Prof. Dr. Gülsün Aygörmez
Under the Turkish Criminal Code (TCC), there are two forms of negligence: unconscious negligence and conscious negligence.
Article 22(2) TCC defines negligence, in essence, as follows: ‘Negligence is the commission of an act by failing to foresee a consequence specified in the statutory definition of an offence due to a breach of the duty of care and caution.’
Conscious negligence is regulated in Article 22(3) TCC: ‘Where a consequence foreseen by a person occurs although that person did not intend it, conscious negligence exists; in such a case, the penalty for the negligent offence shall be increased by one-third to one-half.’ Conscious negligence therefore concerns the blameworthy and duty-breaching reliance on the expectation that the foreseen consequence will not occur.
With the entry into force of the new Turkish Criminal Code, a specific sentencing rule for negligent offences was introduced for the first time in Article 22(6) TCC. Under narrowly defined conditions, where the offender has personally suffered as a result of the consequence caused by negligence, the court may reduce the sentence in cases of conscious negligence or refrain from imposing punishment in cases of unconscious negligence.
Article 22(6) provides, in substance, that where the consequence resulting from a negligent act causes the offender, exclusively because of its effects on the offender’s personal and family circumstances, to suffer to such a degree that the imposition of a penalty is no longer considered necessary, no penalty shall be imposed; in cases of conscious negligence, the penalty may be reduced from one-half to one-sixth.