate for the severe consequences mentioned, but not permanently. In contrast to this, however, the loss of teeth does not result in permanent disfigurement "if it is likely to be eliminated by a dental prosthesis ".

Subjective fact

Section 226 (1) of the Criminal Code records willful bodily harm as a qualifying offense , the serious consequences of which, according to Section 18 of the Criminal Code, were at least negligently caused. Thus, “cases of carelessness and dolus eventualis ” are also recorded.

Intent with regard to the serious consequence (Section 226 (2) StGB)

Section 226 (2) of the Criminal Code presupposes that the perpetrator acts intentionally ( dolus directus 1st degree ) or knowingly ( dolus directus 2nd degree ) with regard to the serious consequences and thus constitutes a qualification under Section 226 (1) of the Criminal Code. The objective conditions therefore remain unchanged. A significant deviation from the causal process is insignificant if the perpetrator just wanted the serious consequence to occur in a different way. If the perpetrator intended to kill himself when he committed the act, there is basically no intent for a serious consequence according to Section 226 of the Criminal Code. The occurrence of a severe episode presupposes the survival of the victim. If the perpetrator has resigned from a deliberate attempt at homicide and anticipated “serious bodily harm as a sure consequence of his actions”, Section 226 (2) StGB is still applicable. However, if he acts with conditional intent (dolus eventualis) in this regard , Section 226 (2) StGB does not apply. When § 226 para. 2 of the Criminal Code is therefore an intentional offense that a penalty framework provides for a prison sentence of three to 15 years.

Less serious cases (Section 226 (3) StGB)

In less severe cases under Section 226 (1) of the Criminal Code, a prison sentence of six months to five years (Section 226 (3) alternative 2 StGB) is imposed, in those under Section 226 (2) of the Criminal Code a custodial sentence of one to recognized ten years ago (§ 226 Abs. 3 Alt. 2 StGB). The criminal nature of serious bodily harm remains unaffected by the mitigation of the sentence ( Section 12 (1) StGB). A less serious case can exist if "the injury takes place at the request of the victim or with their consent" or if the perpetrator fulfills the conditions specified in Section 213 of the Criminal Code (less serious case of manslaughter), i.e. if the perpetrator is "carried out by the [ injured] people were irritated to anger and thereby carried away to action on the spot ”. This is to be answered in the affirmative if a minor “excess in the context of an amicable physical dispute” has led to serious consequences. This includes in particular a provocation by the injured party, which then carried the perpetrator away to the act. However, mere negligence is not sufficient to mitigate punishment within the meaning of Section 226 (3) StGB. In the case of a reduced culpability , the court must decide “between the mitigations under Section 226 (3) [StGB] and” Section 21 StGB in conjunction with Section 49 StGB. If the offender carries out Section 226 (1) of the Criminal Code, the sentence is reduced to “imprisonment from six months to five years” within the meaning of Section 226 (3) of the Criminal Code; if Section 226, Paragraph 2 of the Criminal Code is implemented, to “imprisonment from one year to ten years”.

Justifications

Possible grounds for justification include in particular self-defense ( Section 32 StGB), justifying state of emergency ( Section 34 StGB) and consent ( Section 228 StGB), which is " of practical importance above all in medical interventions ".

Self-defense and justifying emergency

A justification from self-defense is given if "to ward off massive attacks [...] equally massive defensive actions are required". It does not matter whether the serious consequence was caused intentionally or negligently. So the justification does not depend on the cause of success, but on the action. Accordingly, the “negligent causing of the serious consequence” is also justified if the “commission of a simple bodily harm [...] the possibility of a serious result was foreseeable” and was “necessary to defend against an unlawful attack” . A justification due to a general (justifying) state of emergency exists under the same conditions.

consent

Furthermore, consent, for example in medical interventions, can represent a justification. In practice, this plays a significant role, especially when deliberately causing serious consequences within the meaning of Section 226 (2) of the Criminal Code, since such an intervention always results in serious bodily harm. The consent is ineffective if the intervention is requested by the patient but not medically indicated . For example, the BGH denied the effectiveness of consent in a case in which a patient had numerous teeth removed because she hoped it would reduce her chronic headache . The reason for the decision was that the patient lacked the "necessary judgment" and the doctor was not able to "bring the witness' image [...] in line with a realistic medical assessment". The patient was subject to an insignificant error of motivation , as she recognized the loss of her teeth, but hoped for further benefits from it. The act was immoral in the sense of § 228 StGB because of the "objective uselessness".

It is also conceivable that unexpected complications arise during an operation and that the act could be justified on the basis of presumed consent . However, if the doctor had the opportunity to consider this critical circumstance before the operation and to inform the patient about what "would have shown an opposing will [of the patient]", this is a negligent act according to § 229 StGB.

Excuses

As a qualification for success, the fact of serious bodily harm requires that not only the basic offense was culpably committed, but that the serious consequence was culpably caused in the same way. If the perpetrator intentionally causes the serious consequence, the general rules of guilt apply to intentional offenses. In the case of negligent induction, the special characteristics for determining the guilt must be taken into account accordingly, such as the subjective breach of duty of care or unreasonableness of the required action. In this respect, the BGH recognized an excess of emergency defense as a reason for excuse in an earlier judgment .

Perpetration and participation

Section 226 of the Criminal Code sets special requirements for participation ( perpetration and participation ). These result from the different threats of punishment for negligence and conditional intent (Section 226 (1) of the Criminal Code) as well as intent and knowledge (Section 226 (2) of the Criminal Code).

Complicity

A complicity to § 226 para. 1 of the Criminal Code requires the existence of a jointly committed bodily harm under § 223 of the Criminal Code, "by a serious consequence has been caused." According to the subjective facts of the case, the accomplice must at least be charged with negligence within the meaning of § 18 StGB. If, for example, one of two accomplices fulfills an intention with regard to the serious consequence and the other acts with conditional intent, they are to be punished individually according to the criteria that have been fulfilled. The reason for this is that, according to the wording of Section 226 (2) of the Criminal Code, only “the perpetrator” is threatened with punishment with regard to this qualification, who deliberately or knowingly causes the serious consequence. Thus, the deliberately acting accomplice from § 226 Abs. 2 StGB and those acting with conditional intent from § 226 Abs. 1 StGB are punished.

incitement

According to this, an instigator or someone who provides aiding and abetting is only punished if he “is at least guilty of negligence with regard to [the serious] consequence” (Section 18 of the Criminal Code). This regulation is not to be understood as “recognition of negligent incitement”, but represents “willful participation in the willful basic offense”, which is qualified by “negligent '(secondary) perpetrator'”. The criminal liability of the participant does not depend on the deliberate cause of the serious consequence by the main perpetrator. However, the instigator is to be punished as an indirect perpetrator within the meaning of Section 226 (1) of the Criminal Code if he was aware that the perpetrator intentionally fulfilling the basic offense caused the serious consequence negligently.

Aid

Aid to the implementation of Section 226 (2) StGB is provided by anyone who has direct intent ( 1st or 2nd degree dolus directus ) with regard to the serious consequence. This results from Section 18 of the Criminal Code, according to which Section 226, Paragraph 1 of the Criminal Code applies to those involved who act with conditional intent. Conversely, it follows from this that participation in Section 226 (2) of the Criminal Code is already given if the main perpetrator only has conditional intent, but the party involved acts with direct intent in relation to the serious consequence.

attempt

Since Section 226 of the Criminal Code is a crime under Section 12 (1) of the Criminal Code, the attempt is punishable. Even with intentional execution of the basic offense (Section 223 of the Criminal Code), it can be a matter of immediate implementation of the offense. Furthermore, there may be an attempted qualification of success if "the intent of the perpetrator extends to a serious consequence which [however] does not occur". Under Section 226 (1) of the Criminal Code, an attempt is already considered if the offender acts with conditional intent. An attempted criminal liability according to § 226 Abs. 2 StGB still requires intent or knowledge (see also: Explanations on the subjective facts ) . Thus, a conditional intent aimed at serious consequences corresponds to the attempt of Section 226 (1) StGB.

The offense of serious bodily harm constitutes a successful qualification . Accordingly, the attacker can make himself liable for a successful attempt . Such a successful attempt under Section 226 of the Criminal Code is possible because "the attempt to commit the basic offense as a result of negligence" can already result. This is the case when the perpetrator attempts the willful bodily harm, i.e. does not complete it, but thereby already causes the serious result. It does not have to be captured by the attacker's intent. This is the case, for example, when the attacked person evades an attack by the perpetrator, but falls unhappy and thus becomes paralyzed.

Law competitions

If an act causes several serious consequences, there is no ideal competition of the same kind . Thus, such cases are treated as only one factual realization ( Section 52 (1) StGB). Essentially, the regulation that aggravates the offense is taken into account. Furthermore, it seems preferable to make the intentional or knowingly causing the serious consequence (Section 226, Paragraph 2 of the Criminal Code) with a negligent or possibly deliberate bringing about (Section 226, Paragraph 1 of the Criminal Code) into a single offense . In this way, ideal competition can be assumed in the guilty verdict and the presence of both paragraphs can be clarified. If the one serious consequence is only an attempt and the other is negligently brought about, the attempt, regardless of which paragraph, and the negligent completion stand in the act of unity.

Section 226 of the Criminal Code replaces the basic offense Section 223 of the Criminal Code due to specialty as a qualification. An attempted serious bodily harm is, however, a unit of crime with a completed one according to § 223 StGB. Furthermore, Section 226 of the Criminal Code supersedes dangerous bodily harm according to Section 224 of the Criminal Code, as this has "individualized hazardous qualifications" as its content, whereas serious bodily harm is characterized by injury qualifications.

Although there is ideal competition with the termination of pregnancy according to Section 218, Paragraph 2 of the Criminal Code, the existence of severe damage to health (Section 218, Paragraph 2, No. 2 of the Criminal Code) suppresses this due to the serious consequences within the meaning of Section 226 of the Criminal Code.

Furthermore, contrary to previous case law, Section 225 (3) of the Criminal Code ( mistreatment of wards ) is not a legal act , but an act of unity. The reason for this is the interest in clarification, which can only be preserved in the context of a factual treatment of the “violation of special duty of care”. The serious consequence is derived accordingly from the facts of § 226 StGB.

Procedural matters

The act is over when the serious consequence has occurred. With this, the statute of limitations begins according to § 78a StGB . If the serious consequence is caused negligently or with conditional intent (Section 226, Paragraph 1 of the Criminal Code), the act becomes statute-barred within ten years under Section 78, Paragraph 3, No. 3 of the Criminal Code. Acts in accordance with Section 226 (2) of the Criminal Code, i.e. those in which the serious consequence was intentionally or knowingly caused, expire within 20 years (Section 78 (3) No. 2 of the Criminal Code in conjunction with Section 38 (2) of the Criminal Code). Any mitigation of punishment within the meaning of Section 226 (3) StGB is irrelevant. Convictions according to Section 226 (2) of the Criminal Code are “to be described in the sentence as 'knowingly' or 'deliberate serious bodily harm'” ( Section 260 (4 ) of the StPO ).

Legal historical development

Up until the Sixth Law on the Reform of Criminal Law (6th StRG) of November 13, 1998, serious bodily harm was regulated in Section 224 of the StGB. The deliberate bringing about the serious consequence was covered by Section 225 of the Reich Criminal Code (RStGB). The offense of serious bodily harm was already regulated in previous laws.

Section 226 (1) of the Criminal Code was derived from Sections 190 and 193 of the Prussian Criminal Code of 1851 (prStGB). According to this, bodily harm was classified "in terms of its consequences into [a] slight, significant and severe". The idea was to punish physical damage that severely affects the injured with particularly severe punishment. This regulation can also be found in § 224 RStGB from 1871. The basis of the current version of Section 226 (2) of the Criminal Code was Section 225 of the RStGB (intended serious bodily harm), which was first incorporated into law in 1871.

The 6th StRG summarizes the features of § 224 RStGB and § 225 RStGB in § 226 StGB. Furthermore, the terms “language” have been replaced by “speaking ability”, “fertility” by “reproductive ability” and “mental illness” by “mental handicap or illness” ”. In addition, the feature of intention was interpreted in such a way that in the current version both the intention and the knowledge are expressly mentioned in Section 226 (2) of the Criminal Code. Furthermore, the Crime Combat Act (VerbrBG) from 1994 abolished the "possibility of fines" provided for in Art. 19 No. 96 EGStGB .

Development of the penalty framework

Section 193 of the PrStGB saw for bodily harm, the consequences of which were “illness or incapacity for work” that lasted longer than 20 days or led to the injured person being mutilated, or “deprived him of speech, face, hearing or fertility, or put in a mental illness ”, penitentiary up to 15 years ago. Section 224 of the RStGB punished those who commit bodily harm resulting in the loss of an "important limb of the body, [the] sight [in one or both eyes, [the] hearing, [the ] Language or [the] fertility ”or causes the injured person to be“ severely permanently disfigured […] or lapse into infirmity, paralysis or mental illness ”, with“ up to five years in prison or imprisonment not less than one year ”. A deliberate cause of the consequences raised the sentence to "prison from two to ten years".

The 1975 version of the offense of serious bodily harm, which at that time was still part of Section 224 of the Criminal Code, threatened the cause of serious consequences with imprisonment from one year to five years. Less serious cases were punished with imprisonment of up to five years or a fine. A more recent version from 1994 changed the scope of the penalties to the extent that the fine was abolished and imprisonment from three months to five years was recognized.

In 1975, the offense of "intended serious bodily harm" was drafted, which was found in Section 225 of the Criminal Code (old version). According to this, imprisonment of two to ten years could be recognized if one of the consequences described in Section 224 of the Criminal Code (old version) was intended. For less serious cases (Section 225 (2) StGB [old version]) the penalty was imprisonment from six months to five years. In 1994 the offense was renamed "particularly serious bodily harm". According to Section 225, Paragraph 1 of the Criminal Code (old version), anyone who “caused a serious consequence at least recklessly” was punished with imprisonment from one year to ten years, in less serious cases from six months to five years. Section 225 (2) of the Criminal Code (old version) provided for a prison sentence of two to ten years for intentional or knowingly serious consequences, and from one year to five years in less serious cases.

After the "serious injustice / guilt forms of frivolous or conditionally deliberate cases" were shifted to § 225 StGB (old version) in 1994, "the retention of the penalty framework [of § 224 StGB (old version) meant that )] a considerably more stringent injustice predication for simply negligent “bringing about the success of the crime, ie a more severe punishment for the same injustice . Critical objections to this relocation argue that it is disproportionate to double the penalty for “frivolous” and “conditionally deliberate” causes of success to ten years' imprisonment, whereas the maximum penalty for deliberate causes of success was unchanged.

Reform project

In 2009, “a draft law that should record female genital mutilation as serious bodily harm” was rejected by the Bundestag . Thereupon the Federal Council decided in the following year to "introduce a draft law to the Bundestag, the central concern of which is the insertion of a section 226a [StGB] (genital mutilation)". On February 21, 2013, the Bundestag again discussed the draft law. A pertinent Criminal Law Amendment Act is required, but there is still a need for discussion. The draft laws were then referred to the Committees on Health, Human Rights and Humanitarian Aid , Economic Cooperation and Development , Family, Seniors, Women and Youth, as well as the Committee on Home Affairs and Legal Affairs . Section 226a, Paragraph 1 of the Criminal Code should read: “Anyone who mutilates the external genitals of a woman by circumcision or in any other way will not be punished with imprisonment for less than two years.” According to the prevailing opinion, such a regulation is “not necessary from a criminal law doctrinal point of view [...] “Because such a mutilation is already covered by the criminal offense of dangerous bodily harm by means of a weapon or another dangerous tool according to Section 224 (1) No. 2 StGB. In addition, such an offense, which only applies to female victims, is unconstitutional because of a violation of the principle of equality and the prohibition of discrimination in Article 3 of the Basic Law, since the light forms of female circumcision are comparable to the (permitted) male circumcision in terms of their injustice . Nevertheless, it is conceivable as a “middle solution” between Section 224 of the Criminal Code and Section 226 (2) of the Criminal Code. In July 2013 a corresponding law was passed by the Bundestag. The law came into force on September 28, 2013 as the 47th Criminal Law Amendment Act. An incorrect wording in the wording of the law required a correction, which was made on January 8, 2014.

Police crime statistics

Recorded cases of dangerous and serious bodily harm in the years 1987–2019 as a frequency number (per 100,000 inhabitants).

The police crime statistics (PKS) published annually by the Federal Criminal Police Office summarize all dangerous and serious bodily harm offenses that were recorded by the police in the previous year. The clearance rate for these crimes is consistently over 80%. It should be noted that the police charge does not have to be identical to the legal assessment. 1987–1990 only the old federal states were recorded in the statistics ; in 1991 and 1992 Berlin was also taken into account. Since 1993 the new federal states , i.e. the entire federal territory , have been included in the statistics. Since knife attacks have not yet been recorded separately in all federal states, there is still no nationwide data on their share in the reported dangerous and serious physical injuries. From January 1, 2020, the phenomenon of "knife attacks" will be recorded nationwide in the PKS.

Since the late 1980s, the incidence almost doubled by 2007. Since then, the numbers have been falling again. However, there was a significant deterioration from 2015 to 2016. From the peak of 2007 to 2019, the incidence decreased by 15% from 188 to 160 cases per 100,000 population. The course over time is similar to that of other areas of crime both in Germany and in many other countries around the world. However, dangerous and serious bodily harm did not peak in the early 1990s, as is often the case, but only in 2007.

In 2019, a gun was threatened in 626 cases and fired in 189 cases. Compared to 2,619 cases in 1996 - the peak of the firearms use - such cases have decreased by more than two thirds.

Police crime statistics for dangerous and serious bodily harm in the Federal Republic of Germany
recorded cases with gun
year all in all per 100,000 inhabitants tries shot threatened Clearance rate
1987 63,711 104.2 4,074 (6.4%) 265 1,535 84.1%
1988 62,889 102.4 4,298 (6.8%) 247 1,480 84.1%
1989 64,840 104.6 4,249 (6.6%) 228 1,327 83.5%
1990 67,095 107.0 4,174 (6.2%) 227 1,368 82.6%
1991 73.296 112.7 4,298 (5.9%) 294 1,398 80.6%
1992 77,160 117.3 4,800 (6.2%) 382 1,797 80.7%
1993 87,784 108.4 5,061 (5.8%) 439 2,378 80.1%
1994 88,037 108.2 5,340 (6.1%) 493 2,280 81.3%
1995 95,759 117.4 6,023 (6.3%) 536 2,478 81.7%
1996 101,333 123.9 6,594 (6.5%) 553 2,619 83.2%
1997 106.222 129.5 6,922 (6.5%) 522 2,508 82.5%
1998 110.277 134.4 7,690 (7.0%) 535 2,289 83.6%
1999 114,516 139.6 8,322 (7.3%) 592 2,300 83.9%
2000 116.912 142.3 8,866 (7.6%) 580 2.159 83.9%
2001 120,345 146.3 9,042 (7.5%) 473 1,715 83.8%
2002 126,932 154.0 9,596 (7.6%) 492 1,707 84.6%
2003 132,615 160.7 10,141 (7.6%) 441 1,844 84.1%
2004 139,748 169.3 10,790 (7.7%) 389 1,546 84.2%
2005 147.122 178.3 12,151 (8.3%) 418 1,492 83.5%
2006 150,874 183.0 12,953 (8.6%) 352 1,357 83.2%
2007 154,849 188.1 13,589 (8.8%) 350 1,337 82.5%
2008 151.208 183.9 15,347 (10.1%) 279 1,084 82.3%
2009 149.301 182.1 15,730 (10.5%) 214 1,098 82.2%
2010 142.903 174.7 15,799 (11.1%) 202 931 82.3%
2011 139.091 170.1 16,085 (11.6%) 153 947 82.3%
2012 136.077 166.3 16,524 (12.1%) 169 769 81.4%
2013 127,869 158.8 16,115 (12.6%) 156 766 82.1%
2014 125,752 155.7 17,106 (13.6%) 128 690 82.4%
2015 127.395 157.0 18,079 (14.2%) 120 642 82.3%
2016 140.033 170.4 20,290 (14.5%) 145 805 82.6%
2017 137.058 166.1 20,550 (15.0%) 147 700 82.8%
2018 136,727 165.1 20,315 (14.9%) 139 638 82.5%
2019 133.084 160.3 19,233 (14.5%) 189 626 82.9%

literature

Web links

  • § 226 StGB on dejure.org - legal text with references to case law and cross-references.
  • Exam structure for serious bodily harm on juraschema.de .

Individual evidence

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  2. ^ Wessels / Hettinger : Criminal Law. 2012, p. 80, ( online )
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  4. ↑ a b BGH , judgment of December 14, 2000, Az. 4 StR 327/00, LS.  1 f .; Serious assault. Deliberately or knowingly causing the consequences of serious bodily harm as a qualification; Applicability of the provision in the event of direct killing. ( Link to the judgment on bundesgerichtshof.de ).
  5. ↑ a b c d Joecks : Study Commentary StGB. 2012, p. 430 f.
  6. ^ Joecks: Study Commentary StGB. 2012, p. 412.
  7. ^ Pieroth / Schlink : Basic rights. 2012, p. 97.
  8. ^ Joecks: Study Commentary StGB. 2012, p. 417.
  9. ↑ a b c Hardtung in: Munich Commentary . 2012, p. 989.
  10. ↑ Altenhain : The connection between the basic offense and serious consequences in the offenses qualified for success. In: GA . Munich 1996, pp. 19-35.
  11. ^ BGH, judgment of September 30, 1970, Az. 3 StR 119/70, LS. 1.
  12. ^ Roxin : Criminal Law. 2006, p. 334.
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  14. ↑ a b c Fischer : Penal Code and subsidiary laws. 2012, p. 1511 f.
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  16. ^ LG Freiburg , judgment of December 14, 2005, Az. 7 Ns 210 Js 24420/04 - AK 84/05, LS. 1.
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  22. ↑ a b Hardtung in: Munich Commentary. 2012, pp. 994-996.
  23. ^ Murmann: Basic course in criminal law. 2011, p. 129.
  24. ↑ a b RGSt 3, p. 391 f.
  25. ^ BGH, judgment of August 15, 1978, Az. 1 StR 356/78; BGHSt 28, p. 100, OS.  2.
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  27. ↑ a b c d BGH, judgment of March 15, 2007, Az. 4 StR 522/06, LS. 1, marginal no. 15; BGHSt 51, pp. 252-257 ( link to the judgment on bundesgerichtshof.de ).
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  33. ↑ OLG Hamm , judgment of May 8, 2000, Az. 13 U 7/00, Rn. 18th
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  35. ↑ BGH, decision of July 11, 2006, Az. 3 StR 183/06, Rn. 3 ( Link to the decision on bundesgerichtshof.de ).
  36. ↑ a b Rengier: criminal law. 2012, p. 127.
  37. ↑ a b BGH, judgment of June 28, 2007, Az. 3 StR 185/07, Rn. 8 ( Link to the judgment on bundesgerichtshof.de ).
  38. ↑ Kindhäuser: Criminal Code. 2013, p. 812.
  39. ^ LG Saarbrücken , judgment of April 7, 1981, Az. 5-8 / 80 IV; On the concept of permanent distortion. In: NStZ. Munich 1982, p. 204.
  40. ^ Wessels / Hettinger: Criminal Law. 2012, p. 89.
  41. ^ Hirsch in: Leipziger Commentary. 2005, p. 114.
  42. ^ A b Wessels / Hettinger: Criminal Law. 2012, p. 90.
  43. ↑ Lily in: Leipziger Commentary. 2005, p. 22.
  44. ↑ BGH, decision of May 3, 1988, Az. 1 StR 167/88, Rn. 8th.
  45. ↑ a b Hardtung in: Munich Commentary. 2012, p. 1004.
  46. ↑ BR-Drs. 164/97, p. 15.
  47. ↑ BT-Drs. 13/9064.
  48. ^ Schroth : Central problems of interpretation of the 6th Penal Law Reform Act. In: NJW. Munich 1998, pp. 2861-2866.
  49. ^ Van Els: Loss of eyesight and other abilities mentioned in Section 224 of the Criminal Code. In: NJW. Munich 1974, pp. 1074-1076.
  50. ↑ a b c d e Joecks: Study Commentary StGB. 2012, p. 434 f.
  51. ^ BGH, judgment of February 29, 1972, Az. 5 StR 400/71, LS. 1; BGHSt 24, pp. 315-318.
  52. ^ LG Hamburg , judgment of July 21, 1965, Az. (40) 26/65.
  53. ^ Rengier: Criminal Law. 2012, p. 122.
  54. ^ Hardtung in: Munich Commentary. 2012, p. 1006.
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  56. ^ Hirsch in: Leipziger Commentary. 2005, p. 121.
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  58. ↑ BGH, judgment of August 25, 1993, Az. 5 StR 481/93, Rn. 3.
  59. ↑ BGH, decision of August 10, 2004, Az. 3 StR 263/04, Os. 1; ( Link to the decision on bundesgerichtshof.de ).
  60. ↑ a b c d Hardtung in: Munich commentary . 2012, p. 1011.
  61. ↑ BGH, decision of August 11, 1987, Az. 3 StR 341/87, Rn. 3.
  62. ↑ a b c d Fischer: Penal Code and ancillary laws. 2012, p. 1514 f.
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  65. ^ Murmann: Basic course in criminal law. 2011, pp. 245, 134 f.
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  68. ↑ BGH, judgment of November 19, 1997, Az. 3 StR 271/97, Rn. 12; BGHSt 43, pp. 306-311.
  69. ↑ Horn: The medical intervention that is not medically indicated, but required by the patient - is it punishable? In: JuS. Munich 1979, pp. 29-31.
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  71. ↑ BGH, judgment of February 22, 1978, Az. 2 StR 372/77, Rn. 9.
  72. ^ A b c Hardtung: Munich commentary. 2012, p. 1009.
  73. ^ BGH, judgment of June 21, 1968, Az. 4 StR 157/68, Os. 5.
  74. ↑ a b Hirsch in: Leipziger Commentary. 2005, p. 119 f.
  75. ^ Rengier: Criminal Law. 2012, p. 130.
  76. ↑ Laubenthal : The attempt of the qualified offense including the attempt in the particularly serious case in the case of rule examples. In: JZ. Tübingen 1987, pp. 1065-1070.
  77. ↑ Kühl: Criminal Law. 2012, p. 636.
  78. ↑ a b c Hardtung in: Munich Commentary. 2012, p. 1009 f.
  79. ^ BGH, judgment of March 27, 1953, Az. 1 StR 689/52; BGHSt 4, pp. 113–119, LS. 2.
  80. ↑ BGH, decision of September 29, 1998, Az. 4 StR 357/98, Rn. 3.
  81. ^ Hardtung in: Munich Commentary. 2012, p. 987.
  82. ^ Hirsch in: Leipziger Commentary. 2005, p. 97.
  83. ↑ BGH, judgment of June 25, 2002, Az. 5 StR 103/02, Tn. 1 ( link to the judgment on bundesgerichtshof.de ).
  84. ↑ a b Hirsch in: Leipziger Commentary. 2005, p. 100
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  86. ^ Hirsch in: Leipziger Commentary. 2005, p. 101.
  87. ↑ Rubo: comment on the Penal Code for the German Reich. 1879, pp. 775-782.
  88. ↑ a b Paeffgen in: Criminal Code. 2010, p. 1000 f.
  89. ↑ a b c Hardtung in: Munich Commentary. 2012, p. 1012.
  90. ↑ BT-Drs. 16/12910.
  91. ↑ BT-PlPr 17/222. (PDF; 5.7 MB) German Bundestag, February 21, 2013, pp. 174–180 , accessed on June 2, 2013 .
  92. ↑ BR-Drs. 867/09. (PDF; 57 kB) Federal Council, February 12, 2010, p. 7 , archived from the original on October 7, 2013 ; Retrieved December 10, 2012 .
  93. ^ Hardtung in: Munich Commentary. 2012, p. 955.
  94. ↑ Bernhard Hardtung: Statement on the preparation of the public hearing in the legal committee on the draft bills BT-Drucksachen 17/1217, 17/12374 and 17/4759. (PDF; 410 kB) Bundestag, April 23, 2013, archived from the original on June 17, 2013 ; Retrieved May 21, 2013 .
  95. ^ Hahn: Genital mutilation: effective victim protection through a separate criminal offense. In: ZRP . Munich 2010, pp. 37–40.
  96. ↑ Alexander Weinlein: Law: Punishments for genital mutilation. Parliament, July 1, 2013, archived from the original on December 3, 2013 ; Retrieved July 13, 2013 .
  97. ↑ Text and amendment by the 47th Criminal Law Amendment Act of September 24, 2013 (Federal Law Gazette I p. 3671)
  98. ^ Correction of the 47th Criminal Law Amendment Act of December 30, 2013 (BGBl. 2014 I p. 12)
  99. ↑ a b Police crime statistics 2019 - time series overview of case tables. (xlsx, csv) Federal Criminal Police Office, accessed on March 30, 2020 .
  100. ↑ Federal Criminal Police Office: PKS 2019 - IMK report. P. 9 , accessed March 24, 2020 .
  101. ↑ Michael Tonry: Why Crime Rates Are Falling Throughout the Western World, 43 Crime & Just. 1 (2014). Retrieved June 6, 2019 .
This version was added to the list of articles worth reading on June 17, 2013 .