Bodily harm under excusable motive

Legal definiton 

Section 146a of the Criminal Code:

(1) Whoever intentionally causes bodily harm to another personon another person in a state of strong emotional disturbance due to fear, shock, confusion, or other excusable mental agitation, or as a result of prior reprehensible conduct by the victim, shall be punished by imprisonment for up to one year.

(2) The perpetrator shall be punished by imprisonment for up to three years if the act mentioned in paragraph 1 causes serious bodily harm.

(3) Whoever intentionally inflicts grievous bodily harm on another person in a state of strong emotional disturbance due to fear, shock, confusion, or other excusable mental agitation, or as a result of prior reprehensible conduct by the victim, shall be punished by imprisonment for up to four years.

(4) The perpetrator shall be punished by imprisonment for one to six years if they commit the act mentioned in paragraph 3

a) against two or more persons,

b) against a pregnant woman,

c) against a child under fifteen years of age.

(5) The perpetrator shall be punished by imprisonment for two to eight years if the act mentioned in paragraph 1 or 3 results in death.

Subjective aspect - intent

Bodily harm is an intentional criminal offence. A criminal offence is committed intentionally if the perpetrator wanted to violate or endanger a legally protected interest in the manner specified by the Criminal Code (direct intent), or if the perpetrator knew that his actions could result in such a violation or endangerment and accepted the possibility of it occurring (indirect intent).

If the act can be deemed as mere negligence rather than intent, it does not constitute the described criminal offence. 

Defense

In crimes against life and health, even seemingly minor details can have a fundamental impact on the outcome of the criminal proceedings. This not only affects whether the person will be convicted or acquitted but also which specific crime may be attributed to their actions.

In the context of bodily harm, particularly serious bodily harm, one of the fundamental questions is to assess the outcome in the specific case. This means determining whether it constitutes bodily harm under Section 122 (1) of the Criminal Code or whether it amounts to grievous bodily harm under Section 122 (2) of the Criminal Code. It is also important to consider the perpetrator's intent or negligence in the matter.

Bodily harm is understood as a condition involving a disruption of health or another illness that impairs the victim's usual way of life, not merely for a short period, due to the disruption of normal physical or mental functions, and which requires medical treatment. The specific criteria are clarified by case law, where, for example, "not a short period" is considered to be at least seven days.

Grievous bodily harm refers to a serious impairment of health or another serious illness. Under these conditions, grievous bodily harm includes mutilation, loss or significant reduction of work capacity, paralysis of a limb, loss or significant impairment of sensory function, damage to a vital organ, disfigurement, causing a miscarriage or stillbirth, excruciating pain, or long-term health impairment. Case law is also significant here, as it, for example, defines "long-term" as approximately six weeks.

There are various defense strategies available. Given the elements of this crime, the following questions may be relevant:

• Did the injury result from the perpetrator's actions?
• What was the nature of the health impairment caused?
  
• In what way was the aggrieved person's way of life restricted?
  
• How long did the impairment last and at what intensity?
  
• Did the health impairment require medical treatment?
  
• What was the relationship between the perpetrator and the victim?
• Did the victim provoke the perpetrator (e.g., through a previous attack, reprehensible behavior)?
• Are there any circumstances excluding unlawfulness present (e.g., self-defense)?
• Was the perpetrator sane at the time of the act? Were they under the influence of alcohol, drugs, or mental illness?
• Was the perpetrator's intent directed towards the decisive facts?

In criminal offences against life and health, it is particularly important to thoroughly reconstruct the entire course of the relevant actions and their context. An expert opinion can play a very significant role, for example, by clarifying the manner, direction, instrument, or intensity of the attack and what kind of outcome it could objectively have caused. This also impacts the assessment of the perpetrator's (non-)existence of intent.

Similarly, the expert opinion can address the consequences of the perpetrator's actions or what the perpetrator could realistically have anticipated under the specific circumstances.