Term and Definition of Physical Assault
Ein physical assault is a legally relevant term in criminal law that is used in various German statutes, particularly in the German Criminal Code (StGB). It describes a hostile act directed immediately at a person, which is intended to injure or directly endanger the body or physical integrity of another person.
Legal Definition and Distinction
In German criminal law, the term “physical assault” is not explicitly defined by law. It is typically used in the context of Section 114 StGB (“Physical assault against law enforcement officers”) or Section 113 StGB (“Resistance against law enforcement officers”). Physical assault constitutes a qualified form of attack that goes beyond mere threats or verbal attacks. Its decisive features are immediacy and a focus on the body.
Legal Classification
Requirements for Physical Assault
Certain conditions must be met for an act to qualify as a physical assault:
- Direction Against Another: The act must be deliberately targeted against another natural person.
- Hostile Intent: The action must be performed consciously and deliberately.
- Immediacy: The act must result directly in physical contact, injury, or an immediate endangerment of the physical integrity.
- No Mere Threat: Pure gestures or verbal threats are not sufficient.
Distinction from Related Offenses
Physical assault must be distinguished from the following concepts:
- Bodily harm (§ 223 ff. StGB): While bodily harm necessarily requires a detrimental effect on the victim’s health, a physical assault already suffices with the attempt of such an act, even if no injury occurs.
- Threat (§ 241 StGB): Here, a serious announcement of a future attack is sufficient, but there is no element of physicality.
- Attempt: Physical assault is generally completed as soon as the immediate act is carried out—regardless of whether an actual injury occurs.
Physical Assault in Criminal Law
Physical Assault on Law Enforcement Officers (§ 114 StGB)
The most significant area of application for the term lies in the context of protecting public officials. Section 114 StGB penalizes physical assault on law enforcement officers. Particularly protected are officials, police officers, firefighters, emergency responders, and soldiers of the armed forces during enforcement actions.
Elements of the Offense
A physical assault on law enforcement officers occurs when a person acts physically against an official during the performance of duties. Typical actions include shoving, pushing, hitting, kicking, strangling, throwing objects, or the use of dangerous tools.
Legal Consequences
The prescribed penalty ranges from three months to five years’ imprisonment. Lesser sentences may be imposed in cases of lesser gravity.
Other Areas of Application in the StGB
Apart from the protection of officials, physical assault can also be relevant with respect to other legal interests, such as through Section 224 StGB (grievous bodily harm) and in connection with offenses involving resistance, traffic offenses, or trespassing (§ 123 StGB).
Perpetration, Participation, and Attempt
Perpetration and Participation
A physical assault can be committed jointly by one or several perpetrators (§ 25 StGB). Incitement (§ 26 StGB) or aiding and abetting (§ 27 StGB) to commit a physical assault are also punishable, provided that an immediate physical act against a person occurs.
Attempt and Completion
A physical assault is punishable as an attempt as soon as the immediate act aimed at the victim’s body begins. An actual injury is not required for completion.
Special Aspects in Regulatory Offenses and Civil Law
In the area of regulatory offenses, physical assault is rarely considered an independent offense because the threshold for criminal liability is relatively low. In civil law, a physical assault may trigger liability claims under §§ 823 ff. BGB, for example, for damages or compensation for pain and suffering.
Case Law and Interpretation
Case Law
Courts have high standards for determining the existence of a physical assault. According to the highest court (Federal Court of Justice, BGH), any immediately hostile act directed at another person’s body is sufficient; an actual injury is not necessary.
Examples:
- Shoving and pushing a police officer.
- Throwing objects at a person during an operation.
- Any physical assault which, from the perspective of an objective observer, appears aggressive and directly aimed at physical integrity.
Interpretation by Legal Literature
Interpretation of the term follows the protective purpose of the respective norm. The key distinction is between less intensive forms of use of force and mere threats or insults. Case law relies on an objective standard: the decisive factor is whether the conduct, in the eyes of a third party, must appear to be an immediate physical attack.
Particularities in Less Severe Cases and Sentencing
In sentencing, the intensity of the assault, the extent of the danger, the perpetrator’s motivation, and possible provocation by the victim are factors. Remorse and compensation for damages can also be considered as mitigating circumstances.
Conclusion
The term “physical assault” is a central element of German criminal law and serves to provide particular protection to certain groups of individuals, especially law enforcement officers. A physical assault requires a hostile act immediately aimed at another person’s body and must be distinguished from other offenses such as threat or bodily harm. Its relevance is especially evident in the protection of public interests and the state’s monopoly on the use of force. Consistent penalization aims to protect both individual rights and societal peace.
Frequently Asked Questions
What penalties are imposed for a physical assault on law enforcement officers?
For a physical assault on law enforcement officers, German criminal law (Section 114 StGB) provides for imprisonment of three months to five years. In less severe cases, the court may deviate and impose a lower sentence, but it must not be less than three months. If a physical assault causes serious health damage, a higher penalty may be imposed as aggravating circumstances pursuant to Section 224 or Section 226 StGB. A fine is excluded by law. When determining the sentence, the court particularly considers the intensity of the assault, the degree of violence used, possible consequences of injury, and whether there was intent or negligence. In addition, it examines whether there was active remorse and whether the perpetrator compensated for damages. The law prioritizes the protection of public officials and the functionality of state authority and therefore penalizes such assaults comparatively strictly.
Which persons are protected by the offense of physical assault?
According to Section 114 StGB, the primary persons protected are law enforcement officers such as police officers, correctional officers, and other officials entrusted with enforcement tasks. The protection also extends to emergency responders (e.g., firefighters, emergency doctors, paramedics) when they are attacked while performing their duties. It is important that the attack is directed against the person in the exercise of their official duties or in connection with their professional activities. Private individuals who do not hold official status or are not acting in an official capacity are not covered by this offense. However, other protective provisions, such as bodily harm under Section 223 StGB, may apply.
What role does intent play in a physical assault?
For punishability under Section 114 StGB, intent is generally required. The perpetrator must deliberately and knowingly commit a physical assault against a law enforcement officer or an equivalent person. Conditional intent (accepting the realization of the offense) is also sufficient. If the perpetrator acts only negligently, the offense is not fulfilled. It is not necessary, however, for the perpetrator to be aware that the person attacked is a law enforcement officer, if that person is identifiable as such. Lack of intent, e.g., due to a mistake about the status of the person attacked, may justify exclusion of culpability.
Are there grounds for justification or excuse for a physical assault?
As with other offenses, grounds for justification—particularly self-defense (§ 32 StGB) or necessity (§ 34 StGB)—can justify a physical assault. However, this requires that the act is necessary to avert an unlawful attack or to protect a predominant interest. In practice, self-defense against law enforcement officers is rare, as they usually act lawfully. Grounds for excuse may include psychological exceptional situations (especially §§ 35, 21 StGB), e.g., due to a temporary disturbance or impulse, which may mitigate or exclude guilt. The court examines such circumstances very carefully on a case-by-case basis.
Is there a difference between physical assault and bodily harm?
Yes, physical assault under Section 114 StGB differs from bodily harm under Section 223 StGB, especially in the type of protection and the protected legal interest. While bodily harm is aimed at protecting the victim’s physical integrity, physical assault is primarily intended to ensure the functioning of the state and the performance of official duties by public officials. Physical assault does not require an actual bodily injury but only a hostile act directed immediately at the body. Both offenses can be committed in concurrence, which results in increased penalties.
Is attempted physical assault punishable?
An attempt of a physical assault on law enforcement officers is expressly punishable according to Section 114(3) StGB. This means that a commencement of the act, which objectively initiates the physical assault, can already be prosecuted even if the assault is not completed—for example, if the officer evades in time or the perpetrator fails for other reasons. The punishability of the attempt is intended to have a preventive effect and to ensure the special need for protection of public officials even before a completed assault. The penalty for the attempt can be more lenient than for the completed offense, but the court has discretion according to Section 23(2) StGB.
