TCK Art. 88 Commission of Intentional Injury by Omission

In Istanbul and throughout Turkey, instances where a person knowingly fails to perform a duty of protection, supervision, care, or intervention—which they are obligated to perform—without engaging in an active attack, resulting in harm to another person's bodily integrity, may give rise to severe legal and criminal liability. This situation constitutes intentional injury committed by omission pursuant to Article 88 of the Turkish Penal Code (TCK) .

TCK Art. 88 may seem paradoxical at first glance: A person does nothing, yet is held liable for the crime of intentional injury. However, criminal law traditionally examines the active conduct of the perpetrator (commission) . Nevertheless, modern criminal law has accepted that the intentional failure to act by persons under a duty of guarantee (garantörlük) can be punished to the same extent as active conduct.

Criminal liability in cases of injury by omission under TCK Art. 88is established based on the specifics of the case, stemming from statute, contract, family law, professional duties, and prior risk creation by the perpetrator. This guide details the sources of the duty of guarantee, the distinction between intent and negligence, the causal link, Court of Cassation precedent, and investigation strategy.

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Legal Qualification: The Rationale and Conditions of TCK m.88’s

TCK m.88, under the title “Commission of intentional injury by omission” provides the following provision: In the event that intentional injury is committed by omission, the penalty to be imposed may be reduced by up to two-thirds. At the same time, the article clarifies that the conditions regarding murder by omission under TCK m.83 shall be taken into consideration in practice.

The meaning and conditions of application of this provision are as follows:

Condition	Meaning	Legal Consequence
Duty of Guarantorship	The perpetrator has a legal obligation to protect the victim due to the law, contract, family law, profession, or a previously created danger	If there is no obligation, TCK m.88 cannot be applied
Failure to Perform the Required Action	The perpetrator knowingly fails to perform the action that they know of and are capable of performing	Remaining passive results in the consequence of injury
Consequence of Injury	As a result of the omission, the victim's bodily integrity is harmed (pain, deterioration of health, impairment of perceptual capacity)	It is characterized pursuant to TCK Art. 86 or Art. 87
Causal Link	There must be a direct connection between the perpetrator's failure to intervene and the result of the injury	Liability does not arise if the result cannot be prevented even if an intervention is made
Intent (TCK Art. 21)	The perpetrator knows, desires, or accepts the foreseen result of the injury	Intent must be present instead of negligence (omission)

Critical Warning: Not every omission and every failure to assist constitutes a punishable crime within the scope of TCK Art. 88. The perpetrator must possess a special legal obligation to protect the victim. For instance, a passerby, even if they fail to help an injured person, may be morally condemned; however, they cannot be held liable under TCK Art. 88. Conversely, a parent, a physician responsible for a patient's treatment, or a person who has entered into a care contract may be held liable under TCK Art. 88 if they knowingly fail to fulfill their obligation to intervene.

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Sources of the Duty of Guarantorship

The primary and most crucial condition for the application of TCK Art. 88 is the perpetrator's having a duty of guarantee. This obligation may arise from the following sources:

1. Obligation Arising from Law

Parenthood and Custody: Pursuant to the Turkish Civil Code, parents are obliged to protect the persons and property of their minor children. Failure by parents to provide necessary medical intervention, leaving the child in dangerous conditions, or failing to protect the child from abuse may give rise to liability within the scope of Article 88 of the TCK.

Protection of Persons in Need of Care: Persons who are legally obliged to care for the elderly, disabled, or sick individuals in need of care (children, spouses, guardians) are obligated not to neglect care in a manner that jeopardizes the health of the person in need.

Occupational Health and Safety in the Workplace: Pursuant to occupational safety laws, employers and those responsible for the work are legally obligated to ensure the health and safety of employees. Failure to take necessary safety measures or remaining inactive in the face of injury risks may give rise to liability within the scope of Article 88 of the TCK.

2. Obligation Arising from Contract

A person may be obligated to protect the victim due to establishing a contractual relationship. For example:

• Care Agreement: If a person who is an elderly or disabled caregiver is in a position to help the cared-for person pursuant to the contract and fails to intervene,
• Healthcare Services Agreement: If a nurse, medical secretary, or health technician fails to intervene despite the patient suffering harm due to the inability to provide necessary medical care,
• Obligation of the Security Guard: If they fail to intervene knowing that harm will come to the applicant or a user of the area they are assigned to.

3. Obligations Arising from Family Law Relations

In a marital relationship, spouses are obligated to protect each other's fundamental rights. For instance, failing to intervene during a spouse's medical crisis, failing to call for help, or confinement to the house resulting in injury may give rise to liability within the scope of Article 88 of the TCK.

4. Obligations Arising from Professional Duties

Persons with a special professional status bear the obligation to protect the victim and intervene within the framework of the duties arising from this status:

• Physician: Failure to intervene in a patient's emergency, misdiagnosis, or depriving the victim of necessary intervention in treatment planning,
• Police Officer, Firefighter: Obligations arising from the duty to protect public order and public safety,
• Teacher or Guidance Counselor: Failure to intervene despite the student suffering harm within the school or within the framework of a school activity,
• Prison Personnel: The obligation to prevent detainees or convicts from being injured by other persons.

5. Obligation Arising from a Danger Previously Created by the Perpetrator

The perpetrator may have created a dangerous situation through their own active conduct or placed the victim at risk. In such cases, the perpetrator, being able to foresee the consequences of the created danger, may be held liable under TCK m.88 for failure to intervene.

Example: If a person causes another to fall into a well and then leaves the scene, and that person is injured inside the well, the perpetrator may bear liability for subsequently failing to summon assistance.

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Distinction Between Intent and Negligence: TCK Art. 21 and Art. 22

The most critical distinction in the application of TCK m.88 is the difference between intentional injury and injury by negligence Omission does not always imply intent.

Feature	Direct Intent	Eventual Intent	Negligence / Recklessness
Perpetrator Information	The perpetrator knows that the result of injury is certain and desires this outcome	The perpetrator foresees that the result of injury may occur and accepts it	The perpetrator does not know or is not in a position to know the result; breaches the duty of care and diligence
Relation to Omission	The guarantor knows that they must protect the victim but intentionally fails to intervene	The guarantor knows the possibility of injury, and if they do not intervene while saying the victim might get injured, then...	The guarantor fails to know what must be done or forgets their duty; not intentionally
Scope of TCK Art. 88	Arises (opportunity for strict penalty reduction is limited)	Arises (opportunity for penalty reduction)	Does not arise; provisions on negligence (taksir) apply
Example	A mother knowingly fails to provide medical treatment for her child's distressing illness; the child suffers damage to a specific organ	A physician ignores a patient requiring emergency intervention; knows the patient's condition may worsen but remains indifferent	A nurse has not received training regarding the risk of procedure-related infection; infection develops as a result of negligence in care

Practical Distinction: If, during an investigation or prosecution, the perpetrator states, “I could not have known this” or “I could not have anticipated it would turn out this way,” the matter must be examined in terms of negligence (taksir). If they state, “I knew but did not care” or “I knew something would happen to them, but I did not intervene,” intent (kast) is at issue.

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Causation and the Connection Between Omission and Result

According to the principles of criminal law, between every negligent act and the harm causal link must be established. The perpetrator must present evidence showing that had they not intervened, the injury would not have occurred or would have been less severe.

In accordance with the established practice of the Yargıtay:

• If it is highly probable that the result would have occurred even if the perpetrator had fulfilled their obligation, a causal link cannot be established and TCK m.88 does not apply,
• It must be demonstrated with medical evidence that the injury could have been completely or partially prevented had an intervention taken place,
• A Forensic Medicine Institution (Adli Tıp Kurumu) or expert witness report is decisive for this evaluation.

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Yargıtay Precedent Decisions and Jurisprudence

Ruling	Incident and Legal Issue	Core Finding
Yargıtay CGK, E. 2020/382, K. 2022/345, T. 11.05.2022	The minor victim facing life-threatening danger as a result of being left in a desolate and cold area with their mother; resulting in the consequence of injury	Qualification must be made based on the guarantor obligation, the equivalence of omission to active conduct, and the resulting injury; if the intent to kill is not definite, TCK m.86, m.87, and m.88 shall apply
Yargıtay CGK, E. 2019/575, K. 2021/587, T. 03.11.2021	General theory of result-oriented crimes committed by omission; requirement of the duty to prevent the result and the causal nexus	If the perpetrator would not have been able to prevent the result even if they had fulfilled their duty, a causal nexus cannot be established between the omission and the result
Yargıtay 12. CD, E. 2019/13309, K. 2022/907, T. 09.02.2022	Death occurring as a result of failure to perform necessary medical intervention on a newborn baby (clamping the umbilical cord); instances of failure to perform necessary intervention in elderly/patient care	In cases where a person in the position of a guarantor knowingly fails to intervene, intent rather than negligence should be considered; evaluation must be made within the scope of TCK m.88
Yargıtay CGK, E. 2020/265, K. 2022/503, T. 29.06.2022	Death occurring as a result of leaving a mother in need of care in a deserted place at night; the perpetrator's prior active conduct directly creating the danger	In cases where the perpetrator creates danger through prior active conduct and accepts the result, more severe offenses may need to be discussed instead of evaluating the incident solely within the scope of TCK m.88

Key Principles Derived from the Rulings:

1. The Guarantor Duty is Absolute: The perpetrator must bear the duty to protect the victim due to law, contract, profession, or family law.
2. Causal Nexus is Required: It must be proven with medical evidence that the injury could have been entirely or partially prevented had an intervention been made.
3. Distinction Between Intent and Negligence is Crucial: It is critical to investigate whether the guarantor committed the violation knowingly (intent) or due to a failure to foresee the consequences (negligence).
4. Qualification Based on the Actual Consequence: Depending on the proven consequence rather than the intended one, TCK Art. 86, Art. 87, or Art. 88 must be applied.

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Evaluation of Evidence and Burden of Proof

Fact to be Proven	Admissible Evidence	Legal Significance
Perpetrator's Guarantor Obligation	Civil registry records, custody documents, care agreements, employment contracts, job descriptions, hospital records	Indicates that the perpetrator has a legal obligation to protect the victim
Victim Being in Danger	Forensic medical report, hospital record, crime scene report, camera footage, witness statements	Establishes that the perpetrator knew or should have known of the need for intervention
Perpetrator's Opportunity to Intervene	Location records, camera footage, telephone records, witness statements, duty rosters	Demonstrates the physical and legal capacity of the perpetrator to perform the required action
Link Between Omission and Injury	Council of Forensic Medicine report, expert witness report, treatment records	Determines whether the injury could have been prevented had a timely intervention been made
Intent of the Perpetrator	Messages, threats, prior incidents, subsequent conduct of the perpetrator, fleeing, failure to call for help	Demonstrates whether the perpetrator knew, desired, or accepted/assented to the consequence
Severity of the Injury	Definitive forensic report, epicrisis, surgical records, expert report	Determines the application of TCK Article 86 (basic injury) or TCK Article 87 (aggravated injury)

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Anticipated Defenses of the Opposing Party and Their Rebuttal

Defense 1: “The Perpetrator Has No Duty of Guarantee”

Content: The perpetrator has no legal obligation to protect the victim.

Rebuttal: Documents demonstrating custody records, care agreements, employment contracts, job descriptions, or eldercare relationships must be submitted. The perpetrator's familial relationship or professional status shall establish the legal obligation.

Defense 2: “Despite the Injury Result, There Is No Negligence, Only Recklessness”

Content: The perpetrator is liable only for negligence (taksir) because they could not have known what action was required.

Rebuttal: Intent (whether it was intentional) must be demonstrated through evidence such as the perpetrator's professional training, job description, previous similar incidents, remaining inactive despite warnings, messages, or threats. Furthermore, the perpetrator's post-incident attitude (fleeing, failing to call for help, contradicting statements) is also an indicator of intent.

Defense 3: “The Result Was Inevitable Even If Intervened”

Content: There is no causal nexus; the injury would have occurred even if the perpetrator had intervened.

Rebuttal: It must be demonstrated through a Council of Forensic Medicine or expert witness report that timely intervention would have completely or partially prevented the injury or mitigated its severity. The General Assembly of Criminal Chambers requires definitive medical evidence in this regard.

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Penalty Amount and Sentencing Reduction Rationale

TCK art. 88 regulates that in cases where intentional injury is committed by omission, “the sentence may be reduced by up to two-thirds”. This expression means that the reduction is not mandatory.

The court must follow the sequence below:

1. Determining the base sentence pursuant to TCK art. 86 or art. 87: The base sentence for intentional injury is determined based on the severity of the injury (2 to 5 years or more).
2. Ascertaining whether it falls within the scope of TCK art. 88: During the investigation and prosecution, the status of guarantor, intent, causation, and the nature of the omission are examined.
3. Deciding whether a reduction will be applied: The severity of the omission, the scope of the guarantor obligation, the vulnerability of the victim, the severity of the injury, and the intensity of intent are evaluated.
4. Determining the rate of reduction: The sentence may be reduced “by up to two-thirds”. This ranges from no reduction up to a two-thirds reduction.

Judicial Discretionary Scope: TCK m.88 grants the judge a broad discretionary scope. In cases where direct intent and negligent conduct converge, the sentence reduction may be more limited. Conversely, situations where the guarantor obligation is largely restricted to care and protection with weak intervention capabilities may constitute grounds for a broader reduction.

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Investigation and Litigation Strategy

The Approach of the Victim's Party

The criminal complaint to be filed by the criminal defense lawyer, must include the following elements:

• Clear definition of the perpetrator's legal obligation (custody, contract, profession),
• Concrete definition that the victim was in danger,
• Detailed explanation of the perpetrator's intervention capability and the required conduct,
• Demonstration of the causal link between the injury and the negligence through medical evidence,
• Evidence demonstrating the perpetrator's intent (messages, warnings, prior incidents) or indicating negligence (lack of training, lack of procedural knowledge).

Post-Conviction Sanctions

In the event of a conviction, matters such as the execution of the sentence, sentence reductions, and conditional release may arise. The victim may also claim material and moral damages in the conviction judgment.

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Frequently Asked Questions

1. If I Am a Passby and Do Not Help an Injured Person, Am I Liable Under TCK m.88?

No. Generally, a bystander does not have a legal obligation to assist an injured person. TCK m.88 only covers individuals who have a duty of guarantee. On the other hand, other offenses regarding the duty to assist and report (TCK m.94 – Failure to report a crime or persons required to notify authorities) may be examined separately.

2. If a Doctor Ignores a Patient's Need for Emergency Intervention, Are They Liable Under TCK m.88 or Negligence Provisions?

A physician is in the position of a guarantor with a special duty. If the physician is aware of the emergency but intentionally fails to intervene and the patient's condition worsens, the scope of TCK m.88 is debated. If they provided adequate medical care but the result still occurred, intent is crucial. If they lacked knowledge or if the applied treatment method complied with medical rules at the time, negligence or other offenses may arise instead of TCK m.88.

3. What Happens If an Elderly Mother's Caregiver Fails to Provide the Mother with Necessary Medical Care?

The caregiver is in the position of a guarantor due to a contract and legal obligation. If the mother is injured or her health condition deteriorates, the caregiver's intent is investigated. If the caregiver is aware of the mother's emergency medical condition but fails to call for medical assistance, liability under TCK m.88 may arise.

4. What is the Statute of Limitations in TCK m.88 Incidents?

The statute of limitations depends on the severity of the injury and the penalty to be applied. It may be 5 years for basic injury under TCK m.86 and 10-15 years for aggravated injury under TCK m.87. A general statute of limitations calculation cannot be made before the legal qualification of the specific incident is finalized.

5. Isn't It Difficult to Prove Intent?

Yes, it can be difficult. However, intent is not proven solely by the perpetrator's explicit admission. The perpetrator's knowledge, the victim's dangerous condition, the opportunity to intervene, remaining inactive despite warnings, prior events, messages, and post-incident attitude are evaluated together. In the case law of the Yargıtay, these pieces of evidence have been deemed sufficient.

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Conclusion

TCK m.88 on intentional injury by omission is an important provision regarding the penalization of the duty of guarantee within the modern criminal law system. However, not every omission and every failure to render assistance falls within this offense type. The perpetrator must possess a specific legal obligation to protect the victim, must know or accept the outcome, and must have the opportunity to intervene.

For criminal liability to be established, all of the elements of guarantee status, intent, causality, and severity must be evaluated together. The victim party must substantiate these elements even during the investigation stage, support them with medical evidence, and preemptively refute potential defenses of the opposing party.

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