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On the legal consequences of a brawl

Injuries resulting from brawls may entail serious legal consequences, under both penal and civil law.

From the perspective of penal law:

Brawls are regulated in the Austrian Penal Code (StGB) under Sec. 91 StGB through the circumstance of an offence of affray in conjunction with “an individual being attacked by a number of people”. Since brawls usually lead to serious injuries and therefore develop an increased potential risk, actively taking part in a brawl is already punishable if it has led to a serious injury or the death of one of the parties taking part in the brawl. Within the scope of major sporting events, however, just participating in a brawl within the safety zone is sufficient for the culpability of it, and in fact even without anybody being injured.

A serious bodily injury is defined as involving over 24 days’ ongoing damage to health or incapacity for work as a result of it.

Curiously looking on or spurring the fighting parties on does not constitute “involvement as a perpetrator from a legal perspective”. A party who endeavours to arbitrate the dispute or help an injured party is not considered a participant in the brawl either. Those persons, on the other hand, who prevent other people from separating the fighters do in fact very much take part in the brawl as perpetrators from a legal perspective. The fact that already merely taking part in a brawl has been declared liable to prosecution is supposed to, in accordance with the meaning and purpose of the law, counteract the difficulties that occur in providing evidence after the brawl. A brawl entails at least three people having an argument and, in the process, becoming violent.

In regard to the culpability of the participant, it is irrelevant whether the serious injury was already caused by another fighter prior to his taking part, or only afterwards. What is significant is that the serious injury was caused in the course of the brawl.

Usually the party actually inflicting the serious bodily injury can just not be established. In so far as it is, however, possible, that person will be liable under the more stringent regulations governing criminal offences of bodily injury. Should no agreement be reached about the serious bodily injury between the remaining participants and the actual tortfeasor established, the remaining fighters shall “only” be liable under Sec. 91 StGB, described above.

As a sanction for committing the offence, a prison sentence of up to one year or an administrative fine of up to 720 daily rates is provided for.

From the perspective of civil law:

Not just serious bodily injuries, but any bodily injury that is brought about illegally and culpably leads to claims for compensation for damage arising under civil law. As already mentioned, it often, in practice, constitutes a particular problem to prove which fighter specifically caused the bodily injury. It is, however, essentially the case that the participants in the affray are jointly and severally liable for any damage incurred, not only bodily injuries, but also any damage to property that has been incurred in the course of the brawl. In other words, every fighter is liable for the full amount of the loss.

A particular legal problem arises if it can no longer be established whether all the participants in the brawl did at all also actually cause the damage. However, should those individuals act culpably and specifically dangerously, this results in joint and several liability. All these criteria are doubtlessly implemented by a brawl. In addition, the Austrian Supreme Court (OGH) essentially assumes joint and several liability (along the lines of Secs. 1302, 1304 Austrian Civil Code) if it cannot be ascertained which act is the cause of the damage (1 Ob 21/90; 1 Ob 40/83).

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