Crime of Negligent Bodily Harm in Turkish Law

In this article, we will examine the crime of negligent injury and its penalties under Article 89 of the Turkish Penal Code (TPC). We will discuss the elements of negligent injury, the differences between conscious negligence and ordinary negligence, whether it is subject to complaint, the duration of the complaint period, withdrawal of the complaint, whether it is subject to reconciliation, the statute of limitations, whether a compensation claim can be filed, the judicial fine, and an example complaint petition.

What is Negligent Injury?

Negligent injury, in legal terms, means causing harm to another person’s physical integrity due to **carelessness or negligence**. This crime, regulated under **Article 89 of the Turkish Penal Code** (TPC), occurs when the perpetrator injures another person without the intent to do so but due to their carelessness or negligence, unlike the crime of intentional injury.

What are the Elements of Negligent Injury?

The elements of negligent injury are the conditions necessary for the completion of the crime. **The elements of negligent injury are as follows:**

1. The act is committed negligently: The injury must have occurred because the perpetrator failed to take necessary precautions or acted carelessly when it was possible to foresee the result.

2. The act must be voluntary: The perpetrator must have committed the injurious act with their will.

3. The result must not be intended by the perpetrator: If the perpetrator intends or accepts the injury result, it constitutes intentional injury.

4. There must be a causal link between the act and the result: The act committed by the perpetrator must have caused the injury result.

5. The result must not have been foreseen by the perpetrator although it was foreseeable: The perpetrator must not have foreseen the injury result when it was possible to foresee it.

All these elements must be present together for the crime of negligent injury to occur. If any element is missing, the crime of negligent injury does not occur.

What is Conscious Negligence in Injury?

Conscious negligence in injury occurs when the perpetrator **does not want the foreseeable result** but causes it nonetheless. According to Article 89 of the Turkish Penal Code, if the perpetrator causes harm to another person due to carelessness or negligence while committing this crime, **the penalty is increased**. In cases of conscious negligence, the penalty is increased by one-third to half. **There is no need for a complaint in cases of conscious negligence**, and the investigation is conducted ex officio.

What is the Difference Between Ordinary Negligence and Conscious Negligence in Injury?

The difference between ordinary negligence and conscious negligence in injury essentially lies in whether the perpetrator **foresaw the result or not**. In ordinary negligence, the perpetrator **did not foresee the result**, thus causing harm to another person’s physical integrity due to carelessness or negligence. In conscious negligence, the perpetrator **foresaw the result but did not want it and failed to take necessary precautions**, which leads to an increased penalty.

An example of ordinary negligence in injury would be a worker causing injury by forgetting to put up a safety sign. The worker acted carelessly but did not foresee the result. On the other hand, an example of conscious negligence would be a driver speeding in a pedestrian area and injuring someone. The driver did not want the result but foresaw it.

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Example Court Decision on the Difference Between Ordinary Negligence and Conscious Negligence in Injury:

” (…) however, due to the effort and stress of the incident, it was stated that the existing heart vessel disease in the victim became acute, resulting in acute myocardial infarction (heart attack). Therefore, it was decided that there was a causal link between the heart attack and the incident in question and that the heart attack put the person’s life in danger. The court noted that if it is determined that the accused knew about the victim’s heart condition, the act constitutes conscious negligence injury, and if not, it constitutes ordinary negligence injury. However, this was not discussed in the decision, which is a reason for reversal (…)” 3CD, Case: 2017/4598 Decision: 2018/641 Date: 22.01.2018

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Is Negligent Injury Subject to Complaint?

The crime of negligent injury is a **complaint-based crime** under Article 89 of the Turkish Penal Code (TPC) No. 5237. However, if the injury is committed **with conscious negligence**, a **public case can be filed without the requirement of a complaint**. In such cases, an investigation and prosecution can be conducted without the victim’s complaint.

What is the Complaint Period for Negligent Injury?

The complaint period for the crime of negligent injury is **six months** from the date the victim learns of the crime and the perpetrator. While the simple form of negligent injury is subject to complaint, the crime of injury committed with conscious negligence is not subject to complaint and is investigated ex officio. If a complaint is not filed within this period, the right to file a lawsuit expires.

Withdrawal of Complaint in Negligent Injury

The crime of negligent injury is among the crimes subject to complaint. If the victim withdraws the complaint, the case is dismissed, and the penalty provisions imposed on the perpetrator are not applied. However, if the injury is committed with conscious negligence, withdrawal of the complaint does not affect the legal process, and the public case continues.

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Example Court Decision on Negligent Injury and Withdrawal of Complaint:

“(…) It is stated in Article 89/1 of the TPC that the crime of negligent injury attributed to the accused is subject to a complaint, except for the case of conscious negligence specified in the 5th paragraph of the same article, and since the complainant stated in the petition dated 13.11.2015 that he/she withdraws the complaint against the accused, the accused’s statement should be taken in accordance with Article 73/6 of the TPC on whether he/she accepts the withdrawal of the complaint, and his/her legal status should be determined accordingly. Failure to observe this constitutes a legal error that requires reversal (…)”

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What is the Statute of Limitations for Negligent Injury?

The statute of limitations for the crime of negligent injury is determined according to Article 66 of the Turkish Penal Code. The statute of limitations for **ordinary negligent injury** is **eight years**, while for **conscious negligent injury**, it is **fifteen years**. If no action is taken regarding the crime within the statute of limitations, the right to file a lawsuit expires.

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Example Court Decision on the Statute of Limitations for Negligent Injury:

” (…) Considering the type and upper limit of the penalty required by the crime charged against the accused, it is decided according to Article 66/1-e of the Turkish Penal Code No. 5237 that the eight-year principal statute of limitations period has been realized between the last reason interrupting the statute of limitations, which is the accused’s defense taken on 12.04.2011, and the appeal review date, which requires reversal of the decision (…)” 1CD, Case: 2022/6206 Decision: 2022/7075 Date: 20.09.2022

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Can a Compensation Lawsuit be Filed for Negligent Injury?

As a result of the crime of negligent injury, the victim can file a compensation lawsuit for both material and moral damages. **The victim can claim moral compensation for psychological damages as well as physical injuries.** In such cases, proving the breach of the duty of care and diligence is important for the acceptance of the compensation claim.

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Example Court Decision on Negligent Injury and Compensation Lawsuit:

” (…) The court partially accepted the case and decided to collect 50,000.00 TL compensation from the defendant. However, it is not clear from the judgment whether this amount is related to the plaintiff’s material or moral compensation claims. Therefore, the court should evaluate all the plaintiff’s claims in the case and issue a decision on each of the plaintiff’s demands positively or negatively, as required by Article 297 of the Civil Procedure Code No. 6100. Failure to do so is a procedural and legal error that requires reversal of the decision (…)” 4HD, Case: 2018/1879 Decision: 2018/5457 Date: 17.09.2018

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Is There a Judicial Fine for Negligent Injury?

Individuals who commit the crime of negligent injury can be punished with **imprisonment from three months to one year or a judicial fine** according to Article 89 of the Turkish Penal Code. A judicial fine is prescribed for negligent crimes, and it is possible to convert the imprisonment sentence into a judicial fine under certain conditions. However, **judicial fines cannot be imposed for crimes committed with conscious negligence.**

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Example Court Decision on Negligent Injury and Judicial Fine:

In cases where imprisonment and fines are prescribed as alternatives under Article 89/1 of the TPC, if imprisonment is chosen, this sentence cannot be converted into a judicial fine. However, this rule was violated in accordance with Article 50/2 of the TPC.

During the conversion of the imprisonment sentence to a judicial fine imposed on the accused, failure to specify the total number of days for which the judicial fine is based indicates a violation of Article 52/3 of the TPC.

This situation is legally incorrect and requires the reversal of the decision.

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Which Court is Responsible and Competent for Negligent Injury?

The court responsible for negligent injury is the **Criminal Court of First Instance** according to Article 11 of the “Law No. 5235 on the Establishment, Jurisdiction, and Duties of the First Instance Judicial Courts and the Regional Courts of Appeal”. The competent court is the **court of the place where the crime was committed**. Article 12 of the Criminal Procedure Code (CPC) determines the competent court in cases of negligent injury.

Penalty for Negligent Injury Resulting in Bone Fracture

Article 89 of the Turkish Penal Code (TPC) regulates and penalizes negligent injury according to various degrees.

Causing a bone fracture by negligence is evaluated under Article 89/2 of the TPC. According to this article, the penalty is increased by half in cases where the act causes a bone fracture in the victim’s body. In other words, the basic penalty of imprisonment from three months to one year or a judicial fine is applied as imprisonment from six months to two years or a higher judicial fine in cases causing more serious results like bone fracture.

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Example Court Decision on Negligent Injury Resulting in Bone Fracture:

” (…) In the incident where the accused caused the victim, born in 1938, to be injured to the extent of a moderate bone fracture by hitting him with the back part of his vehicle while reversing on a pedestrian crossing, it was noted that the accused was reversing on the road and that the collision point was on the pedestrian crossing, and it was overlooked that the provisions of conscious negligence under Article 22/3 of the TPC should be applied to the accused (…)”

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Example Complaint Petition for Negligent Injury:

The following sample complaint petition shows how the crime of negligent injury can be addressed. This petition is shaped based on common results such as traffic accidents and bone fractures and serves as a guide for similar situations. It is recommended to prepare it with the guidance of an expert lawyer for the proper and effective conduct of legal processes.

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TO THE ISTANBUL PUBLIC PROSECUTOR’S OFFICE;

COMPLAINANT:

COUNSEL:

SUSPECT:

CRIME: Negligent Injury (TPC 89)

DATE AND PLACE OF CRIME:

SUBJECT:

STATEMENTS

My client was injured by a vehicle that violated the red light while crossing the street when the pedestrian light was green on Şemsettin Günaltay Street in Kadıköy on 10/07/2024. My client was thrown to the ground by the impact and suffered a fracture in his left arm. (Photos are attached)

My client was immediately taken to the hospital by ambulance and diagnosed with a radial fracture in his left arm after an examination. (The hospital report and conversations are attached) Due to the incident, my client is unable to use his arm for a long time, negatively affecting his daily life.

The driver who caused the accident only apologized at the scene but did not accept to pay any compensation or medical expenses. My client experienced pain and suffering in the initial days after the incident and was also psychologically affected.

Considering all these reasons, the driver failed to fulfill the duty of care and diligence, constituting the material and moral conditions of the crime of negligent injury under Article 89 of the TPC.

LEGAL REASONS: TPC and all relevant legal regulations.

LEGAL EVIDENCE: Camera recordings, witnesses, and all relevant legal evidence.

CONCLUSION AND REQUEST: For the reasons explained above, I respectfully request on behalf of my client that an investigation be initiated against the suspect, and a public case be filed as a result of the investigation.

Complainant’s Counsel:

Lawyer Ozan Soylu

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