What is conscious negligence?

What is Negligence? | Izmir Criminal Lawyer

KnowçWhat is negligence?

A crime occurs when the perpetrator intentionally (knowingly and willingly) commits the criminal act or through negligence. Conscious negligence, on the other hand, occurs when the perpetrator, despite not intending the foreseen outcome, acts by violating a rule or relying on factors such as chance or personal ability, resulting in the outcome.

For example, a person who causes a death by overtaking on a road where overtaking is prohibited is punished for causing death through conscious negligence. This is because, although the perpetrator did not intend for the outcome to occur, they could foresee the result.

Law No. 5237 Turkish Penal Code’According to the law, a crime is, as a rule, committed with "intent." Unless the law explicitly defines negligent acts as crimes, negligent acts cannot be considered crimes. For example, the crime of damaging property is a crime that can only be committed intentionally. A perpetrator who intentionally throws a stone at someone's car..., Turkish Penal Code According to Article 151, the perpetrator is punishable for the crime of damaging property. However, even if a cigarette thrown out of a window without being extinguished enters a car through the window and causes a fire, the perpetrator cannot be punished because the crime of damaging property is not a crime that can be committed negligently. The perpetrator only incurs liability for damages under private law.

Punishment for Crimes Committed Through Negligence Why?

The text discusses the existence of conscious negligence when a consequence occurs despite the person not wanting it. In this case, the penalty for the negligent crime is increased by one-third to one-half. For example, if a sentence of 3 years imprisonment is imposed for negligent homicide, the sentence could increase to 4.5 years in cases of conscious negligence. This is because in cases of conscious negligence, the perpetrator can foresee the consequence and carries out the criminal act while accepting the risk of that consequence occurring.

Here are some examples of crimes committed through conscious negligence:

Alkollü araç kullanarak trafik kazası nedeniyle ölüme neden olma, kırmızı ışıkta geçerek bir araçla çarpışarak ölüme neden olma, failin odasındaki masa üzerinde dolu bir tabanca bırakması  herhangi bir kişinin o tabanca ile yaralanabileceğini öngörebilir durumda olması, diğer unsurlarının da bulunması koşuluyla taksirin varlığı için yeterlidir. Kırmızı ışıkta geçen sürücünün sebep olduğu yaralanma neticesinden bilinçli taksirle sorumlu tutulabilmesi için, örneğin kalabalık yol durumunu ve trafik ışıklarını ya da kavşağa giriş yapmakta olan bir başka aracı fark etmiş olması ve dolayısıyla zararlı bir neticenin meydana gelebileceğini öngörmüş olması gerekir.

An important point to note regarding conscious negligence is that the issue of the perpetrator foreseeing the outcome should not be confused with the outcome being foreseeable. Foreseeing is an indication of a high risk, as it relates to a concrete situation. Therefore, for the harmful outcome to be considered foreseen, it is not sufficient for the perpetrator to be aware that they are generally engaging in dangerous behavior; they must have mentally visualized the concrete danger their behavior poses to a specific subject. For example, this is the case of a driver who does not slow down even though they see someone whose crossing is uncertain, or a driver who drives very fast in a narrow, crowded street; a driver who is aware that the rules of conduct dictate that they slow down, but believes they can prevent the potential harmful consequences through their abilities.

Doctrine and YArgıtay Kamong them Gore Taxirin Uelements ŞThey are;

• The fact that the act is a crime that can be committed through negligence,
• The voluntariness of the movement,
• The outcome is not voluntary,
• The existence of a causal link between the action and the result,
• The outcome is described as being foreseeable, yet not foreseen by the perpetrator.

KnowçRegarding Negligence ÖExample Supreme Court Decision:

“Although probable intent and conscious negligence overlap in terms of the element of foresight, they differ in terms of the element of will. The characteristic that distinguishes probable intent from conscious negligence is the acceptance of the foreseen or probable outcome, and the perpetrator's acting without any confidence that the typical outcome they foresaw would not occur. In other words, if the perpetrator says, 'I would have carried out the action anyway,' it is probable intent; if they say, 'I would not have carried out the action if I had known that the outcome would occur,' it is conscious negligence. The distinguishing criterion between simple negligence and conscious negligence is that in negligence, the perpetrator fails to foresee the foreseeable outcome, while in conscious negligence, they have foreseen this outcome. In conscious negligence, the resulting outcome is foreseen by the perpetrator but not desired. Indeed, since the situation of someone who acts relying solely on chance or other factors, or even their own skill or knowledge, despite foreseeing the outcome, cannot be equated with the situation of someone who did not foresee it, the person who foresees the outcome is obligated, regardless of the circumstances, not to take the action that would bring about that outcome.” (Yargıtay 12. Ceza Dairesi,  2017/257 Esas, 2018/12091 K. ve 12.12.2018 Tarih)

In conclusion, we can speak of conscious negligence if the perpetrator acts hoping that the foreseen outcome will not occur, but the outcome does occur. In our opinion, since intent is related to the perpetrator's inner world, each case should be evaluated according to the specific circumstances of the case, by examining the perpetrator's actions in reflecting this inner world to the outside world.

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