Will a Mother or Father Who Loses Their Child Be Punished? An Evaluation of Article 22/6 of the Turkish Penal Code in Light of the Supreme Court Decision

Every year, tragic incidents occur where parents unintentionally cause the death of their children for various reasons. Sometimes it happens during a vehicle reversing maneuver, sometimes due to insufficient supervision at a pool or the sea, and sometimes due to a lack of safety measures at home, resulting in irreparable losses. Following such incidents, one of the most frequently asked questions in the public is: "Will a mother or father who causes the death of their own child be punished?"

There is no single answer to this question. The Turkish Penal Code acknowledges that in some exceptional circumstances, the severe emotional distress suffered by the perpetrator may render further punishment unnecessary. However, the application of this depends on the fulfillment of certain conditions.

What does Article 22/6 of the Turkish Penal Code regulate?

Article 22/6 of the Turkish Penal Code reads as follows:

“If the consequence caused by a negligent act has resulted in the perpetrator suffering such hardship, solely due to their personal and family circumstances, that imposing a sentence is unnecessary, no punishment shall be given. In cases of conscious negligence, the sentence may be reduced by one-third to one-half.”

This provision is an exceptional regulation in criminal law. The aim here is to assess, in each specific case, whether subjecting a person who has already suffered severely due to emotional distress to further criminal sanctions serves the sense of justice.

However, this provision should in no way be interpreted as meaning "parents who lose their child will not be punished." Each case must be evaluated within its own specific circumstances.

The Real Case Examined by the Supreme Court

In the case that was the subject of the Supreme Court Criminal General Assembly's decision dated June 25, 2020, numbered E. 2018/135, K. 2020/317, the mother and father went to the seaside with their children. After leaving the children on the beach for a while and going for a walk, the parents returned to find their children missing. Following a search, it was determined that the two children had drowned in the sea.

Following an investigation conducted by the public prosecutor's office, a public lawsuit was filed against the parents on the grounds that they committed the crime of causing death by negligence due to their failure to adequately supervise their children.

The main debate during the trial was not about the parents' fault, but rather whether Article 22/6 of the Turkish Penal Code could be applied due to the loss of their child.

The case was reviewed by the Criminal General Assembly of the Court of Cassation after evaluations by various courts of first instance.

Assessment by the General Assembly of Criminal Courts

The ruling primarily emphasized that Article 22/6 of the Turkish Penal Code is an exceptional provision. For a decision not to impose a penalty to be made, it is not sufficient for the perpetrator to merely feel remorse. The suffering experienced must be severe enough to render punishment unnecessary.

The General Assembly of Criminal Courts also drew attention to the following important principles:

• The crime must have been committed negligently.
• If the incident constitutes negligent conduct, there may be only a reduction in punishment, not impunity.
• The victimization suffered by the perpetrator should be assessed using objective criteria.
• The judge must make a decision taking into account all the specifics of the case.

Therefore, the application of Article 22/6 of the Turkish Penal Code is not automatic; each case is evaluated within the framework of its own evidence and circumstances.

Why is the difference between negligence and conscious negligence important?

One of the most important legal debates in such cases is determining whether the perpetrator acted with simple negligence or with conscious negligence.

In simple negligence, the person violates the duty of care and diligence, but does not foresee the consequences.

In cases of conscious negligence, the person acts despite foreseeing the danger, relying on the belief that the outcome will not occur.

The legislator has also recognized the importance of this distinction and, in cases of conscious negligence, has not directly provided for impunity under Article 22/6 of the Turkish Penal Code, but has only allowed for a reduction in punishment.

Therefore, the manner in which the incident occurred, the precautions not taken, the perpetrator's behavior, and the degree of culpability are of great importance.

Shouldn't every tragic event be punished?

No.

For example;

• A parent accidentally hit their child with their car while parking
• A mother or father who loses their child because they failed to take safety precautions at home,
• Parents who fail to provide adequate supervision at the pool or beach,

This may lead to different legal consequences.

Court;

• the way the event occurred,
• defect rate,
• measures that can be taken
• the perpetrator's psychological and family situation,
• the criminal law consequences of the event

They make decisions after evaluating the situation together.

The purpose of this regulation

The fundamental purpose of criminal law is not merely to punish. It is also to ensure justice and protect the public conscience.

In some cases, the perpetrator bears a very heavy moral burden for the rest of their life due to the resulting consequences. Considering the magnitude of the pain experienced by a mother or father who has lost their own child, the legislator has acknowledged that in exceptional circumstances, additional punishment may be deemed unnecessary.

However, this approach does not eliminate the parents' duty of care and attention. Article 22/6 of the Turkish Penal Code is an exceptional provision that can only be applied in extraordinary and specific cases.

Conclusion

Article 22/6 of the Turkish Penal Code is one of the special provisions aimed at ensuring a balance of justice and fairness in criminal law. Whether a mother or father who negligently causes the death of their own child will be punished cannot be determined solely by looking at the resulting outcome.

The decision of the Supreme Court Criminal General Assembly dated June 25, 2020, numbered E. 2018/135, K. 2020/317, also shows that the decision to be made in this matter should be made by evaluating the nature of the negligence, the manner in which the incident occurred, and the personal harm suffered by the perpetrator together. Therefore, in order to correctly determine the legal outcome in similar cases, it is of great importance to examine each case within the framework of its own characteristics.