The crime of negligent homicide is regulated in Article 85 of the Turkish Penal Code (TCK). The article states:
“(1) A person who causes the death of another person by negligence shall be sentenced to imprisonment for a term of two to six years. (2) If the act results in the death of more than one person or causes the death of one or more persons along with injury to one or more persons, the person shall be sentenced to imprisonment for a term of two to fifteen years.”
Negligent homicide is the crime with the widest range of penalties in the Turkish Penal Code. The number of deceased individuals and factors such as the degree of fault will determine the sentencing, deviating from the lower limit.
Negligence is the failure to foresee the result specified in the legal definition of the offense due to a violation of the duty of care and caution (TCK 22/2).
The elements of negligence are as follows: it must be a crime that can be committed through negligence, the act must be done willingly, the consequence must not be intentional, the consequence must be foreseeable, and there must be a causal relationship.
- The imposition of criminal sanctions on individuals for negligent acts depends on explicit regulations in the law. If there is no clear provision stating that negligent conduct leads to punishment for the resulting consequence, the perpetrator cannot be held responsible for their actions. This is stated in Article 22/1 of the TCK.
- To hold the perpetrator responsible for the harmful consequence, the act must be intentional. In cases of negligent acts, there is no intention towards the outcome. Intention only concerns the act itself and does not encompass the consequence. The intention of the act refers to being aware of and desiring the act. While intentional crimes involve foreseeing and intending both the act and the consequence, negligent crimes only encompass the act.
- To speak of a violation of the duty of care and caution, individuals must first be assigned the duty to act in accordance with specific rules and to behave with care and attention in certain situations. If they act contrary to these duties, they will be held responsible.
Negligence refers to the failure to show the care that should have been provided through positive action. If it can be said that if the person had performed the positive action, the harmful consequence such as death or injury would not have occurred, then negligence is involved. Recklessness, on the other hand, refers to the failure to take the necessary precautions to prevent a harmful consequence from happening. For example, if a mother falls asleep while breastfeeding her baby and accidentally suffocates the baby by lying on top of them, the perpetrator is held responsible for their negligent behavior because they did not take the necessary precautions to prevent the harmful consequence of the baby’s death.
- Although the person does not desire the consequence due to their actions, they may foresee that such a harmful consequence could occur as a result of their actions. This refers to the foreseeable consequence, not the predicted one. Foreseeability means taking into account, predicting, considering, or imagining the event that could happen as a result of the action. The person’s experience, age, education, knowledge, cultural level, and social status will be considered to determine whether they could foresee this consequence.
- The consequence is the change that occurs in the external world as a result of the person’s actions. The fact that the consequence is not desired is the criterion that distinguishes negligence from intent. If the person desires the result, then it would be intent, not negligence. In cases of negligent crimes, the person can only be held responsible for the harmful consequence if the consequence actually occurs. Since attempted negligence is not possible, the person cannot be held responsible if the consequence does not occur.
- The causal link betweenthe consequence and the person’s actions is a necessary element not only in cases of negligent crimes but in all types of crimes. If it can be said, “If the action had not been taken, the consequence would not have occurred,” then it can be considered that there is a causal link. In order to hold the perpetrator responsible due to a negligent act, it is not sufficient to establish the existence of a cause-effect relationship alone. The consequence arising from the cause-effect relationship must also be objectively attributable to the perpetrator. In other words, the consequence must be the result of the person’s actions and not a coincidence, the intervention of a third party, or force majeure.
In cases where the actions of the victim or a third party also have an influence on the occurrence of the consequence alongside the negligent act, it may be necessary to determine whether the causal link is broken or to identify the primary factor that led to the harmful consequence.
In criminal law, negligence is divided into conscious and unconscious negligence. Conscious negligence is referred to when the consequence is foreseen but not intended. In cases of conscious negligence, negligence, carelessness, and lack of caution on the part of the perpetrator are more serious and grave. For example, if a driver foresees the possibility of hitting someone while driving at high speed but believes that they can prevent the potential harmful consequence due to their skill, and ends up hitting a person…
Article 22/… of the Turkish Penal Code states:
“If the consequence is foreseen by the perpetrator but not intended, it is referred to as conscious negligence; in such cases, the penalty for the offense of negligence shall be increased by one-third to one-half.”
The similarity between possible intent (dolus eventualis) and conscious negligence is that in both cases, the perpetrator foresees the consequence. However, in possible intent, the perpetrator regards the possibility of the consequence as a risk, while in conscious negligence, the consequence is not desired, and the risk is rejected by the perpetrator. In cases of conscious negligence, the negligence, carelessness, and lack of caution on the part of the perpetrator are more severe and serious. For example, if a driver foresees the possibility of hitting someone while driving at high speed but believes that they can prevent the potential harmful consequence due to their skill, and ends up hitting a person..
FATAL WORK ACCIDENTS
Workplace accidents that endanger the physical integrity of individuals, which are frequently encountered in our country, emerge as an issue that concerns different branches of law and requires a fair and speedy resolution. In the aftermath of such accidents, it is necessary to compensate the victimized party and hold the responsible parties accountable both legally and criminally. A work accident can result in injury or death and can occur due to the negligence of multiple individuals in the same place and time.
Work accidents are also defined in our legislation. According to Article 3/1-g of Law No. 6331 on Occupational Health and Safety, a work accident is defined as an event that occurs during the execution of work or at the workplace and causes the physical integrity of an individual to be mentally or physically disabled or leads to death. Similarly, certain elements of a work accident are specified in Article 13/1 of Law No. 5510 on Social Security and General Health Insurance.
Determining the perpetrator in work accidents requires a bit more investigation compared to other crimes committed with intent or negligence. Generally, the perpetrator is identified in a certain part of the judicial process after the necessary investigations have been conducted. The perpetrator can be an employee, employer, employer representative (foreman, site manager, supervisor, etc.), subcontractor, or in some cases, a third party, depending on the nature of the work and the rules and obligations that will be determined accordingly.
The determination of the concrete action in work accidents is an important issue. It is not possible to determine who is at fault without knowing how the incident occurred. In cases where it is not clear whether the consequence is caused by the employee, the employer, or those responsible, the principle of “in dubio pro reo” (in doubt, for the accused) should be applied.
Article 22/6 of Law No. 5237, the Turkish Penal Code, states: “If the consequence caused by negligent action has resulted in such a level of victimization for the perpetrator’s personal and family situation that it renders a punishment unnecessary, no penalty shall be imposed; in the case of conscious negligence, the punishment to be given can be reduced by up to one-sixth.”
The rationale of the article states that, especially in rural areas, it has been observed that the perpetrator who committed the crime due to negligent behavior is severely victimized, as well as their immediate family members. For example, it is seen that women living in villages cannot provide sufficient care and attention to their small children, who are often more than three or four, due to their daily chores and the difficulties of life, resulting in injuries and deaths of the children. Similar incidents are also observed in traffic accidents. In such cases, it is stated that the prosecution and punishment of the mother for the negligent act actually intensify the grief and sorrow resulting from the loss of the child and cause the entire family to suffer more severely. According to the provision of this paragraph, the judge can refrain from imposing a penalty by evaluating the perpetrator’s situation.
FATAL TRAFFIC ACCIDENTS
One of the most common incidents where the crime of negligent homicide is encountered is fatal traffic accidents. A person who causes the death of one or more individuals by acting in violation of the rules regulating traffic flow, as stated in the Highways Traffic Law and the Highways Traffic Regulations, will be punished for the crime of negligent homicide, depending on the type of their negligent behavior, whether conscious or unconscious.
According to Article 53/6 of the Turkish Penal Code, if a person is convicted of a negligent crime due to failing to comply with the care and diligence required by traffic regulations or the care and diligence required by a specific art or profession, their driving license may be suspended or they may be prohibited from practicing that art or profession, for a period not exceeding three years but not less than three months.
According to Article 119/2 of Law No. 2918 on Highways Traffic, titled “Revocation and Restoration of Driving Licenses for Committed Crimes,” if a person is convicted of other crimes, the court may temporarily revoke their driving license for a period not exceeding the duration of the sentence.
SANCTIONS
According to the regulation in Article 85/1 of the Turkish Penal Code No. 5237, the perpetrator of the crime is punished with imprisonment for a term of two to six years. If the act results in the death of multiple individuals or causes the death of one or more individuals along with the injury of one or more individuals, the perpetrator is punished with imprisonment for a term of two to fifteen years. According to Article 22/3 of the Turkish Penal Code, if the perpetrator’s negligence reaches the level of conscious negligence, the punishment to be given is increased by up to one-third to one-half.
According to Articles 11 and 12 of Law No. 5235, in the case of the death of one person due to negligence as stated in Article 85/1 of the Turkish Penal Code, the competent court is the Criminal Court of First Instance. In the case of the commission of the crime regulated in Article 85/2 of the Turkish Penal Code, the competent court is the Heavy Penal Court.
In our office located in the İzmit district of Kocaeli province, we provide consultancy and legal representation services in cases of negligent homicide, including traffic accidents resulting in death and fatal occupational accidents, with specialized criminal defense lawyers, as in all criminal cases.