What is the difference between intentional homicide and conscious negligence?

In criminal law, not only the act itself but also the intent behind that act is important. In two separate incidents resulting in the same outcome, the criminal liability of the perpetrators can be entirely different. Particularly in traffic accidents resulting in death or injury, workplace accidents, shootings, and high-risk activities, of whether the perpetrator acted with probable intent or conscious negligence is frequently debated.

The distinction between intent to kill and negligent homicide directly affects the type and amount of punishment to be applied. In both cases, the perpetrator foresees the possible outcome beforehand. The fundamental difference lies in the perpetrator's voluntary attitude towards the foreseen outcome. In intent to kill, the outcome is accepted, while in negligent homicide, there is reliance on the outcome not occurring.

What is probable intent?

Intended intent is regulated in the second paragraph of Article 21 of the Turkish Penal Code No. 5237. According to this, if a person continues to commit the act despite foreseeing that the elements defined in the law may occur, then intimidate intent exists.

For intent to exist, it is not necessary for the perpetrator to directly desire the resulting outcome. The perpetrator's primary aim may be to perform another action. However, if the person continues with their action knowing that it may result in death, injury, or another criminal offense, and accepts this consequence, then intent to exist arises.

This deliberate attitude can be explained, in everyday terms, by the mindset of "whatever happens, happens." Indeed, in Supreme Court rulings, the expression "intent regardless of the outcome" is also used for probable intent. The perpetrator acts without having serious confidence that the result will not occur and accepts the foreseen outcome.

For example, a person who randomly fires a gun in a known area where people are present may have foreseen that someone could die, even if they did not intend to kill a specific person. If the perpetrator continues to fire despite this possibility, this, along with other circumstances of the specific case, can be considered as intent to kill.

What is conscious negligence?

Conscious negligence is regulated in the third paragraph of Article 22 of the Turkish Penal Code. According to the law, conscious negligence exists when a person does not intend the foreseen consequence, but the consequence occurs. In this case, the penalty for the negligent crime is increased by one-third to one-half.

In cases of conscious negligence, the perpetrator knows that their actions could lead to a dangerous consequence. However, relying on their own experience, abilities, precautions taken, or the belief that the situation is under control, they believe the consequence will not occur. They neither desire the outcome nor accept its occurrence.

In cases of conscious negligence, the perpetrator's thought process can be described as, "Such a result might occur, but I can prevent it." However, the perpetrator's confidence that the outcome will not occur is not justified in the specific case, and the foreseen result does occur.

For example, a driver exceeding the speed limit may continue driving, relying on their driving experience, even though they foresee that they could cause an accident. If an accident occurs, depending on the circumstances, it may be considered negligent driving. However, simply exceeding the speed limit is not sufficient, by itself, to establish negligent driving or probable intent.

The Key Difference Between Intent and Negligence

The common element in both types of culpability is that the perpetrator foresaw the outcome. Therefore, the distinction is made not according to whether the perpetrator foresaw the outcome, but according to their attitude towards the foreseen outcome.

In cases of probable intent, the perpetrator continues their actions even if they do not directly desire the outcome, but accept or risk the possibility of it occurring. In cases of conscious negligence, the perpetrator, despite foreseeing the outcome, believes that it will not happen and continues their behavior based on this belief.

In other words, in cases of probable intent, the perpetrator does not have a real and concrete confidence that the outcome will not occur. In cases of conscious negligence, however, the perpetrator relies on an ability, precaution, or external factor that they believe will prevent the outcome.

The perpetrator's statement after the incident, "I didn't intend the outcome," is not sufficient, by itself, to establish conscious negligence. In criminal proceedings, an assessment of the individual's inner state is made based on the manner in which the event occurred, the means used, the duration of the act, the severity of the danger, and the perpetrator's behavior.

What criteria do courts consider?

The distinction between intent to kill and conscious negligence must be made by considering the specific circumstances of each case. A single, predetermined criterion does not provide definitive results for all cases.

The court first assesses whether the perpetrator was aware of the potential consequences. Then, it investigates whether the perpetrator took any precautions to prevent the outcome, how long the dangerous behavior lasted, whether they were previously warned, and how high the probability of the action causing the consequence was.

The nature of the tool used is also important. When using tools that pose a high risk, such as firearms, heavy machinery, or motor vehicles, the perpetrator's knowledge and experience are also evaluated. The perpetrator's professional knowledge or personal experience may indicate that they could more clearly foresee the potential outcome.

The continuation of the behavior despite the clear perception of danger or despite the perpetrator being warned may constitute a significant indication of possible intent. Conversely, if the perpetrator takes concrete and appropriate measures to prevent the outcome, but these measures are insufficient, this may support an assessment of conscious negligence.

However, the apparent taking of precautions does not always result in conscious negligence. If the precautions taken were not suitable for preventing the danger, or if the probability of the outcome occurring was extremely high, then whether the perpetrator accepted the consequences must be discussed separately.

How are differentiators made in traffic accidents?

Fatal and injury-causing traffic accidents are among the events where the distinction between probable intent and conscious negligence is most debated. Driving under the influence of alcohol, speeding, running a red light, or driving in the wrong direction are serious traffic violations. However, the presence of any of these violations does not automatically indicate the existence of probable intent.

The driver's blood alcohol level, vehicle speed, road conditions, traffic density, visibility, preceding dangers, and warnings given are all considered together. Whether the driver continued to act in the same manner despite near-misses or warnings from passengers may be significant for legal classification.

If a driver, despite foreseeing the possibility of an accident, relies on their vehicle and driving ability, then conscious negligence may be considered. Conversely, the conditions for probable intent may be debatable for a driver who continues driving without taking any precautions despite the extremely clear possibility of death or injury. Instead of drawing an automatic conclusion in each case, a separate assessment should be made based on all the evidence in the file.

Why is the difference in penalties important?

Intentional intent is a type of intent. Therefore, the provisions relating to intentionally committed crimes apply to the perpetrator. According to Article 21 of the Turkish Penal Code, in crimes committed with intentional intent that warrant life imprisonment, a prison sentence of twenty to twenty-five years is imposed. In other crimes, the basic sentence is reduced by one-third to one-half.

Conscious negligence is an aggravated form of negligence. Firstly, the negligent form of the relevant crime must be punishable by law. The determined penalty for a negligent crime is increased by one-third to one-half if conscious negligence is present. A penalty cannot be imposed under the provisions of conscious negligence for a crime whose negligent form is not separately regulated by law.

Therefore, whether the same death or injury is deemed to have resulted from intent or conscious negligence can make a huge difference in the sentence imposed.

Conclusion

The fundamental difference between probable intent and conscious negligence lies in the perpetrator's will regarding the foreseen outcome. In probable intent, the perpetrator accepts the possibility of the outcome occurring and continues the behavior despite this possibility. In conscious negligence, however, the perpetrator does not desire the outcome and acts with the confidence that the outcome will not occur.

This distinction cannot be made solely based on the perpetrator's statements or the severity of the consequences. The manner in which the incident occurred, the extent of the danger, the perpetrator's knowledge, the precautions taken, and all the evidence in the case file must be evaluated together. Since an error in legal classification can significantly alter the sentence to be applied, it is important that the investigation and prosecution process be followed by a lawyer specializing in criminal law.

Elif Sukutli