Turkish Penal Code (TPC) Article 89 defines the scope of the crime of negligent injury and the penalties for this crime. Traffic accidents are a common element in the formation of this crime. Additionally, the penalty for a traffic accident has a special place as it also involves the Highways Traffic Law (HTL) and the Code of Obligations (CO).

In this article, we will examine the situations of simple or conscious negligence in traffic accidents, the victim’s claims for material and moral compensation, reconciliation, and Supreme Court decisions.

Concept of Negligence and Conscious Negligence

When examining the crime of causing injury by negligence in a traffic accident, it is important to first distinguish between negligence and conscious negligence. This distinction will be one of the distinguishing factors in determining the penalty and the complaint.

Negligence is the situation of causing harm to another person as a result of carelessness or lack of precaution without intent. For example, a driver who complies with all traffic rules causing an accident due to a momentary distraction.

Conscious negligence is the occurrence of an event as a result of a person acting with the knowledge of the likelihood of a certain outcome but believing that it will not happen. For example, a driver assuming that a pedestrian crossing the street sees him from afar and will run across, not reducing speed and causing an accident.

Criminal Sanctions

The criminal sanction for the crime of negligent injury resulting from a traffic accident may vary depending on the degree of the victim’s injury and the degree of the perpetrator’s fault. According to TPC Article 89, in cases of simple injury, a prison sentence of 3 months to 1 year or a judicial fine is envisaged. However, if the injury is more severe, the penalty can be increased.

For example, if the injury causes a bone fracture in the victim, the penalty is increased by half, and if it causes the permanent loss of a bodily function or the loss of function of one of the senses or organs, the penalty is doubled.

In addition, there are penalties specific to the HTL that concern only the defendant. For example, a person who runs a red light and negligently injures someone causing a bone fracture in the victim will be penalized under TPC Article 89/2-b for negligent injury. Under HTL Article 47-b, they will also be penalized for running a red light.

Whether the penalty is imprisonment or a judicial fine is left to the discretion of the judge, considering all the elements of the accident.

What Happens If Multiple People Are Injured Negligently in a Traffic Accident?

If a traffic accident causes the negligent injury of multiple people, a prison sentence of six months to three years is imposed. This is a qualified situation regulated in TPC Article 89/4. The difference between this qualified situation and other situations of the crime is that the judge is not given the option of converting the penalty to a judicial fine.

In fact, this is stated in a Supreme Court decision: “(…) in the event that both victims… suffer injuries of a serious (5) and moderate (2) degree affecting vital functions; although the TPC’s Article 89/4 does not foresee a judicial fine directly or as an alternative, the court’s decision to impose a judicial fine directly on the defendant is contrary to the TPC’s Articles 2 and 61/10, and the decision is therefore REVERSED (…)” 12CD, Case: 2021/4196, Decision: 2022/809, Date: 08.02.2022

Factors That May Change the Amount of Penalty and Compensation

The penalty or compensation to be imposed on a person tried for the crime of negligent injury resulting from a traffic accident will be determined based on the conditions of the accident, the degree of fault, and the evidence. For example, if a motor courier hits a pedestrian and the fault is 25% with the motor courier and 75% with the pedestrian, compensations will be determined based on these fault rates. In the case of contributory negligence, the compensation will be further reduced.

Defenses such as the driver acting in accordance with traffic rules, the accident being inevitable, or the fault of a third party causing the accident will be considered in court. Additionally, the perpetrator’s efforts to assist the victim, show remorse, and try to compensate for the damage after the accident will contribute to mitigating the penalty.

Legal Process and Court Stage

When the crime of negligent injury resulting from a traffic accident is committed, the legal process usually begins with a police investigation at the scene of the incident. The police prepare a report based on the way the accident occurred, the statements of the parties, eyewitnesses, and evidence at the scene.

This report is forwarded to the prosecutor’s office, and the prosecutor initiates an investigation into the incident. If deemed necessary, the prosecutor may request expert examination and obtain a technical report on how the accident occurred.

At the end of the investigation, if the prosecutor finds sufficient evidence, he/she will prepare an indictment and file a lawsuit. During the trial process, the court will evaluate the statements of the parties, expert reports, and other evidence. The defendant has the right to defend himself/herself and may present evidence and call witnesses through a lawyer. The court will make a decision after evaluating all the evidence.

Rights of the Victim and Compensation Claims

A victim injured in a traffic accident can seek his/her rights not only through criminal proceedings but also through legal means. The victim may apply to civil courts to claim compensation for material and moral damages.

Material compensation covers the victim’s direct damages such as loss of income, medical expenses, and loss of labor.

Moral compensation is claimed for the pain, suffering, and distress experienced. Moral compensation is only paid in money.

In compensation cases, an assessment will be made based on the extent of the victim’s damage, the degree of fault of the perpetrator, and the way the accident occurred. The court may ask the victim to prove his/her damages with documents and may order an expert examination.

The Role of Traffic Insurance

Compulsory traffic insurance plays an important role in traffic accidents. In Turkey, every motor vehicle is required to have compulsory traffic insurance. This insurance covers the material damages of the parties involved in the accident within certain limits.

Injured persons can apply to the insurance company to claim their medical expenses and other material damages.

The insurance company will make the payment after evaluating the way the accident occurred and the degree of fault of the parties. However, in some cases, the insurance company may refuse to make a payment or make a low payment. In such cases, victims can apply to the insurance arbitration commission to seek their rights.

What Is the Judicial Process?

Since the penalty for negligent injury resulting from a traffic accident generally ranges from 3 months to 1 year, it is subject to the simple trial procedure. However, since the simple trial procedure applies to crimes that require a judicial fine or a prison sentence of 2 years or less, if negligent injury

is subject to a penalty of 2 years or more with aggravating circumstances, a trial with a hearing will be applied.

The simple trial procedure refers to cases tried without a hearing based on documents, and a 25% reduction in the penalty is made.

If the other party appeals this decision within 7 days, the case will continue with a hearing, provided that the penalty reduction continues.

Postponement and Deferral of Announcement of the Verdict (DAV)

Courts can decide to postpone the penalty or issue a deferral of the announcement of the verdict (DAV) for persons who commit the crime of negligent injury in a traffic accident, provided certain conditions are met. Postponement of the penalty means that the penalty is postponed for a certain period, and if the defendant does not commit another crime during this period, the penalty will not be executed. DAV means that if the defendant complies with certain obligations during a certain probation period, the penalty will not be announced and will not be recorded in the criminal record.

The Process of Reconciliation

The reconciliation process is initiated with the consent of both the victim and the perpetrator. If the crime is committed by negligence and the victim wishes to participate in the reconciliation process, the public prosecutor or the court will refer the case to the reconciliation office.

The reconciliation office appoints a mediator between the parties. The mediator brings the parties together and arranges an agreement on the compensation of the victim’s damage and the perpetrator fulfilling certain obligations.

In this process, the parties can agree on various solutions such as material compensation, an apology, or performing community service for a certain period.

Consequences of Reconciliation

If reconciliation is achieved, the perpetrator will not be penalized, and no lawsuit will be filed based on the agreement reached between the parties. The agreement is approved by the public prosecutor or the court and gains legal binding. If the agreement is not fulfilled, the process will be restarted, and a lawsuit can be filed.

Statute of Limitations

The statute of limitations for the crime of negligent injury resulting from a traffic accident is regulated by different periods in different laws, including the Turkish Penal Code (TPC), Code of Obligations (CO), and Highways Traffic Law (HTL). This situation can complicate legal processes.

Why Are There Different Statute of Limitations?

Different Legal Characteristics:
TPC: Regulates the criminal aspect of the offense, i.e., the punishment of the perpetrator.
CO: Regulates the compensation of the material and moral damages suffered by the victim.
HTL: Contains legal regulations specific to traffic accidents.

Statute of Limitations Periods and Areas of Application:

Negligent injury under the TPC: Generally, there is a statute of limitations of 8 years. However, this period may be extended depending on the nature of the crime.

Material and moral compensation under the CO: A compensation lawsuit must be filed within 2 years from the date the victim learned of the damage and the person causing the damage, and in any case, within 10 years from the date of the accident.

Material compensation under the HTL: The same periods as in the CO apply.

The judge will decide whether the statute of limitations has expired based on the legal nature of the filed lawsuit. When we examine the decisions of the Supreme Court, it is seen that courts sometimes misapply these periods and that related decisions are overturned by the Supreme Court.

Is Negligent Injury in a Traffic Accident Dependent on a Complaint?

According to the TPC, a complaint is required to initiate an investigation for the crime of negligent injury in a traffic accident. However, if the crime is committed by conscious negligence, an investigation will be initiated without a complaint.

For example, in an accident resulting in injury caused by conscious negligence due to drunk driving, the prosecutor will initiate the evidence collection process without waiting for the victim’s complaint. The only exception is injuries that can be treated with simple medical intervention (SMI). For example, an injury that can be treated with a stitch or a dressing is considered SMI, and even if the driver caused the accident with conscious negligence, the investigation will require the victim’s complaint.

Withdrawing the Complaint

The crime of negligent injury is generally a crime dependent on the victim’s complaint. Therefore, the victim’s withdrawal of the complaint can directly affect the course of the criminal case.

Consequences of Withdrawing the Complaint

Dismissal of the Criminal Case: When the victim withdraws the complaint, the criminal case may be dismissed. However, withdrawal of the complaint is not possible at every stage of the trial. If the case has not yet been filed or the trial is ongoing, withdrawal of the complaint is taken into account, and the case is dismissed.

Withdrawal at the Decision Stage: If the case has been decided by the court, withdrawal of the complaint will not prevent the execution of the given sentence. However, the victim’s withdrawal of the complaint may result in a reduction in the sentence or deferral of the announcement of the verdict.

Compensation Claims and Withdrawal of the Complaint

The victim’s withdrawal of the complaint does not eliminate the perpetrator’s legal responsibility. Compensation lawsuits can be filed for material and moral damages resulting from traffic accidents. Withdrawal of the complaint only affects the criminal case; compensation claims are evaluated independently of this situation.

What Happens If a Pedestrian Causes Negligent Injury in a Traffic Accident?

Just as drivers, pedestrians can also be punished for negligent crimes if they fail to comply with the traffic rules prescribed for them and cause the injury or death of another person due to their negligent actions.

Indeed, a Supreme Court decision overturned a court decision to the contrary: “(…) therefore, just as drivers, pedestrians can also be punished for negligent crimes if they fail to comply with the traffic rules prescribed for them and cause the injury or death of another person due to their negligent actions. For this reason, the acceptance of the Special Chamber that the pedestrian defendant has only compensation liability and no criminal liability due to the traffic accident caused by his fault is not appropriate (…)” CGK, Case: 2014/67, Decision: 2016/45, Date: 09.02.2016

For further assistance or consultation on this matter, you can contact us

Causing Injury by Negligence in a Traffic Accident