Definition
The crime of manslaughter by negligence is stated in Article 85 of the Turkish Penal Code, under the second part titled “Crimes Against Persons,” in the first section titled “Crimes Against Life.”
Article 85 – A person who causes the death of another person through negligence shall be sentenced to imprisonment from two to six years.
If the act results in the death of more than one person, or in the death of one or more persons along with the injury of one or more persons, the person shall be sentenced to imprisonment from two to fifteen years.
Negligence is addressed in Article 22 of the Turkish Penal Code:
Article 22 – Acts committed by negligence shall be punished in cases explicitly stated by the law.
Negligence refers to the commission of an act without foreseeing the consequences outlined in the legal definition of the crime due to a breach of the duty of care and attention.
If a person does not intend the result but the result occurs, there is conscious negligence; in this case, the punishment for the negligent crime may be increased by one-third to one-half.
The punishment for a crime committed through negligence is determined based on the offender’s fault.
In crimes committed by negligence by more than one person, each person is responsible for their own fault. The punishment for each offender is determined separately based on their degree of fault.
If the result caused by the negligent act leads to the victim’s condition being such that further punishment is unnecessary due to their personal and family situation, no punishment is imposed; in the case of conscious negligence, the punishment may be reduced by a factor of one-sixth to one-half.
Is the Crime of Manslaughter by Negligence Subject to Complaint and Reconciliation?
The crime of manslaughter by negligence is not subject to complaint. It can be investigated and prosecuted ex officio. Even if the complaint is withdrawn, the public prosecution continues. Additionally, the crime of manslaughter by negligence is NOT among the crimes subject to reconciliation.
The Simple Form of the Crime
According to Article 85/1 of the Turkish Penal Code:
“Anyone who causes the death of a person by negligence shall be punished with imprisonment for a term of not less than two years and not more than six years.”
Aggravating Circumstances
According to Article 85/2 of the Turkish Penal Code:
“If the act causes the death of more than one person, or the death of one or more persons together with the injury of one or more persons, the person shall be punished with imprisonment for a term of not less than two years and not more than fifteen years.”
Mitigating Circumstances
According to Article 22, Paragraph 6 of the Turkish Penal Code:
“If the result caused by the negligent act leads to a level of victimization that makes the imposition of a penalty unnecessary, specifically considering the perpetrator’s personal and family situation, no punishment shall be imposed; in cases of conscious negligence, the penalty may be reduced to between one-sixth and one-half.”
Effective Remorse
According to the principle of legality, effective remorse can only be applied to the types of crimes specifically regulated. The provisions for effective remorse related to the crime of negligent manslaughter are not included in the Turkish Penal Code. Therefore, effective remorse provisions will not apply to this type of crime.
Attempt
Attempt is when the perpetrator starts actions that are suitable for committing the crime but is unable to complete the crime due to reasons beyond their control. Therefore, attempt is only possible in crimes that can be committed intentionally. The crime of negligent manslaughter is NOT subject to attempt.
The Crime of Negligent Manslaughter Resulting from a Workplace Accident
In cases of negligent manslaughter resulting from a workplace accident, Article 85 of the Turkish Penal Code (TCK) is also applicable. The violation of occupational health and safety regulations by the employer is considered a negligent act of the employer under criminal law. For the employer to be held responsible for negligent manslaughter, they must have failed to fulfill their duty of care and not taken the necessary precautions. However, if the employer takes precautions but an accident that could have been anticipated still occurs, the employer will be held responsible for conscious negligence.
Negligent Manslaughter Resulting from a Traffic Accident
If a death occurs as a result of a traffic accident, the offender may be held liable for negligence. If the offender adhered to traffic rules and the accident occurred in this manner, unconscious negligence will be applicable. In cases of death resulting from a traffic accident, both material and immaterial compensation may be applicable. The penalty should be determined based on the specific circumstances of the case.
The Execution Regime for the Crime of Negligent Manslaughter
As stated in Article 85 of the Turkish Penal Code, if the crime of negligent manslaughter is committed, the offender will be sentenced to imprisonment. According to Article 50 of the Turkish Penal Code:
“Even if the prison sentence for negligent crimes is long-term, this sentence, under the condition of the existence of other circumstances, may be converted into a judicial fine according to paragraph (a) of the first section. However, this provision does not apply in cases of conscious negligence.”
For a decision to defer the announcement of the judgment, the following conditions must be met:
a) The defendant must not have been previously convicted of an intentional crime.
b) The court must be convinced, considering the defendant’s personality traits and behavior during the trial, that the defendant will not commit another crime.
c) The damage caused to the victim or the public by the commission of the crime must be fully compensated by restitution, restoration to the previous state, or compensation.
d) The defendant must accept the deferral of the announcement of the judgment.
In order for a deferred sentence (HAGB) decision to be made, the imposed sentence must be a prison sentence of 2 years or less. In the case of negligent manslaughter, if the sentence is 2 years or less, the deferral of the announcement of the judgment (HAGB) can be applied. However, if the victim has suffered any material damage, this damage must be compensated.
During the trial, a person sentenced to 2 years or less of imprisonment for the crime committed can have their sentence postponed (Turkish Penal Code, Article 51). The upper limit for this period is three years for individuals who were under the age of 18 or over the age of 65 at the time of committing the act.
In order for a postponement decision to be made, the person must:
- The person must not have been sentenced to more than three months of imprisonment for an intentional crime previously.
- Additionally, there must be a conviction in court that, due to the remorse shown during the trial process after committing the crime, the person will not commit another crime.
Relevant Court of Cassation Decisions
In the present case, the fault report that formed the basis of the decision attributes 80% fault to the defendant employer and 10% fault to the insured worker, with 10% inevitability being accepted in the occurrence of the work accident. On the other hand, the report issued by the Institution on 13.04.2016 found the defendant employer 90% at fault and the insured worker 10% at fault in the occurrence of the work accident.
In the concrete case, the fault report on which the court based its decision, which mentioned that cracks and fractures that are difficult to observe in marble blocks may occasionally occur, was not deemed correct in giving 10% inevitability. Furthermore, as explained above, the fault rates of the individuals who were attributed fault in the finalized criminal file were not examined, and the contradictions in all three reports were not taken into consideration, which was found to be inappropriate. It was concluded that relying on the expert report, which did not comply with the specified principles and procedures, and based the judgment on incomplete examination and erroneous evaluation, was incorrect and requires reversal.
In accordance with the 4th paragraph of Article 7 of the Occupational Health and Safety Services Regulation, which states that findings and recommendations written in the approved book are considered to have been notified to the employer, and given the testimony indicating that the machine in question had been malfunctioning for a long time and was continued to be used without maintenance or repair, it was accepted that conditions for conscious negligence had occurred in the case.
Accordingly, the rules that were violated, the recommendations of experts and physicians, expert reports, and the manner in which the accident occurred will be examined to determine whether conscious negligence occurred. In inspections, it will be noted that the necessary security measures should have been taken and that the workers should have been ensured to comply with instructions. Despite the identification of deficiencies and irregularities, necessary warnings were made, but the employers continued activities without taking the required safety measures. It was stated that the conditions for conscious negligence existed for the defendants in the incident, as they did not provide occupational health and safety training to the workers or prepare work and operation instructions related to the tasks they performed.
Therefore, the decision of the Regional Court of Appeals 9th Civil Chamber rejecting the appeal should be annulled, and the judgment given by the First Instance Court should be overturned.” (Court of Cassation 10th Civil Chamber 2020/2800, Decision 2021/6961)
“In the case where the defendants …, …, and … were attempting to take the weapon from the other defendant …, who was aiming the weapon towards their side to shoot, and during the struggle, the bullet fired from the weapon hit an unrelated customer shopping in the opposite market, the defendants were not attributed any fault, and the opinion suggesting annulment in the notification was not accepted.”
At the conclusion of the trial, the court accepted and determined, based on the reasons provided, that the defendants …, …, and … were not negligent regarding the charge laid against them. However, for defendant …, in accordance with the trial, the evidence collected and presented during the trial, and the court’s opinion and assessment based on the results of the prosecution, it was concluded that the defense attorney’s claims of negligence, the elements of the crime not being present, the severity of the punishment, the state of necessity, and conscious negligence, as well as the public prosecutor’s stance on conscious negligence, were not valid. The appeal objections by the plaintiff’s attorney, which lacked valid grounds, were rejected, and the acquittal of defendants …, …, and … and the conviction of defendant … were UPHELD. A unanimous decision was made on 25.02.2015.” (Court of Cassation 12th Criminal Chamber 2015/916 E., 2015/3491 K.)
“Regarding the defendant’s conviction for negligent homicide and acquittal for failure to fulfill the duty to provide assistance, the defense attorney and the plaintiff’s representative appealed, and after reviewing the file, the necessary decision was made:
At the conclusion of the trial, the court accepted and determined, with reasons provided, that the defendant did not have intent regarding the crime of failing to fulfill the duty of assistance.
As for the crime of negligent homicide, based on the trial, the evidence gathered and presented at the decision stage, and the court’s opinion and assessment in accordance with the results of the prosecution, and in line with the scope of the examined file, the defense attorney’s arguments regarding negligence, the amount of the sentence, and the need to grant attorney fees for the acquitted crime; the plaintiff’s representative’s objections, stating that the defendant was given a light sentence and that the crime of failure to provide assistance was committed, were rejected. Therefore, the acquittal and conviction decisions regarding the defendant were UPHELD as requested. A unanimous decision was made on 08/12/2014.” (Court of Cassation 12th Criminal Chamber 2013/25911 E., 2014/24850 K.)
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