OLG Linz: No culpability as per Sec. 178 StGB in case of low viral load

Jun 16, 2021 Benn-Ibler Rechtsanwälte

The Linz Higher Regional Court (Oberlandesgericht Linz, OLG Linz) has ruled that the mere failure to comply with a quarantine order ("quarantine breach") is not in itself sufficient for criminal liability under Sec. 178 of the Criminal Code (Strafgesetzbuch, StGB).

In the case at hand, the accused, who had tested positive for the coronavirus, was staying in a district headquarters, where nine people were present at the time, despite the fact that he was still under an order to quarantine. Two days later, his quarantine order was lifted.

The public prosecutor's office then initiated proceedings for Sec. 178 StGB (danger of spreading a communicable disease that is subject to notification and reporting). The court of first instance dismissed the prosecution's criminal complaint because it was not yet possible to conclusively assess whether the defendant's action was capable of causing a danger of spreading COVID-19 due to the close temporal connection with the lifting of the quarantine and the offence.

The OLG dismissed the complaint of the public prosecutor's office:

An abstract potential danger of spreading is sufficient for criminal liability under Sec. 178 StGB. Neither does a person have to be concretely infected, nor does the concrete danger of infection of a person need to have been caused. With regard to the danger to the health of others, a quarantine order has an indicative function. If a mandatory quarantine is broken, the required danger is generally affirmed.

However, it also depends on the actual risk of infection posed by the infected person. The legislator assumes that a person who tests positive with a CT value greater than 30 is no longer at risk of infection. It follows that not every infection is associated with a potential risk of infection for others.

The OLG therefore pronounced that a medical expert opinion must be obtained prior to an indictment in order to assess whether there was (still) a potential risk of infection by the accused on the day of the offence.

OLG Linz 7 Bs 47/21i (22.04.2021)