Today, one of the most frequently committed crimes within the scope of criminal proceedings is the crime of injury. The crime of injury is regulated under the title “Crimes Against Physical Integrity” in Part 2, Chapter 2 of the Turkish Penal Code. Under the TPC, the crime of injury is divided into two categories: intentional injury and negligent injury. In order to speak of intentional injury, the act constituting the crime must be committed with intent, and the purpose behind the act must fall within the scope of Article 21 of the Turkish Penal Code.
Article 21 – (1) The commission of a crime depends on the existence of intent. Intent is the deliberate and knowing fulfillment of the elements defined in the legal description of the crime.
In order to speak of negligent injury, the act in question must fall within the scope of Article 22 of the Turkish Penal Code.
Article 22 – (1) Acts committed through negligence are punishable only in cases explicitly stated by law.
(2) Negligence is the commission of an act that results in the consequence defined in the legal description of the crime without foreseeing it, due to a breach of the duty of care and attention.
(3) If a person foresees the consequence but does not desire it, and the consequence nevertheless occurs, this constitutes conscious negligence; in such cases, the penalty for the negligent offense is increased by one-third to one-half.
(4) The penalty for an offense committed through negligence is determined according to the degree of fault of the offender.
(5) In offenses committed through the negligence of more than one person, each individual is responsible only for their own fault. The penalty for each offender is determined separately based on their own degree of fault.
(6) If the consequence caused by a negligent act has resulted in such personal and familial suffering for the offender that imposing a penalty would be unnecessary, no penalty shall be imposed; in cases of conscious negligence, the penalty may be reduced from one-half to one-sixth.
The offense of involuntary (negligent) injury is regulated under Article 89 of the Turkish Penal Code (TPC). For an act to be considered as involuntary injury, it must fall within the scope of Article 22 of the TPC—meaning the perpetrator must have failed to comply with the duty of care and attention while committing the act, and must not have foreseen or intended the resulting consequence. If the perpetrator foresees the consequence but does not desire its occurrence, the act constitutes conscious negligence. The act leading to involuntary injury may result either from an act of commission or an act of omission.
Article 89 – (1):
A person who negligently causes another person physical pain, or impairs their health or mental ability, shall be punished by imprisonment for a term of three months to one year or by a judicial fine.
(2) If the act of involuntary injury results in any of the following consequences for the victim:
a) Permanent impairment of the function of one of their senses or organs,
b) Fracture of a bone in the body,
c) Permanent difficulty in speech,
d) A permanent scar on the face,
e) A condition that endangers the victim’s life,
f) Premature birth of a child by a pregnant woman,
then the penalty determined under the first paragraph shall be increased by half.
(3) If the act of involuntary injury results in any of the following consequences for the victim:
a) An incurable illness or a persistent vegetative state,
b) Loss of function of one of their senses or organs,
c) Loss of the ability to speak or reproduce,
d) Permanent disfigurement of the face,
e) Miscarriage of a pregnant woman’s child,
then the penalty determined under the first paragraph shall be doubled.
(4) If the act causes injury to more than one person, a prison sentence of six months to three years shall be imposed.
(5) (Amended: 6/12/2006 – Article 5560/5) The investigation and prosecution of the offense of involuntary injury is subject to a complaint. However, except for injuries falling under the scope of the first paragraph, if the offense is committed with conscious negligence, a complaint is not required.
As can be seen in the relevant article of the law, a person who causes physical pain, or the impairment of health or sensory perception of another due to negligence, can be said to have committed the offense of involuntary injury. If, at the end of the judicial proceedings, it is established that the person has committed the offense of involuntary injury, they shall be punished in accordance with the relevant provision of the law.
IS THE OFFENSE OF INVOLUNTARY INJURY SUBJECT TO COMPLAINT?
Whether the offense of involuntary injury is subject to complaint depends on the nature of the injurious act. As a rule, the offense of involuntary injury is among the offenses subject to complaint. However, the exception to this is when the injurious act is committed with conscious negligence. In cases where the act of injury is committed with conscious negligence, a complaint is not required for the more serious forms covered under Articles 89/2, 89/3, and 89/4 of the Turkish Penal Code, with the exception of the simple form covered under Article 89/1. In such cases, the public prosecutor can initiate an investigation ex officio.
The complaint period is limited to six months starting from the date of the injurious act, according to the law. This six-month period begins from the time the offense is committed and the offender is identified. This complaint period is a statute of limitation, meaning if it is missed, the right to file a complaint is lost. However, if the victim has missed the deadline due to a justifiable reason, the complaint may still be filed through a legal procedure known as restitution (restitutio in integrum).
The Reconciliation Procedure in the Offense of Involuntary Injury
In our criminal law, the provisions related to reconciliation are regulated under Articles 253 and 254 of the Criminal Procedure Code (CMK). Through the institution of reconciliation, if the victim and the person suspected of committing the offense reach an agreement under the reconciliation provisions, the criminal proceedings are terminated. The offense of involuntary injury is a type of crime in which reconciliation provisions can be applied in all cases. The reconciliation procedure can be applied both during the investigation and prosecution stages. If the parties wish to apply the reconciliation provisions, the reconciliation procedure can be implemented at both stages of the process.
Statute of Limitations in the Crime of Involuntary Injury
In the crime of involuntary injury, the statute of limitations is generally 8 years. However, under certain conditions, the statute of limitations, which is set at 8 years, can be extended up to 12 years. Therefore, it will not be possible to prosecute the crime of involuntary injury after 8 years as a general rule, or after 12 years in the presence of certain conditions.
Elements of the Crime of Involuntary Injury
The elements of the crime of involuntary injury, according to Supreme Court precedents, decisions of the Court of Cassation General Assembly, and the dominant opinion in the doctrine, are as follows:
The result must be foreseeable by the defendant: For a crime to be considered negligent, the result must be foreseeable by the defendant, but the defendant must not desire the result to occur. The key point here is that the defendant should not have foreseen the result.
The act must be one that can be committed negligently: According to the principle of legality accepted in Turkish criminal law, for a crime to be committed negligently, the negligent form of the crime must be explicitly regulated by law. The crime of injury is one of the crimes that can be committed negligently under the Turkish Penal Code (TCK).
The act must be committed by the defendant’s free will: In order to attribute the crime of involuntary injury to the defendant, the act must be performed through their own free will. In cases where a person loses their free will due to their own fault (e.g., being under the influence of alcohol or drugs), it will not affect their criminal liability.
The result of the act should not be desired by the defendant: One of the fundamental differences between crimes committed negligently and those committed intentionally is that in negligent crimes, the result is not desired by the perpetrator. The perpetrator should not want the result of their action to occur, even though they performed the act voluntarily.
There must be a causal link between the act and the result: In order for the crime to be attributed to the defendant, the result must occur as a consequence of the defendant’s act. If there is no cause-and-effect relationship between the result and the defendant’s action, the crime cannot be attributed to the defendant. The connection between the act and the result should not be severed by the intervention of the victim or a third party. That is, the result should not be interrupted by the actions of the victim or a third person.
Involuntary Injury Resulting from Medical Intervention
If the act of involuntary injury is committed by a doctor, the doctor’s liability will be invoked in such a case. If a person is injured as a result of the doctor’s negligent action, the doctor’s liability will be pursued. A compensation lawsuit can be filed against the doctor’s faulty action that caused the injury due to medical malpractice.
Involuntary Injury Caused by a Traffic Accident
Involuntary injury is most commonly encountered in traffic accidents. Whether the injury resulting from a traffic accident can be attributed to the party responsible for the accident depends on the determination of fault in the accident. The degree of fault of the person who caused the injury in a traffic accident must be determined by an expert report. In traffic accidents, fault is usually determined by experts within the framework of the Highway Traffic Law. According to this law, if the person responsible for the accident is not at fault or if the victim’s fault caused the injury, no penalty can be imposed on the offender. Therefore, in cases of involuntary injury caused by a traffic accident, an investigation into fault is necessary in order to hold the responsible party accountable for the crime. If the offender’s fault caused the involuntary injury in the traffic accident, the offender can be held responsible for the involuntary injury. Additionally, a civil lawsuit for both material and moral damages can be filed against the offender for causing involuntary injury in a traffic accident.
Involuntary Injury Due to a Workplace Accident
In cases of involuntary injury due to a workplace accident, for the employer to be held responsible for the injury, the employer must have acted contrary to their duty to supervise the employee; the employer must have failed to fulfill their obligations under occupational health and safety regulations, and must not have taken the necessary care in protecting the employees. Additionally, it should be noted that the employer is required to prepare an incident report regarding workplace accidents and submit this report to the Social Security Institution (SGK). If the employer fails to make the necessary notification to SGK, they may face administrative penalties. In the case of causing involuntary injury, the employer is liable for the resulting damage if they fail to comply with the specified obligations. The victim of the involuntary injury can file a lawsuit for both material and moral damages against the employer, claiming that the employer caused the injury due to a workplace accident.
Aggravating Circumstances in the Crime of Involuntary Injury
In the context of the crime of involuntary injury, if the aggravated circumstances specified in Article 89/2 of the Turkish Penal Code (TCK) exist, or if the circumstances that result in a more severe outcome as regulated in Article 89/3 of the TCK are present, or if the act causes injury to multiple individuals, or if the act is committed with conscious negligence, the penalty for the crime of involuntary injury will be increased.
Article 89/2 of the Turkish Penal Code (TCK) regulates the aggravated forms of the crime of involuntary injury. According to Article 89/2 of the TCK, the aggravated forms of the crime of involuntary injury are as follows:
If the act of involuntary injury results in the victim:
- The aggravated forms of involuntary injury, as outlined in Article 89/2 of the Turkish Penal Code (TCK), include situations where the act results in:
- A permanent weakening of the function of one of the victim’s senses or organs (temporary loss of function is not included),
- A bone fracture in the victim’s body,
- A permanent difficulty in the victim’s speech,
- A permanent scar on the victim’s face (the assessment of whether a permanent scar remains will be made by forensic medicine six months later),
- A situation that endangers the victim’s life, A premature birth of a fetus in a pregnant woman.
It is regulated as follows: According to the relevant paragraph, if the act of involuntary injury results in one of the consequences mentioned in the article, the penalty to be imposed will be increased by half.
As we mentioned, if the act of involuntary injury leads to the consequences specified in Article 89/3 of the Turkish Penal Code, the penalty will be increased. According to Article 89/3 of the Turkish Penal Code:
The act of involuntary injury results in the victim:
- The act of involuntary injury results in the victim,
- Contracting an illness with no possibility of recovery or entering a vegetative state,
- Losing the function of one of their senses or organs,
- Losing the ability to speak or have children,
- A permanent change in their facial appearance,
- A pregnant woman losing her child.
If the act of involuntary injury results in the aforementioned consequences, the penalty imposed on the perpetrator will be increased by one fold.
If multiple individuals are injured as a result of the act of involuntary injury, the penalty for the perpetrator will also be increased. If the act results in the involuntary injury of multiple people, the penalty imposed on the perpetrator will be increased to a prison sentence ranging from 6 months to 3 years. Additionally, in cases where multiple people are injured due to the perpetrator’s act, judicial fines will not be imposed, and no alternative penalties will be applied.
The explanations regarding involuntary injury apply to situations where the crime is committed with simple negligence. However, if the act is committed with conscious negligence, the penalty will be increased. In cases of conscious negligence, the penalty prescribed under Article 89 of the Turkish Penal Code (TCK) will be increased in accordance with Article 22/3 of the TCK, ranging from 1/3 to 1/2 of the original sentence for the crime of involuntary injury.
Mitigating Circumstances in the Crime of Involuntary Injury
There is no specific provision for a reduction of punishment in the law under the crime of involuntary injury. However, in the case of involuntary injury, a reduction in punishment can be applied by considering circumstances such as legal justification or personal immunity, which are regulated by the criminal law. The circumstances for not imposing a penalty or for reducing the punishment include:
- Legitimate Defense
- In legitimate defense, the boundary can be exceeded due to excitement, fear, and panic.
- State of Necessity
- Unjust Provocation
- Execution of an Order
- Minor Age
- Deafness or Muteness
- Mental Illness
- Influence on the Perpetrator’s Will through Force or Threat
- Temporary Causes such as Being Under the Influence of Drugs or Alcohol
They can be listed as follows. If any of these circumstances are present in the commission of the crime, a reduction in the penalty to be imposed on the perpetrator may be applied based on the conditions of the situation and which mitigating factor is present.
Effective Remorse in the Crime of Involuntary Injury
There is no specific provision for effective remorse in the crime of involuntary injury in the Turkish Penal Code. According to our law, the institution of effective remorse has been envisaged as a form of exemption from punishment or reduction in punishment in accordance with the crime it applies to. Since the institution of effective remorse is regulated specifically for each crime, the principle of legality means that effective remorse cannot be applied in the case of involuntary injury. Therefore, the institution of effective remorse cannot be applied in any form of the crime of involuntary injury.
Special Forms of the Crime of Involuntary Injury
Under Article 35 of the Turkish Penal Code (TCK), the provisions regulating attempt cannot be applied to the crime of involuntary injury. Attempt is only relevant to intentional crimes. According to TCK Article 35, if a person begins to commit a crime they intend to commit through appropriate actions but cannot complete it due to reasons beyond their control, they will be held responsible for the attempt. As can be understood from the legal provision regulating attempt, an attempt will only occur if there is an intention to commit a crime. Since there is no intent to commit a crime in the case of involuntary injury, it is not possible to speak of an attempt.
When considering the provisions of participation under TCK Article 37, it can also be said that the participation provisions cannot be applied to the crime of involuntary injury. TCK Article 37 states that each person who performs an act together with others, as defined in the legal definition of the crime, will be held responsible as a perpetrator. According to this legal provision, for participation to apply, the perpetrators must act together and cooperate to bring about the result. However, since in involuntary crimes, it is not possible to speak of cooperating to bring about the result, participation cannot be discussed in the case of the crime of involuntary injury.
Court Competent to Hear the Crime of Involuntary Injury
For the case of involuntary injury regulated under TCK Article 89/1, the court will apply the simplified trial procedure, while for other cases, the general trial procedure will apply. The competent court for the trial of the crime of involuntary injury is the criminal court of first instance. The trial will be conducted by the criminal courts of first instance.
The Execution Regime Applicable to Involuntary Injury
For the crime of involuntary injury, a choice of punishment is provided, consisting of imprisonment or a judicial fine. If the court imposes a sentence of imprisonment, it cannot later be converted into a judicial fine. However, if a sentence of imprisonment is imposed, the institution of deferred pronouncement of the judgment or the postponement of the sentence can be applied. Accordingly, in the case of the crime of involuntary injury, the execution of the sentence can be suspended or postponed under supervision by deciding on a sentence of imprisonment along with the deferred pronouncement of the judgment or the postponement of the sentence.
Example Court of Cassation Decisions Regarding the Crime of Involuntary Injury
On the day of the incident, at around 01:30 AM, while the defendant was driving in a residential area on a one-way asphalt road, 7 meters wide, with a blood alcohol level of 3.48 per mille according to the doctor’s report, he collided with the parked vehicle of A.C. (against whom a decision was made stating ‘no further prosecution’) from behind, with full and primary fault. As a result of this collision, M.T., who was a passenger in the vehicle, suffered a bone fracture that endangered his life and severely affected his life functions (degree 5). In this incident, the defendant’s single act resulted in both the crimes of involuntary injury and endangering traffic safety. The crime of involuntary injury is a damage crime, while the crime of endangering traffic safety, as regulated in Article 179 of the Turkish Penal Code (TCK), is a danger crime. In cases where both crimes are committed together, when determining which crime the defendant will be punished for, the weight of the penalties prescribed in the law for these crimes should not be the determining factor; instead, the damage-danger criteria should be applied. Therefore, if it is possible to punish the defendant for involuntary injury, he should only be punished for that crime, and a decision of ‘no grounds for judgment’ should be made for the crime of endangering traffic safety. If reconciliation occurs in the involuntary injury case, the decision of ‘no grounds for judgment’ should also be made for the crime of endangering traffic safety. If, due to the failure to meet the condition for prosecution or the withdrawal of the complaint, it is not possible to punish the defendant for involuntary injury, then the defendant should be punished for the crime of endangering traffic safety as regulated in Article 179 of the TCK. Considering that the victim, who was severely injured in the incident, is not complaining about the defendant and wishes to reconcile, and the defendant has also expressed a desire to reconcile, it must be investigated whether the reconciliation procedure has been applied for the crime of involuntary injury and whether a decision of ‘no grounds for prosecution’ has been made. If so, a decision of ‘no grounds for judgment’ should be made for this case. If reconciliation is not achieved, after ensuring that a report is filed and a lawsuit is initiated for the crime of involuntary injury, the case should be merged with this file and only a judgment should be rendered for the crime of conscious involuntary injury. If this is not considered, the trial should continue and a judgment should be made as written (Court of Cassation 12th Criminal Chamber – Decision: 2017/3057).
12th Criminal Chamber 2017/10498 E., 2018/11337 K.
“Case Law Text”
Court: Criminal Court of First Instance
Crime: Involuntary injury, failure to place signs and obstacles
Judgment: The defendant … is acquitted of the crime of involuntary injury in accordance with Article 223/2-c of the Criminal Procedure Code (CMK).
For the crime of involuntary injury, the defendant … is sentenced in accordance with Articles 89/1, 62/1, and 52/2 of the Turkish Penal Code (TCK).
For the crime of failure to place signs and obstacles, the defendants are acquitted in accordance with Article 223/2-e of the Criminal Procedure Code (CMK).
The judgments of acquittal for the defendant … in the crime of involuntary injury and the defendants …, …, and … in the crime of failure to place signs and obstacles were appealed by the local public prosecutor, and the judgment regarding the conviction of defendant … for the crime of involuntary injury was appealed by the defendant’s defense lawyer. The file was examined, and the necessary action was considered.
In the opinion prepared by the Chief Public Prosecutor’s Office of the Court of Cassation, since no opinion was provided regarding the appeal request by the defendant’s lawyer concerning the conviction of defendant … for the crime of involuntary injury, the case was referred to the Chief Public Prosecutor’s Office of the Court of Cassation for an opinion to be given on this matter; the decision was unanimously made on 28.11.2018.
12th Criminal Chamber 2022/2265 E., 2022/4780 K.
“Case Law Text”
Court: Criminal Court of First Instance
Crime: Involuntary injury
Judgment: Dismissal pursuant to Article 223/8 of the Criminal Procedure Code (CMK).
The judgment regarding the dismissal of the public case filed against the defendant for the crime of involuntary injury due to the failure to grant investigation permission was appealed by the victim’s representative. The case file was examined, and the necessary action was considered:
In light of the provision in Article 89/5 of the Turkish Penal Code No. 5237, which states that “The investigation and prosecution of the crime of involuntary injury is subject to complaint. However, in cases where the crime is committed with conscious negligence, no complaint is required, except for injuries covered under the first paragraph,” it was understood that in the present case, the conditions of conscious negligence were not met, and the victim had withdrawn the complaint during the hearing on 06.07.2021. Since the victim, who lost their status as the complainant due to withdrawing the complaint, did not have the right to appeal the judgment, the victim’s appeal request was REJECTED, contrary to the request, in accordance with Article 317 of the Code of Criminal Procedure No. 1412, which is still in effect under Article 8 of Law No. 5320. The decision was made unanimously on 14.06.2022.
In the incident that occurred on the night of the event, at around 00:43, outside the residential area, on a road divided by a median strip, while the defendant was driving under the influence of alcohol at 18 promille, as measured half an hour later, and losing control of the steering wheel due to the effect of alcohol, crashing into a pole on the median and overturning, crossing into the opposite lane, the defendant caused the injury of his friend, the victim Okan Yendi, who was a passenger in the vehicle and did not file a complaint, suffering a moderate (2nd degree) clavicle bone fracture. In this case, since the victim’s injury falls within the scope of Article 89, paragraph 2-b and subparagraph 2-b of the Turkish Penal Code (TCK), and the conditions for the application of conscious negligence are met, it was found that the prosecution of the defendant for the crime of involuntary injury is not subject to the complaint of the victim under paragraph 5 of the same article. Given that no decision of non-prosecution had been issued due to the victim not filing a complaint and the narrative in the indictment, and considering the possibility of applying Article 89/2-b of the TCK, it is necessary to grant the defendant an additional right to defend himself. Instead of the defendant being sentenced for the crime of consciously negligent injury, taking into account his acquired rights concerning the severity of the penalty, the decision to convict the defendant for the alleged crime of endangering traffic safety is unlawful (Court of Cassation 12th Criminal Chamber – Decision: 2014/7629).
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