Definition and Principles of Failure to Render Assistance
Die failure to render assistance constitutes a legally relevant violation of duty under criminal law, which is codified in numerous national legal systems, especially in German criminal law. It refers to the intentional refusal to provide necessary assistance in an emergency situation, despite such action being reasonable. The provision aims to protect people in dangerous situations from indifference and lack of support from third parties.
Key cases of failure to render assistance include emergencies resulting from accidents, medical crises, or violent acts, where a person present could and should have provided help.
Legal Basis and Framework in Germany
Statutory Provisions (§ 323c StGB)
In Germany, failure to render assistance is regulated in § 323c of the German Criminal Code (StGB). The wording of the provision is:
“Anyone who fails to render assistance in cases of accidents, common danger or emergency, although such assistance is necessary and reasonable under the circumstances, in particular if it is possible without significant personal risk and without violating other important duties, shall be punished by imprisonment for up to one year or by a fine.”
Purpose of the Norm
The provision protects the public interest in mutual assistance during emergencies. Its purpose is to prevent a climate of helplessness and social coldness in society. The legislature regards this failure to act as a specific form of social danger.
Elements of the Offense of Failure to Render Assistance
1. Existence of an Emergency Situation
A prerequisite for the offense is the existence of a disaster, a common danger or Not:
- Disaster: A sudden event that poses significant danger to human life or health (e.g. traffic accident, heart attack, fire).
- Common Danger or Emergency: Situations that endanger a large number of people or present a general risk to life and health (e.g. large fires, gas explosions, natural disasters).
2. Failure to Act Despite Necessity for Aid
The perpetrator must fail to provide assistance , although such assistance was necessary. Assistance is any action suitable and necessary to avert the acute danger, such as calling emergency services, tending to the injured, or securing an accident scene.
3. Reasonableness of Rendering Assistance
The assistance must be reasonable. No individual is required to act if it would expose them to significant harm to body or life or other serious disadvantages. Personal duties of protection and care may also preclude rendering assistance.
4. Possibility of Providing Assistance
Assistance can only be required if it is possible . Physical or mental limitations that make support impossible preclude criminal liability.
5. Intent
The offense requires intent ; negligence is insufficient. The offender must be aware of the emergency and purposefully refrain from providing possible assistance.
Sanctions and Penalties
Threat of Punishment
§ 323c StGB provides for imprisonment of up to one year or a fine for failure to render assistance. The law does not specify a particularly serious case. Sentencing depends on the individual circumstances, particularly the extent of the omission and the resulting consequences.
Attempt and Complicity
Criminal liability for attempt is not possible, as this is a pure omission offense. Aiding and abetting failure to render assistance requires involvement in the breach of duty.
Distinction from Other Offenses
Omission Offense vs. Guarantee Position
Unlike failure to render assistance as an independent offense, other offenses by omission (e.g. failure to prevent bodily injury resulting in death) require higher duties of care as a result of a so-called guarantor position, which applies, for example, to relatives or persons in supervisory roles.
Relationship to Failure to Report (§ 138 StGB)
Unlike failure to report planned crimes the duty to render assistance relates to acute emergencies, whereas § 138 StGB centers around the duty to report a planned or already committed crime.
Practical Significance and Typical Case Scenarios
Traffic Accidents
A classic example of the relevance of the provision is traffic accidents, where bystanders, witnesses, or persons involved in the accident fail to provide necessary assistance, although this would have been possible without endangering themselves.
Medical Emergencies
In medical emergencies, such as sudden unconsciousness in public places, there is also a duty to assist by calling emergency services or applying basic first aid measures.
Distinction from Self-Endangerment
There is generally no obligation to render assistance if the attempt would create a significant personal risk, such as collapse danger, fire, or an attack by an armed individual.
Borderline Cases and Legal Uncertainties
Leaving the Scene of an Accident
Not everyone who learns of a disaster is obliged to help. The decisive factor is whether the person was actually able and present at the scene to effectively help.
Reasonableness and Own Risk
The boundaries of what is reasonable are often a focal point in case law. The standard is whether significant personal risk is to be expected or other particular circumstances make assistance objectively unreasonable.
Assistance by Third Parties
If qualified assistance is already ensured by other means (e.g. by medical personnel already present), criminal liability is excluded.
International Legal Situation and Comparable Provisions
European Union
In many European countries, the obligation to render assistance is similarly regulated, such as in France (Article 223-6 Code pénal) or Italy (Art. 593 Codice penale). There are differences in penalties and the details of what is deemed reasonable.
Global Perspective
In Anglo-American law, there is generally no explicit criminal liability for failure to render assistance unless a specific duty of care exists (e.g. parents toward children). Here, individuals are given a greater degree of freedom to decide.
Civil Law Aspects and Liability Issues
Liability of the Helper
If damage is inadvertently caused while rendering assistance, civil law liability privileges (§ 680 BGB) apply, granting the acting person certain protection against liability as long as there is no gross negligence or intent.
Insurance Coverage
Many insurance contracts (e.g. liability insurance) explicitly include damages resulting from acts of assistance within the scope of insurance coverage.
Literature and Further Information
- Criminal Code (StGB), in particular § 323c StGB
- Commentary on § 323c StGB in MüKo-StGB, Fischer StGB, Schönke/Schröder StGB
- Federal Centre for Health Education: First Aid – Rights and Duties
- BGH, Judgment of 6 September 1972 – 2 StR 371/72
Conclusion: Failure to render assistance is a fundamental provision of German criminal law, enshrining the societal mandate to help in emergencies. It covers the deliberate omission of required help in cases of acute danger and serves to protect fundamental legal interests such as life and health. The criminal assessment always takes into account reasonableness, self-endangerment, and the feasibility of effective assistance. Differences and similarities with comparable international rules highlight the importance of the principle of solidarity in modern legal systems.
Frequently Asked Questions
What conditions must be met for criminal liability for failure to render assistance (§ 323c StGB)?
For criminal liability under § 323c StGB for failure to render assistance, several conditions must be cumulatively met. First, there must be a so-called emergency, common danger, or distress; this applies if there is a situation in which there are substantial dangers to a person or the general public (e.g. traffic accident, fire, unconsciousness). The assisting person must also have the ability to help without significant personal risk and without violating other important duties. The help must therefore be both reasonable and possible. Furthermore, there must be an objective expectation that the help could avert or mitigate the danger. Finally, intent is required: The perpetrator must recognize the emergency and still intentionally fail to assist. Negligent omissions are not included. It is not necessary for the perpetrator to be partially responsible for the emergency; it is sufficient that there was an opportunity to help and that this was wrongfully omitted.
How does the failure to render assistance relate to other offenses such as negligent homicide or bodily harm?
Failure to render assistance under § 323c StGB is generally an independent offense; however, it may coincide with other offenses. For example, if a health injury or death results causally from a wrongful omission, criminal liability for negligent bodily harm (§ 229 StGB) or negligent manslaughter (§ 222 StGB) may arise in addition to § 323c StGB. In such cases, the omission can even create a guarantor situation (especially for persons with a duty of care), so that perpetration by omission under § 13 StGB may apply. In these constellations, liability under § 323c StGB is often superseded by the more serious offense (competition of statutes), serving as a catch-all provision. If only failure to render assistance without further consequences is at issue, the sanction of § 323c StGB applies.
Who is obliged to assist and are there exceptions?
In principle, anyone who witnesses an emergency situation within the meaning of § 323c StGB is required to provide assistance within the limits of what is reasonable for them. It does not matter whether there is a special professional or personal relationship with the person in need. However, there are exceptions to the duty to assist. Assistance must only be provided if it is possible and reasonable for the individual. Assistance is not required if it involves a substantial personal risk—this includes serious risks to life and limb of the helper or significant danger to third parties. Moreover, the duty to assist does not apply if intervening would mean neglecting other important obligations (e.g. caring for a child). Rendering optimal assistance is not necessary; reasonable and possible help (such as calling emergency services) is sufficient.
What legal consequences arise from violating the duty to assist?
A violation of the duty to assist under § 323c StGB is punishable by imprisonment of up to one year or a fine. It is a misdemeanor, and attempt is not punishable. The penalty can vary at the court’s discretion depending on the degree of fault, the specific circumstances of the offense, and the resulting damage. In addition, civil law claims can arise, such as compensation for damages or pain and suffering, if the failure to render assistance caused harm. Depending on the case, professional sanctions may also apply, especially for members of healthcare professions.
How is it determined whether assistance was reasonable and possible?
The evaluation of whether assistance was reasonable and possible depends on both objective and subjective criteria. What matters is whether, according to their personal abilities and knowledge, the potential helper was able to render aid in the specific situation without exposing themselves to substantial danger or neglecting important duties. The interests of the offender are also considered: For example, a non-swimmer is not required to attempt a rescue in dangerous waters, whereas a trained lifeguard may be expected to do more. Personal overwhelm or shock reactions can also be taken into account; nonetheless, general forms of help, such as calling emergency services, are usually always required.
What role does causality between the omission and the occurrence of harm play?
Unlike other omission offenses, § 323c StGB does not require a causal link between the failure to render assistance and a specific harm (e.g. death or injury). For criminal liability under § 323c StGB, it is sufficient that assistance was possible, this was omitted, and there was a general duty to intervene. The actual consequences of the omission are irrelevant; the existence of a risk situation suffices. However, if tangible harm actually results from the omission, additional offenses may apply.
Is it possible to be held criminally liable for failure to render assistance when there are several helpers present?
The offense of failure to render assistance is generally subsidiary; that is, if adequate assistance is already being provided by others, there is no requirement to intervene again personally. The obligation lapses if the person in need is already being properly cared for or if other competent help—such as a paramedic or the police—has been called and it is certain that they will arrive soon. An ‘excess of helpers’ is not required of the individual. However, in each case it must be assessed whether sufficient help is already present or further action is needed; in case of doubt, hesitation or total omission can still be punishable, especially when all present rely on others (so-called diffusion of responsibility).
