- Turgay ALTAY
- Aug 14
- 6 min read
INTENTION AND NEGLIGENCE IN CRIMINAL LAW
ENTRANCE
In the context of intent and negligence, which are moral elements of criminal law, liability based on intent can address the issues of direct intent and probable intent. In liability based on negligence, there is a distinction between conscious negligence and simple negligence. Intent and negligence are examined in Articles 21 and 22 of the Turkish Penal Code.
DIRECT CAST
Direct intent is when a person knowingly and willingly commits an act defined by the legal definition of a crime. In this case, the perpetrator acts knowingly and willingly of the consequences. For example, if a person is shot in the head with a gun, there is direct intent to commit murder. A perpetrator who acts with direct intent is punished according to the legal definition of the crime.
POSSIBLE CAST
Possible intent, on the other hand, refers to the perpetrator acting with a "no matter what" mindset, even though the outcome in the legal definition of the crime is likely to be "foreseeable." For example, if a driver swerves to deliberately cause an accident, a conviction should be reached for direct intent on behalf of each injured person involved in the accident. However, if one of two racing drivers rams the other on a road where it's possible to swerve, intending to inflict damage, even if the primary purpose of the ramming is to overtake the vehicle they're competing with, the act is still considered probable intent because the perpetrator is willing to risk the vehicle's departure. Similarly, a perpetrator who shoots an opponent in the chest with the intent to injure, despite foreseeing the possibility of a bullet hitting the opponent's heart, can also be held liable under probable intent. A perpetrator acting with probable intent is punishable by life imprisonment for crimes punishable by aggravated life imprisonment. Crimes punishable by life imprisonment are punishable by 20 to 25 years in prison. For other crimes, the sentence is reduced by one-third to one-half.
SIMPLE TAKSIR
If the perpetrator fails to foresee a foreseeable outcome and causes it to occur, liability for simple negligence arises. In this case, the perpetrator's actions constitute a breach of the duty of care and diligence. The terms "ordinary negligence" and "reckless negligence" are also used for simple negligence. For example, if an employer who employs workers without taking occupational safety measures causes an injury as a result of a workplace accident, they are liable for simple negligence for injury. Alternatively, if a person shooting at a target on a shooting range where all safety measures are in place unforeseen and a bullet ricochets, causing injury to another person on the range, they may be held liable for simple negligence for injury.
CONSCIOUS NEGLIGENCE
Deliberate negligence occurs when a perpetrator, despite not wanting the intended outcome, commits an act by violating the rules or relying on their personal abilities. For example, if a driver overtaking on a road where overtaking is prohibited causes an accident and ultimately kills someone, they will be liable for conscious negligence. Similarly, if a perpetrator confident in their shooting skills fires at an adversary in a group setting, and the perpetrator, without a "whatever" thought, or even while the perpetrator was thinking of not shooting anyone other than their adversary, accidentally hits the person next to them, the perpetrator will be liable for conscious negligence injuring the person next to them. In cases of conscious negligence, the penalty for the crime of negligence is increased from one-third to one-half.
DISTINGUISHMENT BETWEEN DIRECT CASTE AND POTENTIAL CASTE
In direct intent, the perpetrator commits the act individually and willingly, while in probable intent, the perpetrator commits the act despite foreseeing the consequences of the crime as defined by law. In direct intent, there are elements of knowledge and will, while in probable intent, the prevailing mindset is "no matter what." For example, a perpetrator who fires a gun in a crowded area may
Let's say a person fires three shots with the intent to kill, two of which hit bystanders, and one of which kills his opponent. In this case, the perpetrator will be liable for intentional homicide for killing his opponent. If the perpetrator fired the shots with the motive of "no matter what" for the bullets that hit bystanders, he will be liable for the harm he caused to bystanders with probable intent.
THE DIFFERENCE BETWEEN SIMPLE NEGLIGENCE AND CONSCIOUS NEGLIGENCE
The most significant difference between simple negligence and conscious negligence is the perpetrator's foreseeability of the outcome. In conscious negligence, the foreseen outcome is unintended by the perpetrator or is achieved based on reliance on personal abilities, while in simple negligence, the outcome is unforeseeable due to a breach of the duty of care and diligence. Conscious negligence applies to all consequences resulting from violations of the rules.
THE DIFFERENCE BETWEEN POSSIBLE INTENTION AND CONSCIOUS NEGLIGENCE
In both probable intent and conscious negligence, the perpetrator foresees the outcome. In conscious negligence, the perpetrator expects the foreseen outcome not to occur, while in probable intent, the perpetrator accepts and accepts this outcome. In probable intent, the perpetrator accepts that the foreseen outcome will occur and acts without making any effort to prevent it. In conscious negligence, the perpetrator acts with the belief that the foreseen outcome will not occur, relying on luck, other factors, or their knowledge and experience, despite foreseeing the outcome.
COURT OF APPEALS DECISIONS ON POSSIBLE INTENTION AND WITNESSFUL NEGLIGENCE
COURT OF COURT 1. CD 2021 / 12105 E. 2021 / 15162 K. 21.12.2021 T.
According to the court's decision, it is emphasized that in cases specified in Article 24 of the Turkish Penal Code, one must act within the limits of the law to avoid punishment. In this incident, the defendant, a law enforcement officer, is criminally responsible for creating a situation that resulted in death rather than apprehending a person injured. Pursuant to Article 27/1 of the Turkish Penal Code, despite the absence of any intention to the contrary, the defendant's actions are considered conscious negligence. It is stated that despite foreseeing the possibility of his shots hitting lethal targets, the defendant continued firing, leading to an unintended consequence. Therefore, the defendant's criminal liability arises indirectly through negligence, as these limits were unintentionally exceeded.
TR COURT OF COURT 1.CD 2021/ 7719 E. 2021 / 15255 K. 23.12.2021 T.
The incident occurred when the defendants opened fire on the victims with a shotgun while they were passing by in a vehicle. The defendants fired a total of five shots at the victims from a distance of approximately 10 to 20 meters, injuring the victims. The victim suffered injuries that could have healed with simple medical intervention, while the other victims suffered more serious injuries. The court emphasized that, considering the shotgun used and the circumstances of the incident, the defendants' actions against the victims constituted the crime of attempted premeditated murder. However, the court file stated that this crime was incorrectly characterized as premeditated wounding. Consequently, it was decided that the defendants' actions should have been considered premeditated murder, and that the verdict should have been overturned due to this mischaracterization. The request for overturning, the grounds of appeal of the defendants' defense counsel, and the Ministry's representative who participated in the case were accepted, and the relevant criminal court's judgment was overturned pursuant to Article 302/2 of the Code of Criminal Procedure.
TR COURT OF COURT CGK 2019 / 314 E. 2021 / 373 K. 09.09.2021 T.
In the incident where the defendant, who was driving on the Trabzon-Giresun highway on the night of the incident, entered the wrong direction on the divided road located in the Adacık neighborhood of the Beşikdüzü district, driving in the emergency lane with his headlights on and had 2.70 promil alcohol, hit the vehicle of ..., who was driving in the section reserved for them on the same road, causing injuries to the participants in the vehicle and the death of ...; it was understood that the defendant knowingly entered the section used by traffic vehicles coming from the opposite direction on the road where warning direction signs and lines were duly located, continued driving his vehicle despite knowing that he was driving in the opposite direction, although he foresaw that he could cause injury or death by hitting a vehicle coming from the opposite direction, he relied on his experience, his driving skills, the fact that there would be light traffic due to the night, especially his luck and that those coming from the opposite direction would act carefully to protect themselves, and with such an assumption, he acted contrary to the obligation of objective care and diligence, causing the outcome that he foresaw but did not want, and did not accept and did not desire the outcome; It has been concluded that the defendant, who did not act in accordance with his objective duty of care in a way that prevented the outcome he did not want to occur but foresaw, acted with conscious negligence in his action that resulted in the death of one person and injuries to more than one person.
SOURCE
Karal law firm. (access date 05.12.2024). https://karalhukuk.com/2023/04/07/taksir-
inter-caste-differences/
Attorney Baran Doğan. (Access date 05.12.2024). https://barandogan.av.tr/blog/ceza-hukuku/
What is the difference between conscious negligence and possible intent? TCK 21
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