The crime and punishment of negligent murder

What is the crime of reckless homicide?

The crime and punishment of reckless homicide are regulated under the title "Crimes Against Life" in Article 85 of the Turkish Penal Code. The most fundamental right of individuals, the right to life, was tried to be protected through crime. According to the General Criminal Assembly of the Supreme Court of Appeals, the aim of negligent crimes is to ensure that people act more carefully in an increasingly intense and complex social life.

In the justification of the article, "The provisions regarding negligence in the First Book titled General Provisions are also valid for this crime." The statement is included. Based on this, we will first try to explain the concept of negligence within the framework of general provisions.

WHAT IS NEGLIGENCE CRIME?

Article 22 of the TCK defines the crime of negligence; It is defined as committing a behavior without foreseeing the consequences specified in the legal definition of the crime, due to violation of the duty of care and attention. In the justification of the article, it is stated that "As a rule, crimes are committed intentionally. However, as an exception, certain acts committed through negligence are also defined as crimes in the law." His statements are included.

The existence of negligence depends on the perpetrator's breach of his duty of care and diligence and his failure to foresee the outcome. Based on practice and the established Supreme Court jurisprudence, it is possible to list the elements of negligence as follows:

1- The Act is a Negligent Crime

TCK 22/1. The article states that negligence is an exception in terms of committing crimes. In the justification of the article, the statement "crimes are, as a rule, committed deliberately" is included. Therefore, in order for an act to be committed by negligence, it must be clearly regulated in the law that that act can be committed by negligence. However, certain types of crimes listed in the law can be committed through negligence.

2- The Result is Predictable

The foreseeability of the outcome constitutes the essential condition of negligence. In order for the perpetrator to refrain from behavior that may lead to criminal consequences, he must have been able to foresee the outcome. Otherwise, no fault can be attributed to the perpetrator. Foreseeability of the outcome (predictability) refers to the ability of the agent to predict the consequences of his actions.

Determining whether the perpetrator could have foreseen the outcome should be determined by comparing him with people who have similar characteristics. While making this evaluation, the perpetrator's age, manners, profession, etc. Qualities such as these should be taken into consideration.

3- Violating the Obligation of Care and Attention

According to Article 22 of the Turkish Penal Code, negligence is the performance of a behavior without foreseeing the consequences specified in the legal definition of the crime, due to violation of the duty of care and diligence. In the justification of the article, "The distinctive feature of negligent crimes is the existence of a voluntary act, which can be executive or negligent, and one of the elements included in the legal definition is not foreseen. However, this failure to foresee must arise due to violation of the obligation of "necessary care and attention". Because the result defined in the law was not foreseen to occur because the necessary care and attention was not taken." Expressions were used. Based on this, in order to attribute fault to the perpetrator, there must be a violation of the duty of care and attention. When determining whether there is a violation of the duty of care and attention, objective principles are taken into account. Therefore, the personal abilities of the perpetrator do not matter. As stated by the Supreme Court in many of its decisions, if the outcome of the action taken cannot be foreseen according to common experience and if such an obligation is not imposed by law, there can be no mention of a negligent act, and criminal liability will not arise due to this situation called "accident" or "coincidence". Again, as stated in the justification of the article, rules regarding construction activity, execution of health services and traffic order can be cited as examples of the obligation of care and attention. An expert examination may be conducted for violation of the duty of care and attention.

4- The Movement Must Be Voluntary

The fact that the action is voluntary constitutes the common point of intent and negligence. Voluntariness of the action means that the perpetrator carries out the behavior knowingly and willingly. Here, the perpetrator's ability to be held responsible for the crime depends on his acting with his free will. In cases where free will is lost voluntarily (drunkenness, etc.), a crime will occur.

5- Not Desiring the Result

Not wanting the outcome is among the basic elements of negligence. Even though the behavior is voluntary, the perpetrator must not want the result to occur. Moreover, if the result is desired, the existence of intent will be mentioned. The element of will distinguishes between intent and negligence.

6- There is a causal link between the action and the result

Finally, in negligent liability, there must be a causal link between the perpetrator's action and the result. If a cause-effect relationship cannot be established between the action and the result, the perpetrator cannot be punished. In a decision of the General Criminal Assembly of the Supreme Court of Appeals dated 2020, "If it can be said that the result resulting from the crime committed by negligence would not have occurred without the action of the perpetrator, then the existence of a causal link is accepted. For example, if it is concluded that death would not have occurred if the perpetrator had not acted recklessly, the causal link will be accepted. The objective attributability to be sought in negligent crimes is to cause the result as a result of failure to fulfill the obligation of care and attention. The perpetrator has fulfilled the obligation of necessary care and attention." "If it can be said that the result would not have occurred if it had happened, then the result can be attributed to the perpetrator. Although it is easy to determine the causal link in negligent crimes if the result resulted only from the action of the perpetrator, it is certain that there will be various difficulties in determining this link in cases where the victim or third parties contributed to the result." Expressions are used.

MATERIAL ELEMENTS OF THE CRIME OF NEGLIGENT MURDER

Perpetrator and Victim

The crime of reckless homicide is a type of crime that can be committed by anyone. No distinction was made in terms of the characteristics of the perpetrator.

The victim of the crime can be anyone. It is sufficient for the crime to occur if the victim is alive at the time the crime is committed. Since the fetus is not legally considered a human being, the crime of reckless homicide cannot be committed against the fetus.

Action

The crime of reckless homicide is a free action crime type. It is necessary and sufficient that the action taken is conducive to killing a person. Again, as we stated above, the result must occur for the crime to be completed. A causal link is sought between the result and the action.

QUALIFIED FORM OF THE CRIME OF NEGLIGENT MURDER

TCK 85/2. According to the article, if the act causes the death of more than one person or the death of one or more people and the injury of one or more people, the punishment to be given to the perpetrator will be increased. In order to create this qualified situation listed in the law;

- Death of more than one person,

- One or more people are injured along with the death of more than one person,

- Death of one person and injury of one person

- When one person dies, more than one person gets injured,

One of the consequences must occur. The existence of any of the above-mentioned situations will cause the penalty to be increased.

CONSCIOUS NEGLIGENCE MURDER

Article 22 of the Turkish Penal Code divides negligence into two: simple negligence and conscious negligence. Conscious negligence is defined in the law as "the occurrence of a result even though the person does not want the result he predicted."

Simple negligence and conscious negligence differ in terms of the foreseeing element of negligence, which we explained in detail above. While in simple negligence the perpetrator could not foresee the foreseeable outcome, conscious negligence occurs when the perpetrator could foresee the outcome. In conscious negligence, the perpetrator is responsible for the nature of the incident, his own ability, the position of the victim, etc. It acts with the idea that the result will not be realized due to the factors. As in simple negligence, in conscious negligence, the perpetrator does not want the outcome to occur. As a matter of fact, as stated by the General Criminal Assembly of the Supreme Court of Appeals in a decision dated 2020;

"In conscious negligence, although the perpetrator is of the opinion that the result will not occur, he does not want the result to occur, and in addition, he does his best to prevent it from happening. If he accepts the existence of the possibility and possibility of it occurring, he automatically gives up doing the action. In other words, if we need to explain it in other words, in conscious negligence, the perpetrator gives the necessary importance to the result not occurring and takes this issue seriously. He has the desire, thought and expectation that the result will not occur."

It has been regulated that if the crime of consciously negligent homicide is committed, the penalty to be given to the perpetrator will be increased. The reason for increasing the penalty is in line with the opinion of the General Criminal Assembly of the Supreme Court of Appeals: "The result that occurred in conscious negligence was not intended by the perpetrator even though it was foreseen. The dangerousness of a person who acts by relying only on his luck or other factors, or even his own skill or knowledge, even though he actually predicted the result, cannot be considered the same as the dangerousness of a person who could not foresee this. The person who foresees the result is obliged not to take any action that will bring about this result, no matter what." It is possible to explain it as follows.

The existence of conscious negligence must be evaluated separately according to each concrete event. On the other hand, some sample judicial decisions from practice are as follows:

- "On the night of the incident, while driving on the Trabzon-Giresun highway, the defendant, who was driving in the wrong direction on the divided road in the Adacık neighborhood of Beşikdüzü district, with his headlights on and 2.70 promil alcohol, crashed into the vehicle of participant H., who was driving on the section reserved for them on the same road, causing injuries to the participants in the vehicle and the death of Serpil. He entered the section he was driving on purpose, continued driving even though he knew it was in the opposite direction, even though he predicted that he might cause injury or death by hitting a vehicle coming from the opposite direction, he trusted his experience, his driving skills, the fact that traffic would be low due to it being night, and especially his luck, and that those coming from the opposite direction would be careful to protect themselves, and with such a suspicion, he acted contrary to his obligation of objective attention and care, causing the result he had foreseen but did not want, and since it was understood that he did not accept and desire the result, he did not want it to happen, but he predicted it; YCGK 2016/250 K. concluded that the defendant, who did not act in accordance with the objective duty of care to prevent the outcome from occurring, acted with conscious negligence in his action that resulted in the death of one person and the injury of more than one person.

- "The defendant's action of shooting into the air with an unlicensed gun in the crowded area where the wedding ceremony was held, even though he predicted that the bullet coming out of the gun might hit one of the people present at the wedding ceremony, is in violation of Article 22/3 of the TCK No. 5237. Although it is understood that there is a state of conscious negligence expressed in the article and therefore the basic penalty imposed on the defendant should be increased..." YCGK 2012/5120 K.

PUNISHMENT FOR REGULAR MURDER

- The simplest case of the crimerequires imprisonment from two to six years.

- If the act causes the death of more than one person or the death of one or more people and the injury of one or more people, it is punished with imprisonment from two to fifteen years.

- In addition, in accordance with TCK 22/3, if the crime is committed through conscious negligence, the penalty to be given to the perpetrator is increased from one-third to one-half.

The penalties mentioned above are the lower and upper limits of the crime. In crimes of negligence, punishment is made according to the fault of the perpetrator. We will examine how to determine the penalty between these limits under a separate heading below.

HOW IS THE PUNISHMENT DETERMINED IN NEGLIGENCE CRIMES?

If negligent crimes are committed by more than one person, everyone will be responsible for their own fault. As a matter of fact, TCK 22/5 states, "In crimes committed by more than one person through negligence, everyone is responsible for their own fault. The punishment of each perpetrator is determined separately according to his fault." It is arranged as follows.

Participation in negligent crimes is not possible. Therefore, in cases where more than one person causes an undesirable result, side by side perpetration will come to the fore and each perpetrator will be punished in proportion to his own fault.

TCK 22/4. According to the article, the punishment to be imposed for a crime committed by negligence is determined according to the fault of the perpetrator. What should be understood from this provision is that the fault rate will be taken into consideration when determining the penalty between the lower limit and the upper limit. If the perpetrator's fault is less than the lower limit or closer to the lower limit, the punishment is given. As the intensity of the fault increases, the penalty is determined by approaching the upper limit.

As a matter of fact, according to a decision of the 12th Criminal Chamber of the Supreme Court of Appeals dated 2020;

"In determining the basic penalty for negligent crimes, taking into account the fault of the perpetrator, the severity of the damage caused, the manner in which the crime was committed, and the place and time of the crime, which are among the criteria set out in Articles 61/1 and 22/4 of the Turkish Penal Code, and the place and time when the crime was committed, an equitable penalty shall be imposed between the lower and upper limits stipulated in the article, in accordance with Article 3/1 of the same Law. must be judged."

Attempted manslaughter by negligence

The attempt comes to the fore in the presence of intentional crimes. Attempt is not possible in crimes committed by negligence. Therefore, it is not possible to attempt the crime of reckless homicide.

DOCTOR'S NEGLIGENCE CAUSED DEATH

The elements of negligent crimes are listed above. In cases where the perpetrator of these crimes is a doctor, the same criteria will be used to determine the occurrence of the crime.

It is accepted that healthcare professionals and doctors can foresee the outcome that will occur according to their own situation and position while performing medical activities. Moreover, in cases related to their profession, healthcare professionals will need to be distinguished from other people in terms of predictability. For this reason, especially doctors are under great responsibility in terms of negligence.

The legal order imposes a duty on the perpetrator to act carefully and attentively. In terms of medical acts, the common experience of medical science is added to these obligations. From the moment the doctor accepts the patient, he must perform diagnosis and treatment according to certain methods. Failure to comply with these methods will result in criminal liability.

In order for doctors to be held responsible for the crime of manslaughter, they must have acted contrary to their duty of care and attention and failed to foresee an outcome that they could have foreseen. Whether or not the obligation of care and attention has been violated is determined by scientific reports obtained from the Forensic Medicine Institute. The doctor's fault status is determined according to these reports.

Doctors have legal responsibilities as well as criminal responsibilities. In cases where death occurs due to doctor's error, a lawsuit for compensation due to doctor's error can also be filed.

DO NOT CAUSE DEATH IN A TRAFFIC ACCIDENT

Causing death due to traffic accidents is the most common form of murder committed by negligence. Traffic accidents occur as a result of perpetrators acting contrary to their obligations of care and attention. Therefore, negligence liability comes into question. Traffic accidents may occur due to general negligence or due to conscious negligence. The punishment of the perpetrator is determined according to the fault. However, as we mentioned above, the fault will affect the penalty determined between the lower and upper limits. In traffic accidents, the fault of the perpetrator is determined according to expert reports. A distinction is made here between primary and secondary defects. While the perpetrator with primary fault is punished according to the upper limit, the punishment of the perpetrator with secondary fault is determined according to the lower limit. In traffic accidents, an inspection should be made on the vehicle(s) involved in the accident and at the scene.

In case of conscious negligence, the perpetrator will be given a more severe punishment, as we stated above.

Some Supreme Court decisions regarding causing death in traffic accidents are as follows:

-"In the incident where the defendant, who does not have a driver's license, lost control of the steering wheel due to his speed and inexperience in a residential area, went off the road by crossing into the opposite lane with 41 meters of tire tracks, first hit a tree, a parked motorcycle on the sidewalk and pedestrians, and then crashed into the wall of a house; it should be taken into account that conscious negligence occurred." Supreme Court 9th CD. 2010/7469 K.

-"It is against the law not to increase the sentence of the defendant, who, despite the light-controlled roundabout and the road work sign ahead, approached the intersection above the speed limits and attempted to pass a vehicle and lost control of the steering wheel by increasing his speed at the intersection, even though it has been proven that he acted with conscious negligence." Supreme Court 12th CD. 2015/2969 K.

- "In a situation where it is decided that there is no need for prosecution based on incomplete investigation without obtaining a report from the Forensic Medicine Traffic Specialization Department in order to eliminate the contradiction between the accident detection report and the expert report in terms of fault situations, and where there is no lawful investigation, the objection must be accepted in order to ensure an investigation." Supreme Court 12th CD. 2018/4654 E.

CRIMINAL FINE FOR NEGLIGENT MURDER

The penalty given to the perpetrator for the crime of reckless homicide may be converted into a judicial fine, regardless of the amount.

For the crime of causing death through conscious negligence, it is not possible to convert the penalty into a judicial fine.