Turkish criminal law distinguishes sharply between offenses committed with intent and those resulting from a failure to exercise the required degree of care. While intentional bodily harm falls under Article 86 of the Turkish Penal Code No. 5237 and reflects a deliberate choice by the perpetrator to inflict injury, negligent bodily harm is governed by Article 89 of the same code and addresses situations in which the victim’s injury was an unintended but foreseeable consequence of careless or inattentive conduct. The offense arises with particular frequency in traffic accidents, workplace incidents, and cases of medical error, making Article 89 one of the most commonly applied provisions in Turkish criminal practice.
The protected interest underlying Article 89 is the physical integrity and health of the individual. Turkish law treats bodily harm as an offense against the person regardless of whether it was intentional or negligent, but the legal consequences differ substantially between the two. The penalties for negligent bodily harm are considerably lower than those applicable to intentional injury, and the procedural framework includes additional protections for the accused, including a complaint requirement and the mandatory application of reconciliation procedures before prosecution may proceed.
The Concept of Negligence Under Turkish Criminal Law
The general definition of negligence in Turkish criminal law is established by Article 22 of the Turkish Penal Code. Negligence occurs when a perpetrator causes a foreseeable harmful result through conduct that violates the duty of care and attention required by the circumstances, without intending that result. The fundamental characteristic that distinguishes negligence from intentional conduct is that the perpetrator does not will the harmful outcome. The injury occurs because the perpetrator failed to foresee what a reasonably attentive person in the same situation would have foreseen, or because the perpetrator chose to disregard an accepted standard of careful behavior.
Article 22 of the Turkish Penal Code: A person acts negligently if they cause an unintended result by acting in breach of the duty of care and attention required by the circumstances. Offenses committed through negligence are only punishable where the law expressly provides for liability in such cases.
Turkish criminal law recognizes two distinct forms of negligence, each with different procedural and substantive consequences. Simple negligence, referred to in Turkish law as unconscious negligence, occurs when the perpetrator neither foresees nor intends the harmful outcome. The perpetrator acts carelessly and fails to anticipate the risk that their conduct creates. Conscious negligence, by contrast, occurs when the perpetrator actually foresees the possibility that their conduct may cause injury, but proceeds under the mistaken assumption that the harmful result will not materialize, relying on their own skill, experience, or chance. A driver who runs a red light without thinking about the risk exemplifies simple negligence, while a driver who consumes alcohol and takes the wheel while believing they are still in control of the vehicle exemplifies conscious negligence.
The significance of this distinction under Article 89 is considerable. The form of negligence present in a given case affects both the penalty applicable to the offense and the procedural rules governing its prosecution.
The Basic Form of Negligent Bodily Harm
Article 89, paragraph 1, of the Turkish Penal Code defines the basic form of the offense. A person who negligently causes another person physical pain or impairs their health or perceptual capacity is subject to the penalty established by this provision. The definition does not impose any particular threshold of physical injury beyond what is described, meaning that even relatively minor harm caused by negligence may fall within the scope of the provision.
Article 89, paragraph 1, of the Turkish Penal Code: A person who negligently causes physical pain to another or impairs the health or perceptual capacity of another shall be sentenced to imprisonment from four months to two years, or to a judicial fine.
The penalty is expressed as an alternative between a term of imprisonment and a judicial fine, leaving the court with discretion to choose between the two depending on the nature of the case, the degree of negligence demonstrated, the severity of the injury suffered by the victim, and the personal circumstances of the accused. When a term of imprisonment is imposed, Turkish law permits its conversion to a judicial fine in cases of negligence, even when the imprisonment is of long duration, unless the offense was committed with conscious negligence.
Aggravated Forms Under Paragraphs 2 and 3
The Turkish Penal Code establishes a graduated system of aggravated penalties when negligent bodily harm produces consequences more serious than simple pain or a minor impairment of health. These aggravated outcomes are set out in paragraphs 2 and 3 of Article 89, with two tiers of aggravation depending on the severity of the consequence.
Under paragraph 2, the penalty prescribed in paragraph 1 is increased by one half when the negligent act results in one of the following outcomes: a permanent weakening of the function of one of the victim’s senses or organs; a permanent difficulty in the victim’s speech; a visible permanent scar on the victim’s face; a fracture or dislocation of a bone; causing a pregnant woman to give birth prematurely; or placing the victim’s life in danger.
Article 89, paragraph 2, of the Turkish Penal Code: If the negligent act causes a permanent weakening of the function of one of the victim’s senses or organs; permanent difficulty in speech; a visible permanent scar on the face; a fracture or dislocation of a bone; premature birth of a pregnant woman’s child; or places the victim’s life in danger, the penalty prescribed in the first paragraph shall be increased by one half.
The bone fracture provision is among the most frequently invoked in Turkish criminal courts, particularly in traffic accident cases. However, the mere fact that a fracture has occurred does not automatically trigger the aggravated penalty. Courts and forensic medical experts assess whether the fracture required simple medical intervention, such as immobilization with a cast, or whether it required surgical intervention and left lasting functional consequences. The distinction between a fracture that qualifies as a simple aggravated circumstance and one that constitutes a more severe consequence affects which paragraph of Article 89 applies.
Paragraph 3 of Article 89 provides for a doubling of the base penalty when the negligent act produces even more severe outcomes. These include the permanent loss of function of one of the victim’s senses or organs; the loss of the ability to speak permanently; permanent changes to the victim’s facial appearance; the onset of an illness that cannot be cured or that threatens the victim’s life over the long term; the permanent impairment of the victim’s capacity for work; placing the victim in a vegetative state; or causing a pregnant woman to lose her unborn child.
Article 89, paragraph 3, of the Turkish Penal Code: If the act causes the permanent loss of function of one of the victim’s senses or organs; the permanent loss of the ability to speak; a permanent alteration in the appearance of the face; an incurable illness or one that poses a long-term threat to life; a permanent reduction in the capacity for work; a vegetative state; or the loss of an unborn child, the penalty prescribed in the first paragraph shall be doubled.
The forensic medical report prepared by the Council of Forensic Medicine or a designated forensic expert is central to the court’s determination of which paragraph applies. Courts rely on these reports to classify the injury in terms of the medical outcome it produced and to situate it within the statutory framework established by Article 89.
Multiple Victims
When a single negligent act causes bodily harm to more than one person, a separate penalty framework applies under paragraph 4 of Article 89. In this scenario, rather than applying the base penalty of the first paragraph and then escalating it through the aggravation mechanisms of paragraphs 2 and 3, the court imposes a consolidated sentence within a distinct range.
Article 89, paragraph 4, of the Turkish Penal Code: If the act results in bodily harm to more than one person, the perpetrator shall be sentenced to imprisonment from nine months to five years.
This provision is particularly relevant in traffic accidents involving multiple occupants or pedestrians. When a negligent act injures several people simultaneously, the court does not multiply the sentence for each individual victim but instead applies the consolidated range of paragraph 4. The degree of injury suffered by each victim, the nature of the negligent conduct, and whether conscious negligence was present will all influence where within the range of nine months to five years the court sets the sentence.
Conscious Negligence and Its Effect on Penalties
When negligent bodily harm is committed with conscious negligence rather than simple negligence, the penalty applicable under any of the paragraphs described above is increased by between one third and one half. The mandatory nature of this increase reflects the legislative judgment that a person who foresees the risk of harm and proceeds anyway bears a greater degree of moral culpability than one who fails to recognize the risk at all.
The boundary between conscious negligence and indirect intent is one of the most contested issues in Turkish criminal law and frequently arises in serious traffic cases. Courts examine whether the perpetrator genuinely believed that the harmful outcome would not occur, which is the hallmark of conscious negligence, or whether the perpetrator accepted the possibility of harm as an outcome they were willing to risk, which establishes indirect intent and shifts the case from Article 89 into the framework of intentional bodily harm under Article 86 or intentional homicide under Articles 81 and 82 if death results. A Court of Cassation decision from 2022 confirmed that a perpetrator driving at ninety percent alcohol concentration who injured a passenger was correctly classified as acting with conscious negligence, while stopping short of the threshold for indirect intent.
Complaint Requirement and Prosecution
One of the distinctive procedural features of negligent bodily harm under Turkish law is that the offense is, as a general rule, subject to a complaint by the victim or the victim’s representative. Without a valid complaint, the public prosecutor may not initiate or continue an investigation or prosecution. The complaint period is six months from the date on which the victim or their representative learned both of the injury and of the identity of the perpetrator. Withdrawal of the complaint at any point before the judgment becomes final results in the dismissal of the case.
Article 89, paragraph 5, of the Turkish Penal Code: The investigation and prosecution of negligent bodily harm shall be subject to a complaint. However, where the offense is committed with conscious negligence, a complaint shall not be required, except in cases falling under the first paragraph.
The exception established by paragraph 5 is significant. When the negligent harm was committed with conscious negligence and the outcome falls within the scope of paragraph 2, 3, or 4, rather than paragraph 1 alone, prosecution proceeds ex officio, meaning that the public prosecutor initiates the case without requiring any action by the victim. This rule prevents the withdrawal of complaints in more serious cases from shielding perpetrators from criminal accountability.
Mandatory Reconciliation Procedures
All forms of negligent bodily harm under Article 89, including those subject to prosecution without complaint, are covered by the mandatory reconciliation framework established by Article 253 of the Code of Criminal Procedure. Reconciliation is a structured process in which a neutral reconciliator appointed by the prosecutor’s office or the court facilitates negotiations between the perpetrator and the victim, with the aim of reaching a voluntary agreement on reparation.
Before the public prosecutor may file an indictment in a negligent bodily harm case, the file must be referred to the reconciliation bureau and the procedure must be completed. If reconciliation is achieved, the public case is dropped and no further criminal proceedings are possible. If reconciliation fails, the prosecution proceeds in the ordinary manner. Courts have consistently held that failure to complete the mandatory reconciliation procedure before filing an indictment constitutes a procedural defect that requires the case to be remanded for compliance.
The reconciliation mechanism is available even in cases of conscious negligence and even in cases where the complaint requirement does not apply. This means that in principle, a perpetrator who caused serious bodily harm with conscious negligence, and who would otherwise be subject to ex officio prosecution, may still avoid a formal conviction if a reconciliation agreement is reached with the victim. The agreement typically involves financial compensation, and the amount is negotiated freely between the parties.
Common Contexts: Traffic Accidents, Workplace Incidents, and Medical Error
Traffic accidents are by far the most frequent context in which Article 89 is applied in Turkish criminal practice. When a vehicle collision results in injury to a driver, passenger, cyclist, or pedestrian due to the negligent conduct of one of the parties, the investigation proceeds under Article 89. The fault assessment carried out by traffic police and the expert opinions prepared during the investigation form the basis for determining whether the conduct of the accused constituted negligence, and if so, whether it was simple or conscious.
Workplace accidents involving injury to employees or third parties also commonly give rise to prosecutions under Article 89. Employers, site supervisors, safety officers, and other individuals responsible for ensuring compliance with occupational health and safety regulations may face criminal liability when a workplace accident is found to have resulted from a failure to implement or enforce the required safety measures. In such cases, the causal chain between the safety failure and the injury must be established with particularity, and expert opinions on the applicable industry standards play a central role in the assessment.
Medical error cases constitute a third significant category. When a physician, dentist, nurse, or other healthcare professional causes patient injury through a failure to apply the standard of care expected in their specialty, the conduct may be classified as negligent bodily harm under Article 89. Turkish courts assess such cases with the assistance of expert panels convened by the Council of Forensic Medicine, which evaluate whether the healthcare professional’s conduct deviated from the accepted standards of the relevant specialty and whether that deviation caused the specific injury suffered by the patient.
Sentencing Discretion and Penalty Conversion
Within the penalty ranges established by Article 89, the court exercises considerable discretion in fixing the appropriate sentence. The degree of negligence, the foreseeability of the harm, the severity of the injury, the conduct of the accused after the incident, and any mitigating circumstances recognized under the general provisions of the Turkish Penal Code all influence the final sentence. General mitigating circumstances under Article 62 of the code allow the court to reduce any sentence by up to one sixth.
For sentences of imprisonment imposed under Article 89 in cases of simple negligence, the conversion of the sentence to a judicial fine is permissible under Article 50 of the Turkish Penal Code. The court evaluates the personal and economic circumstances of the accused and may substitute a daily fine for the term of imprisonment, with the number of days and the daily rate adjusted to reflect the accused’s financial situation. This conversion option is not available when the offense was committed with conscious negligence.
Suspended sentences are also a possibility in cases involving first-time offenders where the court determines that the accused is unlikely to reoffend. A suspended sentence does not result in the actual service of a prison term and instead subjects the accused to a probationary period during which they must comply with any conditions set by the court. If the conditions are met and no further offense is committed during the probationary period, the sentence is permanently suspended and has no further effect.
Criminal Defense Lawyer in Istanbul – Attorney Ozan Soylu
Attorney Ozan Soylu is a practicing lawyer based in Istanbul, providing criminal defense representation in negligent bodily harm cases arising from traffic accidents, workplace incidents, and other contexts before Turkish criminal courts. His practice covers the assessment of negligence and fault, the classification of injuries for sentencing purposes, representation during reconciliation procedures, and defense at all stages of criminal proceedings under Article 89 of the Turkish Penal Code.
For all legal matters concerning Turkish law, you can reach out to Attorney Ozan Soylu. Legal consultancy and representation services are provided with a dedicated approach for foreign nationals. To submit your questions, contact us.
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