Körperverletzung: what penalty you face if a report is made after a fight

The statutory definition is short: whoever physically maltreats another person or damages their health is punished with imprisonment of up to five years or with a fine (§ 223 Abs. 1 StGB). The law does not name a threshold of injury measured in centimetres or in days of incapacity for work.

Anyone who did not intend the injury but caused it through negligence falls under § 229 StGB, with imprisonment of up to three years or a fine. The difference between intent and negligence is therefore not a nicety but a decision between two different sentencing ranges.

§ 226 Abs. 1 StGB covers certain lasting consequences, among them the loss of sight, of hearing, of the ability to speak or of the ability to reproduce, the loss of an important limb, a serious lasting disfigurement, and falling into a state of infirmity, paralysis or mental illness. The penalty is then one year to ten years. If the offender causes one of these consequences intentionally or knowingly, the penalty is imprisonment of not less than three years (§ 226 Abs. 2 StGB). For less serious cases, § 226 Abs. 3 StGB applies.

If the offender causes the death of the injured person through the Körperverletzung, the penalty is imprisonment of not less than three years (§ 227 Abs. 1 StGB), and in less serious cases one year to ten years (§ 227 Abs. 2 StGB).

Whoever commits an act that is called for by Notwehr (defence against a present unlawful attack) does not act unlawfully (§ 32 Abs. 1 StGB). Notwehr is the defence that is necessary in order to avert a present unlawful attack on oneself or on another (§ 32 Abs. 2 StGB). Alongside it stands the justifying necessity of § 34 StGB, which presupposes a present danger that cannot be averted otherwise and requires a weighing in which the protected interest must substantially outweigh the interest impaired.

The sentence that matters most in this section is not in the statute: whether the requirements were met is assessed later by a court, and it is assessed from the case file, with witness statements, medical findings and recordings that nobody had before their eyes at the moment it happened. The line between necessary defence and going beyond it may be drawn differently afterwards than it was in the second itself.

There is a separate provision for going beyond it: if the offender exceeds the limits of Notwehr out of confusion, fear or fright, they are not punished (§ 33 StGB). This provision is narrowly drawn and, by its wording, covers only these three states.

Intentional Körperverletzung under § 223 StGB and negligent Körperverletzung under § 229 StGB are prosecuted only on application, unless the prosecuting authority considers that intervention of its own motion is called for because of a special public interest in prosecution (§ 230 Abs. 1 Satz 1 StGB). The Strafantrag (a formal application for prosecution made by the person entitled to it) is tied to a time limit of three months, which begins at the end of the day on which the person entitled learns of the offence and of the identity of the offender (§ 77b Abs. 1 und 2 StGB).

Two points about this. First: § 224 StGB is not listed in § 230 Abs. 1 StGB. Where the allegation is gefährliche Körperverletzung, prosecution does not depend on a Strafantrag. Second: even under § 223 StGB, an investigation can be carried out of the authority's own motion where a special public interest is assumed. Withdrawing a Strafantrag therefore does not necessarily bring proceedings to an end.

§ 223 and § 229 StGB are at the same time offences that can be pursued by Privatklage (a private prosecution brought by the injured person) under § 374 Abs. 1 Nr. 4 StPO. The injured person can therefore bring the charge themselves if the Staatsanwaltschaft (the public prosecution office) does not prefer an indictment.

The guilt of the offender is the basis for fixing the sentence (§ 46 Abs. 1 StGB). The court weighs the circumstances that speak for and against the offender, among them the motives, the degree of breach of duty, the manner of commission, the culpable effects of the offence, the person's previous record and their conduct after the offence, in particular their efforts to make good the damage and to reach a settlement with the injured person (§ 46 Abs. 2 StGB). Circumstances that are already elements of the statutory definition of the offence may not be taken into account (§ 46 Abs. 3 StGB).

The Täter-Opfer-Ausgleich (offender and victim reaching a settlement) is governed separately. Where the offender, in an effort to reach a settlement with the injured person, has made good their offence in full or for the greater part or has seriously striven to make it good, or where in a case in which making good the damage required considerable personal performance or personal sacrifice on their part they have compensated the victim in full or for the greater part, the court may mitigate the sentence or, where no sentence higher than imprisonment of up to one year or a fine of up to three hundred and sixty Tagessätze (daily units) has been incurred, may refrain from imposing a penalty (§ 46a StGB). Whether and when such a step comes into consideration should be decided only after Akteneinsicht. It has an effect back on the pending proceedings.