Assault is one of the most common crimes committed in Germany. Statistically, 483,703 cases of assault were recorded by the police in 2021. Ten years earlier, in 2011, there were 541,254 cases recorded by the police. It can be seen here that the number of bodily injury offenses is approximately constant. The relevant standard for assessment is § 223 of the StGB, in which case, as a matter of fact, another person must have been physically abused or harmed in health.
The bodily injury
(1) A person who physically abuses another person or causes damage to another person's health shall be punished by imprisonment for not more than five years or a fine.
(2) The attempt is punishable.
The protected legal interest is therefore "physical integrity". In case of doubt, this also includes the triggering of diseases. Thus, it can rather be formulated that under the § 223 of the StGB Offenses against the human body fall. Furthermore, interventions in the mental health of humans may also fall within the scope of the criminal offense of bodily harm. However, this is partly disputed in the broad discussion. The concept of protected legal property must therefore be extended to include not only the body but also the psyche, and thus encompasses both concepts. Bodily injury is a pure success offense in the form of an injury offense. The success itself is thus the physical abuse or the health damage.
Even if it usually takes a long time for the abuse or damage to health to subside, bodily injury is not a permanent offense. With the occurrence of the success of the injury the facts are fulfilled and on the duration of the pain it does not depend in short consideration further. Likewise, bodily injury is a so-called intentional crime. This does not mean, however, that the negligent commission is not punishable. This is regulated by § 229 of the StGB.
Negligent bodily injury
A person who causes bodily injury to another person through negligence shall be punished by imprisonment for not more than three years or by a fine.
"Ordinary" assault is a misdemeanor, not a felony, because the sentence includes the phrase "up to" and is less than one year when in doubt.
In the context of the factuality of the § 223 StGB the bodily injury or damage to health must be directed against another person. Therefore, the perpetrator cannot be the victim at the same time. Likewise, this other person must already be born and must not yet be dead. There are separate penal provisions for both cases. These are either disturbance of the peace of the dead or abortion. In summary, therefore, it can be said that the victim of the act must be another person who is alive and already born.
Really simple is not the consideration of the body. In detail many questions arise here, what belongs to the body or not anymore. In case of doubt, it is no longer a matter of the body as a protected good, but of things that merely help a person in certain life situations. These helpful things include, for example, contact lenses or artificial limbs such as prosthetic arms. When it comes to implants, opinions differ.
Among other things, we are talking about pacemakers, artificial joints. The prevailing opinion is that the above-mentioned items are components belonging to the body if they are permanently and firmly connected to a living human body. They then become a separate part of the body and no longer stand independently as a thing.
The opposing view distinguishes between the type of implant. A distinction is made between implants that take on a substitute function in the body and those that merely support the human body in its function. According to this view, the former is a component of the body and the latter is not. One speaks here of replacement teeth, which replace the originals and with supporting implants for example of heart pacemakers.
It is also interesting to consider whether parts separated from the body can still be counted as part of the body or not. If not, the catch-all offence could always be damage to property according to § 303. StGB be consulted. More interesting, however, remains a conceivable punishment of the perpetrator according to § 223 StGB. In this problem, a distinction can be made between different groups of cases.
The first group of cases deals with those parts that have been separated from the body but are to be reconnected to it in the short term. For example, a finger, leg or hand may be cut off. The aim is to reconnect this part to the body in the short term.
The second group of cases also involves parts that have been separated from the body, but these can or should only be reconnected to the human body after a longer period of time. We are talking here, for example, about autologous donations such as blood plasma or an egg cell that has been removed for artificial insemination and is only reinserted after successful fertilization.
3. the third group of cases deals with the components separated from the body, which are not to be reconnected with it. A further distinction is made here between the groups whereby the component is still used for "endogenous" purposes and is not intended to be used for "endogenous" purposes but benefits another person and body parts which are not intended to be reconnected to one's own body and also no longer intend any "endogenous" purpose as a whole.
However, this question is only really relevant if one has to specifically consider these aspects in a dispute. In a simple scuffle between two people, the aspect of the body component will rarely have to be discussed. Which view one takes, whether the body components mentioned above in the case groups are and remain a part of it or not, will continue to be discussed intensively. In case of doubt, these cases will require an intensive legal assessment by an Lawyer for criminal law.
As mentioned above, bodily injury means that physical abuse has been inflicted on another person or that the person's health has been damaged. In both cases, it is still referred to as bodily injury. How exactly the bodily injury was committed is also relevant. The bodily injury can be caused specifically by active doing or also by omission. The commission of the offense by omission is to be considered if the perpetrator was in a certain guarantor position.
This position of guarantor can be assumed, for example, in the case of parents who have damaged their child's health by failing to act or who have physically abused their child. However, the former is more likely by omission. As in the case of most criminal offenses, punishability requires the result of the offense, an act, causality between the act and the result, and objective attribution. Furthermore, the perpetrator must not have any justifying or excusing reasons for his act.
At the beginning, it has to be checked for the first time whether physical abuse is present. This is done with the help of definitions. As soon as a circumstance falls under the definition of abuse, the facts can be subsumed under it. One definition here is: "Physical abuse is a not insignificant impairment of the body in its condition or state of health."
As may not be immediately apparent at first glance, physical abuse covers only purely physical abuse. Mental harm may therefore fall under health impairment. An exception is when purely mental impairments have physical effects in the end. In case of doubt, physical maltreatment can also be assumed in this case. It should be noted that the consideration with and without the damaging event is always applied.
In this relative integrity, it is already covered if an impairment existed before the event and this has further worsened with the event. In this point, the definition should therefore no longer speak of the integrity of the body, but of a general condition of the body.
With the addition of "not insignificant" in the definition, the legislator has deliberately included a de minimis limit in the elements of the offense of bodily injury. With this limit, care is taken to ensure that an act must have a certain character in order to qualify as bodily injury. Here, a purely objective examination of the materiality is carried out. The subjective feeling of the victim is not relevant.
Whether an act is now not insignificant is tested against proportionality. Is the act so bad that the minimum degree of bodily injury seems justified in a subsequent guilty verdict for the perpetrator? If so, then triviality can no longer be assumed. In the meantime, however, case law agrees that the threshold for bodily injury must be set quite low.
In addition to physical abuse, bodily injury may also be committed if the injury is caused to health instead. The definition of damage to health states: "Damage to health is any cause or increase of a pathological condition. A pathological condition is any condition adversely deviating from the normal state of the victim's physical functions."
This is interesting when there was no physical contact between the victim and the perpetrator, but only psychological stress is the result. It is therefore very controversial when bodily injury can be assumed and when it cannot. For example, bodily injury was assumed in the context of health damage if the victim was able to demonstrate anxiety, trembling or shortness of breath after the act, e.g. due to telephone terror. According to case law, mood swings or flashbacks were not sufficient.
In these diseases, it was a characteristic that there was a physical consequence in addition to a psychological impact. Of interest is therefore again, if the consequences of the victim are purely mental illnesses and there is no physical illness. Within the framework of case law, not much can be found here yet. However, the LG Bochum has considered a depression as a consequence of an act as a health injury. According to the literature, mental illnesses are usually excluded from health impairment.
However, there has been a change in society in recent years. The image of mental illness has changed fundamentally and more and more attention and value is being placed on this type of health. Paranoia, anxiety or even depression are now recognized diseases in society and for this reason they should be recognized as a health impairment.
It was and is also disputed whether medical treatment can constitute bodily injury. A medical treatment is when the integrity of the body is interfered with in order to alleviate or completely eliminate illnesses, physical complaints or mental disorders. In general, medical treatments serve to improve health. Excluded from this are purely cosmetic operations. In most cases, these directly fulfill the offense of bodily injury, but the victim consents to this injury and must also confirm this in writing before the operation.
In the case of medical treatment, however, the argument is the same. Anyone who commissions a doctor to promote health will also agree to possibly having to undergo surgery. Even if the goal is a good one, pain often occurs in the healing process and the surgery itself is factually a bodily injury. However, this is justified by the patient's consent.
Bodily injury is only punishable if the subjective elements of the offense are also fulfilled. For this to be fulfilled, intent is required. In the case of general intent within the framework of dolus directus, knowledge and intent to commit the offense are therefore required. Also called dolus directus of the 1st and 2nd degree. Within the scope of intent, all possibilities of intent are conceivable. Thus, the act can be committed intentionally, knowingly or also by a contingent intent.
According to the subjective elements of the offense, the act must also be unlawful and culpable. This is the case if the perpetrator cannot show any justifying or excusing reasons. In this case, the possible consent of the victim to the bodily injury would be applied. The medical intervention was mentioned as an example. However, this also exists with body jewelry such as a piercing or a tattoo. In both cases, bodily injury could easily be assumed here if there is no consent.
The penalty for simple assault is imprisonment for up to five years or a fine. If one looks at the case law, then it is mostly only fines that are pronounced. Prison sentences are rather rare and beyond two years even rarer. In order for this type of punishment to be imposed, the offender must be guilty of a serious offense or have already committed frequent offenses and be known to the authorities.
In the context of sentencing, it is therefore relevant whether or not the victim gave the offender cause to commit the crime. Did he provoke or not? Are both parties partly to blame for the outcome of the situation? In case of doubt, this can be a mitigating factor in the sentencing. As usual, bodily injury is also subject to the statute of limitations. Here, the statute of limitations takes effect after five years. Before that, therefore, a complaint must have been filed by the victim and the public interest in prosecution must also be present. Only then does the public prosecutor's office begin to act. A private or accessory prosecution also remains possible.
Furthermore, in addition to simple bodily injury, there are also qualifications to the basic offense. One of these is § 224 of the StGB is a new law. This deals with dangerous bodily injury.
Dangerous bodily injury
(1) Whoever commits the bodily injury
1. by bringing poison or other substances harmful to health,
2. by means of a weapon or other dangerous tool,
3. by means of a sneak attack,
4. jointly with another party or
5. by means of an act endangering life
shall be punished by imprisonment for a term of six to ten years, and in less serious cases by imprisonment for a term of three months to five years.
(2) The attempt is punishable.
As in the facts of § 224 StGB This is the dangerous commission of bodily injury. Therefore, the basic offense is and always remains bodily injury according to § 223. StGB. In this respect, it only depends on how it was committed. This includes the use of poison, weapons or dangerous tools as well as the attack from ambush. The focus is always on the act and not the result.
The severity of the injury is not directly relevant, but only the "how" of the commission comes into closer consideration. In most cases, this is connected with the fact that a more serious impairment or injury will result from the dangerous manner of commission. Generally, this is not relevant when assessing whether a dangerous bodily injury has occurred. Statistically, 122,341 cases of dangerous and serious bodily injury were recorded in 2021.
In addition to simple and dangerous bodily injury, aggravated bodily injury also continues to exist. As in the case of dangerous bodily injury, grievous bodily harm is a qualification of the basic offense under § 223. StGB. However, aggravated bodily injury differs from dangerous bodily injury in that aggravated bodily injury, unlike dangerous bodily injury, is not aimed at the commission of the offense, but at certain consequences of the bodily injury. Thus, the threat of punishment for grievous bodily harm is not linked to the act, but to the respective consequence of the act.
The serious bodily injury
(1) If the bodily injury results in the injured person's
1. loses vision in one eye or both eyes, hearing, speech, or reproductive ability,
2. loses or permanently loses the use of an important limb of the body, or
3. is permanently disfigured in a significant way or falls into infirmity, paralysis or mental illness or disability,
the penalty is imprisonment from one year to ten years.
(2) If the perpetrator intentionally or knowingly causes one of the consequences referred to in paragraph (1), the punishment shall be imprisonment for not less than three years.
(3) In the less serious cases referred to in paragraph (1), the penalty shall be imprisonment for a term of six months to five years, and in the less serious cases referred to in paragraph (2), imprisonment for a term of one year to ten years.
The paragraph 1 of the § 226 of the StGB describes in detail and conclusively the consequences of bodily injury that may result in aggravation of punishment. Paragraph 2 is aimed more precisely at the necessary intent of the perpetrator, which he must have for the realization. Paragraph 3 describes in particular the penalty for less serious cases.
In the context of vision, it is necessary to quantify the point at which one can speak of a loss of vision. Here, vision does not necessarily have to drop to 0 %. According to prevailing doctrine, a loss to 2'% is sufficient to be able to speak of a complete loss. Case law also affirms a loss of up to 10 %. In the case of a loss of hearing, the loss is not based on one ear. Here, the complete loss of hearing on both sides is required.
Whether there was already a hearing loss on one side can be irrelevant if the second side is now also deaf. In the context of the ability to speak, a differentiation must be made. There does not have to be a complete loss of voice, but a slight stuttering is not sufficient either. Here, therefore, it is an interpretation of the court as of when one can speak of a loss of the ability to speak or not. The ability to reproduce concerns the ability to procreate, conceive and give birth. Impotence is therefore not covered by the elements of § 226.
In the context of an assessment, it must be apparent in the long term that a prognosis for recovery appears negative. Medical measures must not promise success.
Paragraph 1 No. 2 defines in more detail that serious bodily injury is to be assumed if the victim loses an important limb or if permanent incapacitation has occurred. Above all, the question often arises here as to what can be understood by an important limb. According to the definition, an important limb is one that is a self-contained part of the body with a special function in the organism as a whole and is connected to the body by a joint. It must have a general significance for human life.
Examples would include hands, feet, legs or arms. The discussion starts when talking about internal organs, for example. The loss of a kidney or parts of another important organ can have far worse consequences than the loss of a toe. According to the definition and also not included by the BGH, these organs do not fall within the scope of § 226 StGB.
In the context of disfigurement, the outer appearance of the victim must have been badly changed in the purely aesthetic effect. Mostly in line with this, there are psychological disadvantages for the victim. Whether the person was already unaesthetic before is irrelevant. Disfigurement also includes a very large, wide and long scar. The disfigurement does not always have to be permanently visible. Thus, it also comes to a consideration of the body in situations that are not always given. An example of this is a visit to an outdoor swimming pool.
The consequence of a serious illness can be assumed when the victim falls into a serious chronic state of illness that has an impact on the entire organism. This includes infirmity. Mental illness is aimed at a mental disorder. In the point of the handicap it is not directly clarified whether the legislator speaks of a mental or physical handicap. In general, however, a disability can be subsumed if the victim suffers a significant impairment of bodily function.
Like bodily injury under § 223, the commission of the act requires intent. However, this intent no longer refers only to the commission of the act, but to the directed consequence of the grievous bodily harm. Also as with the § 223 and § 224 of the StGB the perpetrator must have acted unlawfully and culpably. Possible grounds for justification, however, would be self-defense according to § 32, state of necessity according to § 34 or consent § 228 of the StGB.
If several criminal acts are committed in the course of one act, the question may arise as to which standard the perpetrator could be punished under. Logically, § 224 displaces the basic offense from § 223 StGB, since the latter sets special requirements for the commission of the offense as a qualification. However, if the bodily injury has a serious consequence in addition to the dangerous manner of commission, then the elements of § 226 StGB would displace the standards §§ 223 and 224 StGB and a harsher punishment would be the consequence.
What many do not directly consider is that in case of doubt, the victim of the bodily injury is also entitled to a certain amount of compensation for pain and suffering or damages. Here the amounts are always different. From no claim to several thousand euros, the range is large. For this reason, a well-chosen and professionally specialized lawyer is needed to fight for your good right.
The norms of §§ 223 ff. StGB are firmly anchored and protect the legal asset of physical integrity with great raison d'être. If you have any questions on this subject, please do not hesitate to contact us. We are happy to be your competent contact and will fully take care of a solution to your case!
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Mr. Patrick Baumfalk, attorney at law
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