Negligent bodily injury after a road accident in Germany: what penalty applies

As a matter of principle only intentional conduct is a criminal offence; negligent conduct is a criminal offence only where the statute expressly provides for a penalty for it (§ 15 StGB). For bodily injury it does: anyone who causes bodily injury to another person through negligence is punished under § 229 StGB.

What counts as a breach of care in road traffic follows from the rules that apply to everyone. § 1 Abs. 1 StVO, from the German road traffic regulations, requires constant care and mutual consideration. Under § 1 Abs. 2 StVO everyone has to behave in such a way that no other person is harmed, endangered or hindered or inconvenienced more than is unavoidable. § 3 Abs. 1 StVO requires driving only at a speed at which the vehicle is under constant control, and adapting speed to the road, traffic, visibility and weather conditions.

The second point is the more important one: it is not enough that there is a breach. The breach must have caused the injury. This is exactly where a defence starts, and exactly here the case file decides, not the feelings of those involved.

§ 34 Abs. 1 StVO names the duties after a road accident: to stop without delay, to make the traffic situation safe, to satisfy oneself about the consequences of the accident, to help injured persons, to tell the other persons involved and those who have suffered damage that one was involved in the accident, and on request to give one's own name and address. Traces of the accident may not be removed before the necessary findings have been made (§ 34 Abs. 3 StVO).

The provision contains no duty to describe the course of events or to admit fault of one's own. As an accused person you are to be told at the examination which offence you are charged with, and you are to be informed that you are free to comment on the charge or to make no statement on the matter and to consult a defence lawyer of your choice at any time, including before the examination (§ 136 Abs. 1 Satz 2 StPO).

Between those two sentences lies the most difficult moment of the whole proceedings. Anyone who has just been through an accident is under strain and speaks out of decency. What is said then appears later in the case file.

Two provisions have to be kept apart. In the running proceedings the judge can provisionally withdraw the Fahrerlaubnis (the legal permission to drive) where there are urgent grounds for the assumption that it will be withdrawn (§ 111a Abs. 1 Satz 1 StPO). Where the requirements fall away, or the court does not withdraw the Fahrerlaubnis in the judgment, the provisional withdrawal is to be lifted (§ 111a Abs. 2 StPO).

At the end the court withdraws the Fahrerlaubnis where it follows from the offence that the convicted person is unsuited to drive motor vehicles (§ 69 Abs. 1 Satz 1 StGB). § 69 Abs. 2 StGB names five offences in the case of which the offender is as a rule to be regarded as unsuited: endangering road traffic (§ 315c StGB), prohibited motor vehicle races, driving while unfit through drink or drugs, leaving the scene of an accident without permission under § 142 StGB on the requirements named there, and complete intoxication in relation to those offences. Fahrlässige Körperverletzung under § 229 StGB does not appear in that list. That does not mean that the Fahrerlaubnis is safe; it means that unsuitability has to be established in the individual case.

Independently of that, a Fahrverbot (a ban on driving) of one month to six months comes into consideration (§ 44 Abs. 1 Satz 1 StGB).

Where the investigation provides sufficient grounds for bringing the public charge, the Staatsanwaltschaft brings it (§ 170 Abs. 1 StPO). Otherwise it discontinues the proceedings (§ 170 Abs. 2 StPO). Alongside that stands discontinuation subject to conditions and directions under § 153a Abs. 1 StPO, which in the case of a Vergehen, the less serious of the two categories of criminal offence in German law, is possible with the consent of the accused person and, as a matter of principle, of the competent court as well; we have a separate guide on that. Which route comes into consideration is decided by the content of the case file.

For sentencing, § 46 StGB applies: the guilt of the offender is the basis for fixing the sentence, and the court weighs the circumstances that speak for and against them, among them the degree of the breach of duty, the culpable consequences of the offence and the conduct after the offence, including efforts to make good the damage (§ 46 Abs. 1 und 2 StGB). Circumstances that are already elements of the statutory offence may not be taken into account (§ 46 Abs. 3 StGB).