Corona Ignorers – Only Annoying or Already Punishable? A Consideration of §§ 178, 179 Austrian Criminal Code (Endangering People by Infectious Diseases)

Abstract

The Corona pandemic, which has dominated everyday life since the beginning of 2020, has brought Sections 178 and 179 of the Austrian Criminal Code (StGB) into the focus of criminal law discussion. They criminalize endangering other people through certain diseases: The perpetrator can be punished if he or she risks to transfer a disease, of which the presence must be reported to public authorities according to the law, to at least about ten other persons. Not least because these offenses have not had particular practical relevance up to date, several dogmatic questions remain unresolved, to which this paper provides an answer. These include, in particular, the extent to which a behavior must be dangerous for the health of others to lead to a criminal liability, how to deal with a lack of dangerousness that is determined ex post, and whether and under what conditions criminal liability by omission can exist. The proposed solutions are examined for their practical suitability based on typical “Corona cases” such as visiting so-called “Corona parties”, ignoring a segregation duty or concealing contacts during contact tracing. To answer the unresolved dogmatic questions, it is first necessary to present the relevant literature and second to interpret the criminal law provisions according to the recognized interpretation methods (especially systematic interpretation and historical will of the legislator). This will lead to new solutions that partially differ from the prevailing opinion.