At the folk festival too strong with the head out? We will clarify if you can go to prison for this!
In the context of criminal proceedings, the question often arises as to whether the offense of a perpetrator is simple assaultaccording to § 223 Abs. 1 StGBor as dangerous bodily injury according to § 224 Abs. 1 StGBis to be classified. If you look at the two penalties, it becomes obvious why this plays a significant role.
For simple assault, the law provides as a penalties for imprisonment up to 5 years or fine. The latter, ie the fine, is fundamentally not possible in the context of a dangerous bodily injury, since the legislator here provides for a prison sentence of 6 months up to 10 years. In this respect, it can already be seen from the foreseen threat of punishment that the accused has serious legal consequences to expect and for this reason the defense lawyer will often see his task in convincing the court of the existence of a simple personal injury.
What is a "dangerous bodily injury"?
The legislature justifies the increased punitive framework of § 224 para. 1 StGB with the way in which the bodily harm is committed, and in doing so reflects five forms of the offense which lead to the bodily injury being qualified as a "dangerous bodily injury":
1.) By supplying poison or other dangerous harmful substances
2.) Using a weapon or other dangerous tool
3.) By means of a cunning robbery
4.) With another party jointly or
5.) By means of a life-threatening treatment
Does a head butt fall under the number 5 (life-threatening treatment)?
In order for a personal injury to be classified as "dangerous" in the sense of § 224 para. 1 No. 5 StGB, it must be committed "by means of a life-threatening treatment". On the basis of the case law (among other things KG decision v. 22.12.2011 - (4) 1 Ss 441 / 11 (315 / 11)) is necessary, but sufficient, that the kind of the treatment by the offender after the Circumstances of the caseis generally suitable to endanger the life of the victim. However, it is important that a specific hazard is not necessary.
In other words, this does not mean that there is a real danger to your life in the specific case. It is therefore sufficient that the perpetrated in each case bodily injury would be fundamentally suitable to trigger a mortal danger.
In the above decision of the Berlin Supreme Court, the victim suffered a nasal bone fracture due to a "powerfully executed" head butt, which had to be treated with a splint for two weeks. This was apparently sufficient for the Landgericht Berlin to qualify the action as a "dangerous bodily injury" within the meaning of § 224 Abs. 1 Nr. 5 StGB and to use the increased penalties.
However, the Berlin Court of Appeals saw this differently. In his view, it would have been necessary for the Court to overturn the general Fitness of the present Head butt as life threatening notes.
"Neither from the description of the head but from the consequences of the crime can the abstract danger of death occur sufficiently clearly. A nasal bone fracture, although a significant injury, does not allow for that conclusion on its own. In many cases, it is the result of violent effects on the face, such as punches, which nevertheless do not pose a life-threatening treatment. (...) It would therefore have required (...) further explanation and further details to prove that the head-buttom conducted by the defendant was generally suitable for endangering the life of the victim. "
Based on the above, it can be seen that it is - as so often in the law - on a case-by-case basis. At the same time, not every head butt can be classified as a dangerous bodily injury. Precisely because the public prosecutor's offices and courts often hastily affirm the conditions for a dangerous bodily injury, it is the task of the defense counsel to refute this, if necessary with the help of an expert's report.
As an accused of a criminal investigation, you should absolutely exercise your right to silence and, at first, not give any information on the matter. Contact us, we will help you.
If you also have questions about criminal law, do not hesitate to contact us. Our Lawyer Alexander Greithaner specializes in the field of criminal law and will also help you.
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