MENS REA

NEGLIGENCE
 THE FUNDAMENTALS OF

NEGLIGENCE
According to the predictability theory, negligence consists of not foreseeing a predictable result. This view cannot
explain conscious (advertent) negligence. In addition, the fact that the result was not foreseen in the negligence
arising from not complying with the written rule of conduct, does not have a definite value. Because taking these
measures eliminates negligence.
 According to the preventability view, negligence consists of not preventing the foreseeable and preventable result.
The above criticisms also apply to this view.
 Some criminal lawyers base the fundamentals of negligence on error. However, there are also negligence
hypotheses that are not based on error. For ex. forgetting, sleeping
 According to one view, negligence is based on the violation of the duty of attention. However, negligence can
exist without carelessness. Such is the case with inexperience.
 Another theory understands the violation of the rule to prevent harmful consequences as the basis of negligence.
However, such a violation may also be intentional, and such a violation by itself does not constitute negligence on
its own, but this view is valid in cases where the perpetrator can be asked to comply with the rule.
 Another view, which is more accurate, understands negligence as a conduct that can be prevented by observing the
obligatory behavioral rules, and the perpetrator is being held responsible for doing it unintentionally by violating
these rules.
 TPC bases negligence on the obligation of attention and care.
 NEGLIGENCE TPC ARTICLE 22
 Article 22
(1) Acts conducted with negligence shall be subject to a penalty only where explicitly prescribed by law.
(2) Unconscious(inadvertent) negligence is defined as conducting an act without foreseeing the results as stated in the
legal definition of the offence, due to a failure to discharge a duty of care and attention.
(3) An act is conducted with conscious (advertent) negligence when the result is foreseen but is not desired; in this
case the penalty for the reckless offence shall be increased by one-third to one-half.
(4) The penalty to be imposed for an offence committed with negligence shall be determined according to the
offender’s fault.
(5) In offences committed with negligence, if there is more than one offender, each individual shall be culpable for his
own fault. The penalty for each of the offenders shall be determined separately, according to their own fault.
(6) A penalty shall not be imposed if, as the result of a negligent act, the offender becomes a victim to such a degree
(by reference to his personal and family circumstances only) that imposing a penalty becomes unnecessary. Where the
offence is committed with conscious negligence then penalty to be imposed may be reduced by one-sixth to one-half.
 ELEMENTS OF NEGLIGENCE

Elements of
Negligence

Violation is
Not Willing the Violation of the Attributable to the
Actus Reus Rule of Conduct Perpetrator
 ELEMENTS OF NEGLIGENCE
 The fact that the actus reus is not willed is the most basic point that separates negligence from intent. In this
case, it is sufficient that one of the elements of the intentional crime is not known or willed or that the existence
of the negative element of the actus reus (grounds of justification) is believed to have occured by mistake.
 Rules of conduct can be written or unwritten. Some of the unwritten rules are about being careful and order
conduct to be done in a certain way. As for being attentive, they forbid certain movements orforms of it.
 Written rules, on the other hand, appear in the regulations, orders and instructions issued by the competent
authorities. These do not necessarily have to be set by official authorities. When written rules correspond to a
social rule of conduct, the fact that they are possibly illegitimate in form does not in itself eliminate negligence.
 Rules of conduct should be determined by the most advanced science and experience of the time, according to
predictability and preventability criteria. When these are fulfilled, they are convenient and sufficient to
preventing the result. Such a determination ensures continuous and automatic compliance with the technological
developments.
 Compliance with the rule of conduct should be able to be expected of the perpatrator. In terms of general
negligence, predictability and preventability are indispensable criteria. The perpetrator cannot be condemned in
terms of unpredictable and unavoidable results. Predictability and preventability should be determined
according to different “model agent” criteria. This criterion is determined by groups that can include all people,
such as education level, modern specialization, physical deficiencies. While an outcome may be predictable and
preventable for one perpetrator, it may not be so for another.
 ELEMENTS OF NEGLIGENCE
 If many people participate in the activity, the problem should be resolved according to the principle of trust. Persons
with control obligations cannot benefit from this principle. If concrete conditions make the behavior of others
predictable, one has to avoid these dangers by following special rules of conduct.
 The perpetrator can only be held responsible for the consequences that can be foreseen and avoided by complying
with the professional rules in terms of dangerous activities that are allowed because they are socially beneficial. In
spite of this, if there is a danger that can be foreseen but consented by the legal order, negligence will not be in
question. The negligence (special negligence) arising from not complying with the written rules of conduct is
ontologically no different from the general negligence. In special negligence, there is a result arising from not
complying with the preventive behavior rule.
 In terms of general negligence, while it is checked whether the model agent can predict the result in every event,
predictability and preventability are not sought in special negligence, and consciously not complying with the rule is
considered sufficient. Because the criteria in question are hidden within the rule. If special negligence is not desired
to turn into an objective responsibility, the rules should be prepared according to these criteria.
 If compliance with written norms includes all possible preventive rules, to comply with them eliminates negligent
responsibility. If the norm does not contain all the rules, general negligence remains. Results outside the norm's
protection area are not negligible.
TYPES OF NEGLIGENCE
 Inadvertent/unconsious negligence (TPC Art. 22/2) should be
understood as the fact that the perpetrator did not foresee the result
and did not want it.
 In case of conscious/advertent negligence (TPC Art. 22/3) although
the perpetrator foresees the result, he may be relying on his mastery,
his own personal or professional self-confidence, etc. believes that he
can prevent the result. Unconscious negligence occurs when the
foreseeable result is not foreseen. What distinguishes conscious
negligence from dolus eventualis is the belief that the result will not
happen.
 MENS REA
Dolus Directus / Dolus Eventualis /
Criminal Intent Eventual Intent
(Art. 21/1) (Art. 21/2)
The actus reus is both The result is not willed
known and willed however it was foreseen
and the possibility of the
result occuring is
acknowledged/consented
Advertent Inadvertent
(Consious) (Unconsious)
Negligence (Art. Negligence (Art.
22/3) 22/2)
Result is foreseen but the Result, not foreseen as
perpator believes and the perpetrator didn’t
hopes that it will not obey the rules and/or
occur due to luck or didn’t pay the necessary
his/her own abilities care and attention, has
occured although the
perpatrator hadn’t
wanted it
 MORAL ELEMENT IN CRIMES AGGRAVATED DUE
TO RESULT (TPC ARTICLE 23)

The Aggravation of an Offence Due to its Result

Article 23
(1) Where an act causes a more serious result, or result
other than intended, a person will not be culpable unless
he has acted, at least, with negligence in regard to such
act.
MORAL ELEMENT IN CRIMES AGGRAVATED
DUE TO RESULT (TPC ARTICLE 23)
 In case of a harmful or dangerous result beyond the one required for the
existence of the crime, the aggravated crime due to the result will be in question.
In terms of these crimes, the perpetrator must at least be negligent.
 Sometimes, in terms of the second consequence, the penalty is increased whether
the perpetrator has intent or is negligent (calumny (art. 267) and perjury (art.
272). On the other hand, in some cases, the perpetrator must not have wanted the
second result, otherwise another crime will arise. (abandonment, miscarriage). If
the perpetrator wants the other result, another crime will be committed here.
 In practice, at least negligence should be sought and this institution should not be
transformed into an objective liability with a negligence presumption.