As a requirement of social solidarity and respect for human life, the Turkish Penal Code has made it mandatory for individuals to assume responsibility toward people who are in danger. In this context, individuals who have the opportunity to assist persons who cannot manage themselves due to age, illness, or other reasons, but fail to provide help or notify the relevant authorities, are defined under Article 98 of the Turkish Penal Code as committing the “crime of failure to fulfill the duty to assist or notify”, and under certain conditions, this act is subject to criminal sanctions.
In this article, the scope, elements, conditions, and legal consequences of the crime of failure to fulfill the duty to assist or notify will be examined.
LEGAL DEFINITION OF THE CRIME
The crime of failure to fulfill the duty to assist or notify is regulated under Article 98 of the Turkish Penal Code, titled “Violation of the Duty of Protection, Supervision, Assistance, or Notification.” The relevant article of the law states:
TCK Article 98
(1) A person who does not assist someone who cannot manage themselves due to age, illness, injury, or any other reason, to the extent allowed by the circumstances, or who fails to immediately notify the relevant authorities, shall be punished with imprisonment for up to one year or a judicial fine.
(2) If the failure to fulfill the duty to assist or notify results in the death of the person, the offender shall be sentenced to imprisonment for one to three years.
The provision establishes that a person who fails to assist or notify the competent authorities regarding someone unable to manage themselves due to age or illness can be held criminally liable for the crime of failure to fulfill the duty to assist or notify based on their negligent behavior.
Elements of the Crime
When the crime of failure to fulfill the duty to assist or notify is evaluated in terms of both its objective and subjective elements, it has the following fundamental components:
1.Mental Element: The crime can only be committed intentionally. According to Article 98, for the crime to occur, it is sufficient that the perpetrator knowingly and willingly fails to assist or immediately notify the authorities despite being aware that they are in a position to eliminate the danger faced by the person who cannot manage themselves due to age or illness.
2.Perpetrator: According to Article 98 of the Turkish Penal Code, the perpetrator of the crime is the person who neglects the duty to assist or notify someone who cannot manage themselves due to age or illness. Therefore, anyone can be the perpetrator. However, for this type of crime to occur, the perpetrator must not have a supervision or protection duty toward the person unable to manage themselves. If the perpetrator is someone who has a duty of protection and supervision over the victim, then the crime of abandonment regulated under Article 97 of the Turkish Penal Code would apply.
3.Victim: The victim of the crime is someone who cannot manage themselves due to age, illness, or other reasons.
4.Act (Conduct Element): The crime occurs through the perpetration of negligent behaviors, namely “failing to assist” or “failing to immediately notify the relevant authorities” concerning a person unable to manage themselves due to age or illness. This is a crime of alternative conduct, meaning that the occurrence of either act is sufficient for the crime to be constituted. However, if the victim is able to manage themselves as a result of the perpetrator’s assistance, there is no additional obligation for the perpetrator to notify the competent authorities.
5.Legal Interest Protected: The crime of failure to fulfill the duty to assist or notify is regulated under the title “Violation of the Duty of Protection, Supervision, Assistance, or Notification,” and the legal interest protected by this crime is the right to life and bodily integrity of individuals.
Aggravated Form of the Crime Due to Its Consequences
The crime of failure to fulfill the duty to assist or notify is a danger-based crime, and the occurrence of actual harm is not required for the crime to be constituted. It is sufficient for the formation of the crime that the perpetrator, knowingly and willingly, fails to provide assistance or immediately notify the authorities, despite being aware that they are in a position to eliminate the danger faced by a person who cannot manage themselves due to age or illness.
However, if the failure to fulfill the duty to assist or notify results in the death of the person, the perpetrator shall be punished under the provisions for the aggravated form of the crime due to its consequences. This is explicitly explained in Article 98/2 of the Turkish Penal Code, which states:
“If the failure to fulfill the duty to assist or notify results in the death of the person, the perpetrator shall be sentenced to imprisonment for one to three years.”
Special Forms of the Crime
1-Attempt: The commission of this crime can only occur through intentional conduct, and therefore, the provisions on attempt are not applicable. Indeed, the crime of failure to fulfill the duty to assist or notify is a crime committed through omission, and the rules regarding attempt do not apply to crimes committed by omission.
2-Cumulative Offenses: It is possible for the crime of failure to fulfill the duty to assist or notify to be committed simultaneously against multiple persons in need of assistance. In such cases, the perpetrator is sentenced to a single penalty, which is increased in accordance with Article 43/2 of the Turkish Penal Code.
Complaint Period, Statute of Limitations, and Competent Court
The crime of failure to fulfill the duty to assist or notify is not subject to complaint and is investigated ex officio by the public prosecutor. Although there is no complaint period for investigating the crime, the statute of limitations for the case is eight years. In omission-based crimes, the statute of limitations usually begins when the perpetrator fails to perform the expected act; however, for this type of crime, the period starts not from the date the crime was committed but from the date the crime ceases. Indeed, the crime begins at the moment the perpetrator fails to assist the victim or notify the competent authorities and ends when this duty is no longer applicable.
The competent court is the Criminal Court of First Instance located where the victim is or where the relevant authorities were not notified.
Suspension of the Pronouncement of Judgment, Postponement, and Judicial Fine
According to Article 98 of the Turkish Penal Code (TCK), a person who, due to age, illness, injury, or any other reason, fails to assist someone unable to care for themselves to the extent the circumstances allow, or fails to immediately notify the relevant authorities, shall be punished with imprisonment of up to one year or a judicial fine. If the failure to fulfill the duty to assist or notify results in the death of the person, the perpetrator shall be sentenced to imprisonment for one to three years.
For this crime, a judicial fine is prescribed alongside imprisonment; however, it is not possible to convert the imposed prison sentence into a judicial fine.
Postponement refers to the deferral of the execution of a prison sentence imposed on a person, whereas the suspension of the pronouncement of judgment refers to the court placing the penalty on hold, provided that the defendant complies with obligations during a specified probationary period. Considering the lower and upper limits of the penalty, it is possible to apply either a suspension of the pronouncement of judgment or a postponement of the sentence.
Decisions Related to the Subject
“…Upon examining the minutes, documents, and the reasoning reflecting the trial process in which the defendant’s conscience was formed, it was determined that the intentional crime leading to the pronouncement of the judgment was the failure to fulfill the duty to assist or notify as regulated under Article 98/1 of the Turkish Penal Code (TCK). In light of the amendment to Article 75 of TCK No. 5237 by Article 12 of Law No. 6763, published in the Official Gazette on 02/12/2016 and entering into force on the same date, which reorganized the prepayment provisions, and the inclusion of the alleged offense under Article 98/1 of TCK within the scope of prepayment, it was necessary to investigate whether an adjustment trial had been conducted for this offense. If the prepayment procedure had been successfully completed, it was also necessary to determine whether the defendant had been convicted of any other intentional crimes during the supervision period and, based on this, to assess whether the suspended judgment should be pronounced.
This necessity required annulment, and since the defendant’s grounds for appeal were deemed valid, in accordance with the notification, without examining other aspects, THE JUDGMENTS WERE REVOKED, and the file was sent back to the court of first instance for the trial to continue from the pre-annulment stage and to be concluded. The decision was made unanimously on 13/06/2019…”
(Yargıtay 18th Criminal Chamber, 2017/5501 E., 2019/10577 K., 13.06.2019)
Upon reviewing the appeal against the conviction of the defendant for the crime of failing to fulfill the duty to assist or notify; in the concrete case where the unlicensed and heavily intoxicated defendant, while driving at night on a one-way wet asphalt road in a residential area, struck the claimant who was attempting to cross the street, causing serious injury, it was understood that the defendant did not stop after the accident and continued driving, leaving the claimant injured at the scene. However, since there were witnesses at the scene and the claimant was taken to the hospital shortly afterward with the assistance of bystanders, the legal elements of the crime of failing to fulfill the duty to assist or notify were not met. Therefore, deciding on the defendant’s conviction due to a misassessment of the evidence instead of acquittal from the alleged crime constitutes a violation of the law.
Since the defendant’s appeal objections were thus found to be valid, the judgment is REVOKED contrary to the request in accordance with Article 8 of Law No. 5320 and Article 321 of the currently applicable CMUK No. 1412.
(Yargıtay 12th Criminal Chamber, 2017/5844 E., 2018/5668 K., 17.05.2018)
Regarding the appeal review of the judgment established for the crime of failing to fulfill the duty to assist or notify; considering that after hitting the deceased, the defendant, in shock from the incident, did not stop and left the accident scene, and that the deceased was taken to the hospital by friends present at the scene and subsequently died in the hospital immediately after the traffic accident occurred; while the defendant’s act should have been considered an administrative offense punishable by a fine under Article 82 of the Highway Traffic Law No. 2918, titled “Obligations in Traffic Accidents,” the conviction of the defendant for the crime defined under Article 98 of the Turkish Penal Code No. 5237 for failing to fulfill the duty to assist or notify, which did not meet the legal elements, is contrary to the law.
Since the defendant’s attorney’s appeal objections were therefore deemed valid, the judgment is REVOKED for this reason in accordance with the request, decided unanimously on 10/09/2012.
(Yargıtay 8th Criminal Chamber, 2011/24162 E., 2012/17977 K., 10.09.2012)
“…On the day of the incident, in the suspicious death that occurred at the defendant’s residence due to “acute drug intoxication and the combined effect of complications arising from chronic use,” the deceased, who had used drugs together with the defendant, became unwell. Believing that the illness was caused by drug use and fearing that investigation would ensue if the situation were discovered, the defendant called emergency services (112) two hours after the incident. When the 112 personnel arrived, the deceased had already passed away, while the defendant was reported to be intoxicated but able to stand and conscious. Considering that the defendant called the ambulance two hours after the friend’s deterioration due to drug use, and that death occurred during this period, the court convicted the defendant for the crime of failing to fulfill the duty to assist or notify as defined under Article 98 of the Turkish Penal Code No. 5237.
Upon review, considering the trial conducted in accordance with the reversal decision, the evidence presented and cited in the judgment, the court’s assessment and discretion based on the investigation results, and the scope of the reviewed file, the defendant’s appeal objections — including the claim that the imposed penalty was not justified, that the defendant’s negligence was intentional, and that the decision was procedurally and legally flawed — were rejected. Accordingly, the judgment was UPHELD as requested…”
(Yargıtay 12th Criminal Chamber, 2019/13594 E., 2020/4184 K., 01.07.2020)
“…According to the case file, the defendant, who committed the crimes of aggravated sexual assault and deprivation of personal liberty against the female victim, could not additionally be held responsible for fulfilling the duty of assistance or notification towards this victim. Without considering that the material and moral elements of this crime did not exist for the defendant, a conviction was issued instead of an acquittal.
This is contrary to the law, and the defendant’s appeal objections are therefore well-founded. Accordingly, pursuant to Article 8/1 of Law No. 5320 and Article 321 of the CMUK, the judgment is REVERSED…”
(Yargıtay 14th Criminal Chamber, 2013/10028 E., 2014/159 K., 14.01.2014)
“…The crime of failing to fulfill the duty of assistance or notification is regulated under Article 98 of the Turkish Penal Code as follows:
(1) A person who, due to age, illness, injury, or any other reason, fails to provide assistance to someone unable to manage themselves to the extent possible under the circumstances, or fails to immediately notify the relevant authorities, shall be punished with imprisonment for up to one year or a judicial fine.
(2) In the event that the failure to fulfill the duty of assistance or notification results in the death of the person, the punishment shall be imprisonment from one to three years.”
The same crime was regulated under Article 476 of the former Turkish Penal Code No. 765 as follows:
“If a person finds an abandoned child under the age of seven or someone unable to manage themselves due to mental or physical illness and fails to immediately notify the relevant authority or government officials, they shall be punished with a fine of five to fifty lira. The same penalty shall also apply to anyone who encounters an injured person, someone in danger, or a dead or seemingly dead body and fails to provide possible assistance or immediately notify the relevant authority or government officials.”
As can be seen, the new law differs from the old law in that it does not set an age limit. Instead, it uses the term “someone unable to manage themselves due to age,” emphasizing that elderly individuals can also be victims of this crime. Additionally, the causes that render a person unable to manage themselves are not exhaustively listed. The phrase “for any other reason” is included, expanding the scope by assuming that people may need assistance in situations beyond those explicitly mentioned.
The legal value protected by the crime of failing to fulfill the duty of assistance or notification is the preservation of individuals’ right to life and bodily integrity. Moreover, this crime aims to ensure that members of society fulfill their “moral and social duty” to assist or notify authorities when encountering individuals unable to manage themselves due to age, illness, injury, or other reasons, thereby sustaining social solidarity.
The duty of assistance or notification arises from the necessities of social and communal life in civilized societies. It is accepted that individuals have an obligation to protect and help the vulnerable. This duty also has a moral dimension. By imposing a legal obligation to help or notify in situations where individuals are in need, any failure to act is subject to criminal sanction.
The material element of the crime consists of an act of omission: “failing to provide assistance” or “failing to immediately notify the relevant authorities” to someone who is unable to manage themselves due to age, illness, injury, or any other reason, to the extent permitted by the circumstances. The legislator envisaged two types of omission, either of which is sufficient for the formation of the crime. This constitutes a crime with alternative acts, both of which are considered omissions.
The liability of the perpetrator depends on whether it is possible for them to provide assistance proportionally, without putting themselves or others at risk, and considering the circumstances and their abilities. When it is determined that assistance is possible, the form and scope of the assistance will be evaluated by the court according to the specific circumstances of the case, including the perpetrator’s personal and physical characteristics, experience, knowledge, available tools, the degree of danger, and whether the perpetrator may have gone into shock during sudden events.
The expected assistance may involve protective measures to prevent the existing harm or danger from escalating. However, if it is clear that assistance alone would be insufficient, the perpetrator must immediately notify the relevant authorities to avoid liability. Notification can be carried out using communication devices, gestures, written or verbal messages, or in any other suitable manner.
A person who encounters an individual in such circumstances must first provide assistance if possible; if it is impossible or insufficient, they must immediately notify the relevant authorities. It should be noted that if others provide help or notify the authorities, removing the necessity for the perpetrator to act, the crime cannot be considered to have occurred.
The immediate reporting requirement means that, depending on the circumstances, the most appropriate method of notification should be chosen, and the obligation must be fulfilled without delay by informing the relevant authorities. The term “relevant authorities” refers to judicial and law enforcement bodies responsible for conducting investigations, as well as other official institutions obliged to report the situation to judicial authorities.
The victim of the crime is someone who, due to age, illness, injury, or any other reason, is unable to manage themselves. The victim must be a living person. In this crime, the victim’s age, injury, or illness alone is not sufficient to establish victimhood. For the crime to occur, the victim must be unable to manage themselves for the reasons specified. It does not matter why the victim requires assistance. Being unable to manage oneself means that, without the help of another, the victim faces a serious threat to their life, health, or bodily integrity.
Anyone other than the person who caused the incident can be the perpetrator of this crime. If the perpetrator caused the victim to become in need of assistance through intentional or negligent actions, they cannot be expected to provide help or notification; in such cases, the perpetrator is only responsible for the original offense. However, if the person who caused the incident voluntarily assumed the initiative to help the victim, thereby preventing others from providing assistance or notifying the authorities, and still failed to provide help, they are liable for this crime because they did not fulfill the obligation they voluntarily undertook.
If the perpetrator has a legal duty to protect or supervise the victim, the crime of abandonment may apply. If the perpetrator has a legal obligation to prevent the outcome, and their noncompliance with duties occurs along with other necessary conditions, this may be evaluated under the crime of intentional killing by omission regulated in Article 83 or intentional injury by omission regulated in Article 88.
The subject matter of the crime of failing to fulfill the duty of assistance or notification is the injury or harm to the victim resulting from the failure to fulfill the obligations specified in the statute. If the victim dies due to the failure to fulfill these obligations, the provisions of the second paragraph of the article apply.
The mental element of this crime, regulated as a “danger offense” in the first paragraph of the article, is intent. The perpetrator will know that the victim is unable to manage themselves and that the danger could be averted if assistance or notification is provided, yet will consciously choose not to fulfill these obligations.
The second paragraph of the article provides for an aggravated form of the offense based on the consequence. Accordingly, if a person dies due to the failure to fulfill the duty of assistance or notification, the perpetrator will be subject to the aggravated penalty specified in the second paragraph. However, for the perpetrator to be held responsible for this severe outcome, they must have acted at least negligently regarding the result, in accordance with Article 23 of the Turkish Penal Code.
In addition to being a danger offense, the crime is of an omission nature. Since the omission is continuous and there is no way to evaluate an incomplete omissive act or to determine what outcome it was directed toward, attempt of this crime is impossible.
Because the negligent act of each person who violates the duty of assistance or notification constitutes a separate offense, co-perpetration is generally not possible in this crime. Exceptionally, co-perpetration may occur only if a person who does not have the duty of assistance or notification (and thus is not the primary perpetrator) instigates a person who does have the duty to commit the offense.
When the perpetrator performs both of the optional acts of omission provided in the article—that is, violates both the duty to provide assistance and the duty to notify—they are held responsible for a single offense. Moreover, if there are multiple individuals in need of assistance, a single penalty is imposed under the rule of cumulative intent of the same type, and this penalty is increased in accordance with Article 43/2 of the Turkish Penal Code (TCK).
If the perpetrator has caused the victim to become unable to manage themselves due to the dangerous situation and death occurs as a result, they must be held responsible for the crime of intentional killing by omission as defined in Article 83 of the said law.
In the specific case subject to the trial:
The plaintiff, a four-year-old child attending a private kindergarten where E.. was the principal, S.. the founding owner, and D.. a teacher, was injured 15–20 minutes before the school bus arrived. According to the medical report, the injuries included “a 3–4 cm bite mark on the left cheek, a 2.5–3.5 cm bite mark on the left elbow, and a total of 9–10 superficial scratches around both eyes,” caused by another student in the same class. It was alleged that the defendants did not take the child to the hospital and did not report the incident to the child’s parents or relevant authorities.
Since defendants E.. and S.. were not present at the school on the day of the incident, they cannot be held responsible. As for D.., they were not responsible for the plaintiff’s class. Even if responsibility were assumed, the child’s injuries were at a level that could be treated with basic medical intervention, and the notification obligation was removed as the parent arrived shortly afterward. Therefore, the acquittal decisions based on the reasoning that the offense of failing to fulfill the duty of assistance or notification under Article 98 of the TCK did not occur were found appropriate.
Accordingly, the appeals made by the plaintiff’s attorney, S.. Y.., and the local Public Prosecutor regarding the actions and the alleged crime were found to be without merit, and in accordance with the notice, it was unanimously decided on 25/12/2015 to dismiss the appeal on the merits and uphold the judgments.
(Yargıtay 4th Criminal Chamber, 2014/51746 E., 2015/40859 K., 25.12.2015)
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
