What is the Crime of Healthcare Professionals Failing to Report a Crime?
The failure of healthcare professionals to report a crime is regulated in Article 280 of the Turkish Penal Code, as quoted below:
(1) A healthcare professional who, while performing their duty, encounters an indication that a crime has been committed but fails to report it to the competent authorities or delays in doing so shall be punished with imprisonment of up to one year.
(2) The term “healthcare professional” refers to a physician, dentist, pharmacist, midwife, nurse, and other persons providing health services.
Therefore, the failure of healthcare professionals to report a crime constitutes a negligent offense committed by employees in the healthcare sector when they witness signs of a crime during the performance of their duties but fail to report it or delay reporting it to the authorities.
Penalty for the Crime of Healthcare Professionals Failing to Report a Crime
Within the framework of Article 280, paragraph 1 of the Turkish Penal Code cited above, the penalty for the crime of healthcare professionals failing to report a crime is regulated as imprisonment for up to one year.
Competent and Authorized Court in the Crime of Healthcare Professionals Failing to Report a Crime
In criminal cases concerning the failure of healthcare professionals to report a crime, the competent court is the court of the place where the crime was committed (Article 12 of the Code of Criminal Procedure), while the authorized court is the criminal court of first instance. In this regard, the parties may require a criminal lawyer, such as a criminal lawyer in Antalya, to file and follow up on the relevant case.
Frequently Asked Questions
1. Can a Decision to Postpone the Announcement of the Judgment Be Given in the Crime of Healthcare Professionals Failing to Report a Crime?
The decision to postpone the announcement of the judgment (HAGB) is a ruling that ensures that the sentence imposed on the defendant does not produce legal effects or consequences during the relevant probation period. Accordingly, if the defendant subject to the HAGB decision fulfills certain conditions during the probation period, the imposed sentence is annulled, and the case is dismissed. Based on this, a HAGB decision can also be issued in the crime of healthcare professionals failing to report a crime, provided that all the required conditions are met.
2. Can the Crime of Healthcare Professionals Failing to Report a Crime Be Converted into a Judicial Fine?
A judicial fine is essentially defined as a type of sanction that can be applied either together with a prison sentence imposed for a committed crime or on its own. In addition, a judicial fine can only be imposed if the crime was committed intentionally and the sentence given to the offender is less than one year, meaning a short-term imprisonment exists. Consequently, the crime of healthcare professionals failing to report a crime can be converted into a judicial fine within the discretionary authority of the judge.
3. Is the Crime of Healthcare Professionals Failing to Report a Crime a Complaint-Based Offense?
The crime of healthcare professionals failing to report a crime is not among complaint-based offenses; it is investigated ex officio by the public prosecutor, and therefore, there is no complaint period applicable.
4. Is Reconciliation Possible in the Crime of Healthcare Professionals Failing to Report a Crime?
Reconciliation aims to facilitate communication and agreement between the person accused of a crime and the victim through a mediator. However, the crime of healthcare professionals failing to report a crime is not among the offenses eligible for reconciliation.
Some Supreme Court Decisions Regarding the Crime of Healthcare Professionals Failing to Report a Crime
- “However, 1- Considering that the crime of failure to report a crime can be committed intentionally, and that the defendant, who was not the on-duty doctor but intervened for the victim due to spilled milk while the other doctor was at a ceremony, claimed that he could not report the incident to the authorities because he was not the on-duty doctor and due to workload, and that this defense could not be disproved, issuing a conviction against the defendant based on insufficient reasoning is unlawful. 2- Furthermore; a) Without considering that the obligation of the defendant, who was a physician at the health center, to report a crime learned during the performance of his public duty falls under Article 279 of the Turkish Penal Code, a judgment was made under Article 280 of the same law, b) Given that the defendant had no prior convictions, there was no measurable or determinable (concrete) material damage claimed by the victim to be remedied in the crime of healthcare professionals failing to report a crime, and that the moral damage did not prevent the application of the postponement of the announcement of the judgment, deciding, without examining the conditions in Article 231/5 of the Code of Criminal Procedure, that there was no basis for postponing the announcement of the judgment, is unlawful. As the grounds for appeal by the Public Prosecutor at that location and the opinion in the notification were found valid, the judgment was overturned, and the file was sent to the court of first instance to continue and conclude the trial from the stage prior to the reversal. This decision was made unanimously on 17/12/2012.”** (Supreme Court of Turkey, 4th Criminal Chamber, Decision dated 17.12.2012, Case No. 2012/13441, Decision No. 2012/30482)
- “The file was examined, and the following was considered: Considering that the nature of the injury of the complainant is consistent with the epicrisis form in the file, and that the complainant stated upon hospital admission that he injured himself, contrary to the defendant’s defense claiming that he did not suspect that the complainant could have been accidentally injured by others, it was not taken into account that there was no definitive, convincing, and indisputable evidence to convict the defendant for the alleged crime of encountering an indication of a crime during his duty and failing to report it to the authorities. Therefore, issuing a conviction instead of acquittal is unlawful. Since the defendant’s appeal objections were found justified on this basis, the judgment was overturned for this reason, and the decision was made unanimously on 29/05/2014.” (Supreme Court of Turkey, 9th Criminal Chamber, Decision dated 29.05.2014, Case No. 2013/16509, Decision No. 2014/6524)
- “1- The father of the victim who had a traffic accident brought the victim to the emergency department of … Hospital, where the defendant was employed, complaining that a tractor had run over the victim’s foot. During the examination conducted by the defendant, a general practitioner, tenderness was found in the victim’s right ankle, and the X-ray showed no fractures or dislocations. The victim was prescribed a pain-relief cream and sent home. However, as the victim’s pain increased and he could not bear weight on the foot, the father took him to the orthopedic department of … Hospital on 23/11/2009. Examination by specialist Dr. … revealed no fracture or dislocation, but swelling and edema extending from below the knee to the middle of the leg and foot due to compression, and the victim was hospitalized for observation to prevent circulation problems due to increasing swelling. During follow-up, unexplained decreases in hemoglobin levels were observed, prompting a consultation requested by specialist Dr. … in internal medicine. Additionally, when unexplained vomiting occurred, at the family’s request and for further examination and treatment, the victim was transferred to … Hospital on 25/11/2009, where internal bleeding was diagnosed, and he was admitted. The defendant performed the necessary interventions on the victim and recommended treatment appropriate to the findings observed upon admission. The defendant’s actions were in accordance with medical standards and did not constitute the elements of the crime of negligence in duty. However, a conviction was issued instead of acquittal, which is contrary to the law. Since the appeals by the defendant’s counsel and the local public prosecutor were found justified on this basis, the judgment was overturned in accordance with Article 321 of the Code of Criminal Procedure No. 1412, currently in force pursuant to Article 8 of Law No. 5320, and the decision was made unanimously on 07/05/2015.” (Supreme Court of Turkey, 12th Criminal Chamber, Decision dated 07.05.2015, Case No. 2014/20108, Decision No. 2015/7685)
- “1- The defendant T.. G.., who treated two individuals injured by a knife and who was serving as the on-duty doctor in the emergency department at Esenler Private Y. Polyclinic on the date of the crime, encountered an indication that a crime had been committed during the performance of his duty but failed to report it to the competent authorities. Without considering that this act constitutes the crime of ‘failure of healthcare professionals to report a crime’ regulated under Article 280/1 of the Turkish Penal Code, the court mistakenly applied Article 279/1 of the same law. 2- Regarding the defendant A.. H.., who worked as a medical secretary in the same polyclinic and only performed patient registration, considering that he is not a public official and not a ‘healthcare professional’ as defined in Article 280/2 of the Turkish Penal Code, the court issued a conviction without explaining how the legal elements of the alleged crime were constituted. This is contrary to the law. Since the appeals of defendants T.. G.. and A.. H.. and their defense counsel were found justified, the judgment was overturned, and the file was sent to the court of first instance to continue and conclude the trial from the stage prior to the reversal. This decision was made unanimously on 19/01/2015.”** (Supreme Court of Turkey, 4th Criminal Chamber, Decision dated 19.01.2015, Case No. 2014/8297, Decision No. 2015/1500)
- “According to the file, the complainants … and … … applied to … IVF Center for in vitro fertilization treatment. On 06/06/2017, the embryo transfer procedure was performed to the uterus of the complainant …, and on 22/02/2018, the delivery was carried out by cesarean section. After it was determined that the blood types of the mother and father were 0 Rh+ while the female baby’s blood type was A Rh+, the family contacted the IVF center and were informed by the doctor-defendant … that a DNA test was necessary. The complainant couple conducted a DNA test on their own, and upon learning that the baby was not their biological child, they filed a complaint on 13/03/2018. In this case, the Istanbul Anatolia 38th Criminal Court of First Instance, in its decision dated 31/01/2020, Case No. 2018/487, Decision No. 2020/232, acquitted the defendant … of the crime of changing lineage due to lack of intent. The complainants’ legal representative filed an appeal, and the Istanbul Regional Court of Justice, 18th Criminal Chamber, in its decision dated 11/09/2020, Case No. 2020/4312, Decision No. 2020/3528, rejected the appeal on its merits, making the decision final. Considering this, for the crime of failure to report a crime to be constituted, there must be a fully executed crime. In this context, since the legal elements of the crime of healthcare professionals failing to report a crime were not fulfilled, an acquittal should have been issued. However, instead of accepting this, the objection to the decision to postpone the announcement of the judgment was rejected in writing, which is contrary to the law. Based on the notice content of the Supreme Court Public Prosecutor, filed at the request of the Ministry of Justice for annulment in the interest of the law, this was deemed appropriate. Therefore, the decision of the Istanbul Anatolia 12th High Criminal Court dated 09/07/2020, File No. 2020/919, was overturned pursuant to Article 309 of the Code of Criminal Procedure, and subsequent procedures will be carried out by the court. The file was referred to the Supreme Court Public Prosecutor for transmission to the Ministry of Justice. This decision was made unanimously on 23/03/2022.” (Supreme Court of Turkey, 8th Criminal Chamber, Decision dated 23.03.2022, Case No. 2021/15182, Decision No. 2022/4887)
