Legal Definition of the Crime
The crime of failing to report a crime is regulated under Article 278 of the Turkish Penal Code (TCK), under the heading “Crimes Against the Judiciary.” The relevant provisions of the law state:
TCK Article 278:
(1) A person who fails to report a crime that is being committed to the competent authorities shall be punished with imprisonment of up to one year.
(2) A person who fails to report a crime that has been committed, but whose resulting consequences can still be mitigated, shall be punished in accordance with the provision of the previous paragraph.
(3) If the victim is a child under fifteen, physically or mentally disabled, or unable to defend themselves due to pregnancy, the penalty to be imposed under the above paragraphs shall be increased by one-half.
(4) No penalty shall be imposed on persons who are entitled to abstain from testifying. However, provisions concerning criminal liability arising from the obligation to prevent the crime are reserved.
Accordingly, the failure to report a crime that is being committed or has been committed, but whose consequences can still be mitigated, is regulated as a crime. For the crime to be constituted, one of the two alternative actions must be performed:
1- Failure to Report a Crime Being Committed: For this alternative act to constitute a crime, there must first be a crime in progress. The obligation to report arises only if the crime is actually being committed. The term “crime being committed” refers to the perpetrator having initiated the execution of criminal acts. Mere intent or preparatory actions are not sufficient to trigger this obligation. For example, learning that a person has purchased a knife or a firearm while planning to kill someone in the future does not create a reporting obligation, as the perpetrator is still in the preparatory stage. However, if the perpetrator targets someone with the purchased weapon or attempts to fire it, this indicates that the crime is in progress and triggers the duty to report.
2- Failure to Report a Crime That Has Been Committed but Whose Consequences Can Still Be Mitigated: The crime regulated under Article 278 of the TCK is not limited to the failure to report crimes in progress. Even if the crime has already been committed, the crime may still occur in cases where the consequences have not fully materialized and can still be mitigated. In such situations, although the crime is completed, the danger or harm caused by the crime has not yet ended. The intervention of a third party or reporting the situation to the competent authorities can reduce or completely prevent the harm or danger. If this possibility exists, a person who learns of the crime but fails to report it to the competent authorities also constitutes the crime of failure to report under Article 278 of the TCK.
Elements of the Crime
When evaluated together with its objective and subjective elements, the crime of failing to report a crime has the following fundamental components:
1-Perpetrator: The relevant legal provision does not require any special condition regarding the perpetrator of the crime; anyone can be the perpetrator. However, it should be noted that no one is obliged to report a crime they themselves committed or participated in. Therefore, the perpetrator of the crime or their accomplice cannot be considered the perpetrator of the crime regulated under Article 278 of the TCK.
2-Victim: In this crime, the victim is the society as a whole.
3-Act (Conduct Element): Under Article 278 of the TCK, the act element is the failure to report a crime that is being committed or has been committed but whose consequences can still be mitigated to the competent authorities.
4-Legal Good Protected by the Crime: The crime of failing to report a crime is regulated under the heading “Crimes Against the Judiciary,” and the legal interest protected by this crime is the maintenance of order in judicial proceedings and social solidarity.
5-Mental Element: The crime can only be committed intentionally, meaning the perpetrator must be aware that a crime is being committed or has been committed but the consequences can still be mitigated. It is legally impossible for this crime to be committed through negligence.
Aggravated Circumstances of the Crime
Under Article 278/3 of the TCK, the failure to report a crime committed against persons in a more vulnerable position is subject to harsher criminal penalties. The relevant legal provision states:
“If the victim is a child under fifteen years of age, physically or mentally disabled, or unable to defend themselves due to pregnancy, the penalty to be imposed under the above paragraphs shall be increased by one-half.”
Thus, in cases where the crime is committed against individuals who cannot defend themselves due to age, mental condition, or pregnancy, the penalty is increased by 50%.
Right to Abstain from Testifying
Under Article 278 of the TCK, the perpetrator of this crime can be anyone. However, certain persons are legally granted the right to abstain from testifying, and no criminal liability is imposed on them. (CMK Article 45)
Criminal Procedure Code (CMK) Article 45:
The following persons may abstain from testifying:
a) The fiancé of the suspect or defendant.
b) The spouse of the suspect or defendant, even if the marital bond no longer exists.
c) The ascendants or descendants of the suspect or defendant, whether by blood or marriage.
d) The relatives of the suspect or defendant within the third degree by blood or second degree by marriage.
e) Persons who have an adoptive relationship with the suspect or defendant.
(2) Persons who, due to minor age, mental illness, or mental weakness, are unable to understand the significance of abstaining from testifying may be heard as witnesses with the consent of their legal representatives. If the legal representative is the suspect or defendant, they cannot decide on the person’s right to abstain.
(3) Persons entitled to abstain from testifying must be informed of this right before being heard. These persons may exercise this right at any time during their testimony.
The right to abstain from testifying, as regulated under Article 45 of the Criminal Procedure Code (CMK), allows a person called as a witness in the situations specified by law to refuse to testify. Persons who have the right to abstain from testifying do not have an obligation to report the crime under Article 278 of the TCK. (TCK Article 278/4)
Failure of a Public Official to Report a Crime
Public officials are obliged to report to the competent authorities without delay if they learn that a crime has been committed in the course of their duties. Failure to fulfill this obligation constitutes a separate crime and is specifically regulated under Article 279 of the Turkish Penal Code (TCK).
TCK Article 279:
1-If the crime is committed by a person performing judicial law enforcement duties, the penalty to be imposed under the above paragraph shall be increased by one-half.
2-A public official who, in connection with their duty, learns that a crime requiring investigation and prosecution on behalf of the public has been committed but fails to report it to the competent authorities or delays in doing so, shall be punished with imprisonment from six months to two years.
Failure of Healthcare Professionals to Report a Crime
Article 280 of the Turkish Penal Code (TCK) regulates the obligation of healthcare professionals to report a crime if they encounter one during the course of their professional activities. Due to the nature of their duties, healthcare workers may have access to important information or evidence related to certain crimes. Therefore, healthcare personnel are also assigned special responsibility in combating crime.
TCK Article 280:
- A healthcare professional who, while performing their duties, encounters signs of a committed crime but fails to report it to the competent authorities or delays in doing so, shall be punished with imprisonment of up to one year.
- The term “healthcare professional” includes physicians, dentists, pharmacists, midwives, nurses, and other persons providing health services.
An examination of the relevant legal provision shows that even in the absence of definitive proof of a crime, the presence of indicative signs imposes a reporting obligation on healthcare workers. Similarly, the second paragraph clarifies which professional groups are considered healthcare professionals, emphasizing that the reporting obligation is not limited to doctors alone.
Complaint Period, Statute of Limitations, and Competent Court
The crime regulated under Article 278 of the TCK is not subject to a complaint, and the investigation is initiated ex officio by the public prosecutor’s office. Although there is no complaint period for the investigation of the crime, the statute of limitations for prosecution is 8 years, starting from the date the crime was committed. The competent court for trying this crime is the Criminal Court of First Instance (Asliye Ceza Mahkemesi).
Postponement and Suspension of the Pronouncement of the Judgment
Under Article 278 of the TCK, a person who fails to report a crime that is being committed or has been committed but whose consequences can still be mitigated to the competent authorities shall be punished with imprisonment of up to one year.
Considering the minimum and maximum limits of the penalty, it is possible to:
Suspend the execution of the sentence.
Convert the prison sentence into a judicial fine,
Postpone the pronouncement of the judgment, or
Relevant Court Decisions
“…For the offense of failure to report a crime regulated under Article 278/1 of the TCK No. 5237 to be established, there must be either the non-reporting of an ongoing crime or the non-reporting of an act that has been committed but whose resulting consequences can still be mitigated. In the concrete dispute, the events occurred when the convicts who killed the victim went to the defendant to obtain tools for burying the victim and gave the money obtained from the crime to the defendant for safekeeping. The court failed to consider that the elements of the offense of failure to report a crime under Article 278 of the TCK were not met, and instead of acquitting the defendant, a conviction was issued. This is contrary to the law. Accordingly, since the appeal of the defendant’s counsel was found justified, the judgment was annulled under Article 321 of the CMUK No. 1412, to be applied pursuant to Article 8/1 of Law No. 5320, and this decision was made unanimously on 09.02.2021.”
(Court of Cassation, 8th Criminal Chamber, 2019/15892 E., 2021/1908 K., 09.02.2021)
“…Regarding the crime of destroying, concealing, or altering evidence, Article 281 of the TCK No. 5237 stipulates: “Anyone who destroys, erases, conceals, alters, or damages evidence of a crime in order to prevent the truth from being revealed shall be punished with imprisonment from six months to five years. No punishment shall be imposed under this paragraph for the crime committed by the person themselves or in which they participated.”
Regarding the failure to report a crime, Article 278 of the TCK No. 5237 provides:
(1) Anyone who fails to report an ongoing crime to the competent authorities shall be punished with imprisonment of up to one year.
(2) Anyone who fails to report a crime that has been committed but whose resulting consequences can still be mitigated shall be punished according to the provision of the above paragraph.
In the decision of the General Assembly of Criminal Chambers of the Court of Cassation dated 09.10.2012 (2012/1-405 E., 2012/1802 K.), it was stated:
“Article 170 of Law No. 5271, which came into force on 1 June 2005, regulates in detail the matters to be indicated in the indictment. Paragraph 4 of the article states that the events constituting the alleged crime must be explained in the indictment. Accordingly, the boundaries of the public prosecution must be clearly defined in terms of the act. Exceeding the boundaries of the act in a public prosecution constitutes a violation of the principle of ‘no trial without a case’ and Article 225 of Law No. 5271. Therefore, the subject of the judgment is the act described in the indictment, not the referral article. Departing from the act described and claimed to constitute a crime in the indictment, that is, conducting a trial for an act not included in the case and issuing a verdict for an unfiled case, is contrary to the law. However, the court is not bound by the classification of the crime in the indictment when qualifying the offense. The prosecution authority, based on the evidence obtained during the investigation, prepares the indictment and determines the boundaries of the trial phase regarding the act and the perpetrator pursuant to Article 225/1 of the Criminal Procedure Code. In this respect, it is sufficient for the indictment to clearly explain the acts constituting the elements of the charged crime, leaving no room for doubt. Thus, the defendant can understand the crime alleged against them without any uncertainty, prepare their defense, and present evidence accordingly.”
In the concrete case, although the defendant knew that the motorcycle brought to the coffeehouse where they worked was stolen and did not report it to the competent authorities, and although the indictment did not specify the crime of failure to report as the referral offense, since the elements of the crime were described in the indictment, the defendant could have been given an additional opportunity to present a defense, and a verdict could have been issued for failure to report the crime. The court’s decision to proceed with a written complaint without considering this was deemed incorrect. Therefore, it was necessary to annul the decision for the benefit of the law. However, given that the defendant was acquitted for the act described in the indictment and the verdict became final, a retrial for the same act cannot be conducted due to the effect of res judicata.”
(Court of Cassation, 16th Criminal Chamber, 2016/442 E., 2016/4652 K., 01.07.2016)
“…Regarding the examination of the convictions of the defendants…… for the crime of failure to report a crime:
The acts attributed to the defendants constitute the crime of failure to report as regulated in Article 278/1 of TCK No. 5237, and considering the upper limits of the prescribed punishments, they are subject to the ordinary statute of limitations of eight years, as stipulated in Article 66/1-e of the same Law. It was understood that the period between the court interrogations of the defendants, conducted on 10.09.2013, and the day of review had elapsed. Accordingly, the convictions are REVERSED pursuant to Article 321 of CMUK No. 1412 in conjunction with Article 8/1 of Law No. 5320. However, since this does not necessitate a retrial, the public prosecutions concerning these crimes against the defendants are considered TIME-BARRED pursuant to Article 322 of the same Law and Article 223/8 of CMK No. 5271. This decision was made unanimously on 29.12.2022.
(Court of Cassation, 9th Criminal Chamber, 2021/6840 E., 2022/12332 K., 29.12.2022)
“…Pursuant to Article 225 of CMK No. 5271, which states, “The judgment shall only be rendered regarding the act and perpetrator specified in the indictment. The court is not bound by the allegations and defenses in the classification of the act,” a trial can only be conducted and a judgment rendered concerning the specific act and perpetrator for which the case has been filed. According to this legal provision, going beyond the act described in the indictment, i.e., conducting a trial regarding an act or incident not included in the case and rendering a judgment for an unfiled case, constitutes a clear violation of the law.
Under this principle, expressed in doctrine as “no trial without a case” and “the limitation of the trial,” a judge can only adjudicate the act and person for which a case has been brought and resolve the concrete dispute presented. In line with these explanations, since the indictment involves a case against the defendant for drug trafficking, and there is no allegation regarding the act of failure to report a crime, and the crime of drug trafficking cannot be transformed into the crime of failure to report, it is understood that there is no case filed in accordance with Article 170 of CMK No. 5271 regarding the crime of failure to report. Therefore, rendering a judgment against the defendant pursuant to Article 278/1 of TCK No. 5237 is contrary to the law. The prosecutor’s appeal is thus upheld, and the judgment is REVERSED in accordance with the notification.
(Court of Cassation, 10th Criminal Chamber, 2021/11033 E., 2025/5653 K., 15.05.2025)
“…3- Considering that Article 278/1 of TCK No. 5237 regulates the crime of failure to report a crime and that Article 278/4 provides that no penalty shall be imposed on persons entitled to abstain from testifying; since the children involved in the crime, … and …, are siblings, a decision should have been made that no penalty is to be imposed on the child involved in the crime pursuant to Articles 45/1-d and 223/4-(a) of CMK No. 5271. The decision to convict them in writing constitutes grounds for reversal. As the appeal grounds of the defense counsel for the child involved in the crime, …, were found to be valid in this regard, the judgment is hereby REVERSED for the reasons stated in accordance with the notification.” (Court of Cassation, 17th Criminal Chamber, 2019/1907 E., 2019/3170 K., 05.03.2019)
“…Regarding the acquittal of the defendant Ş.. Y.. for the crime of failure to report a crime and the conviction of the defendant Y.. Y.. for involuntary manslaughter, both appealed by the defense counsel of Y.. Y.. and the representative of the complainant, the file was examined and the following was considered: Upon reviewing the appeal against the acquittal of Ş.. Y.., it is understood that the crime of failure to report, being a crime against the judiciary, protects a legal interest such that the spouse of the deceased, who has not suffered direct harm from the crime and therefore has no right to participate in the case, cannot derive any legal value or appeal rights from the decision allowing participation. Consequently, the appeal filed by the complainant’s representative regarding this crime is REJECTED contrary to the request, pursuant to Article 8 of Law No. 5320 and Article 317 of CMUK No. 1412, currently in force.” (Court of Cassation, 12th Criminal Chamber, 2015/3313 E., 2016/1645 K., 09.02.2016)
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
