Supreme Court of Appeals, 12th Criminal Chamber
Case Number: 2019/10106
Decision Number: 2021/3042
“Text of Justice”
Court: Criminal Court of First Instance
Crime: Negligent injury
Sentence: Conviction pursuant to Articles 89/4, 22/3, 62/1, 50/1-a, 52/1-4, and 53/6 of the Turkish Criminal Code
The decision regarding the defendant’s conviction for negligent injury was appealed by the defendant, and the case file was reviewed and considered:
In accordance with the trial procedure, the evidence gathered and presented at the hearing, the conclusions of the prosecution, the court’s opinion and discretion, and the scope of the case file reviewed, the defendant’s unjustified appeal objections were rejected.
At approximately 20:45 on the day of the incident, the suspect, at night, on a 7.40-meter-wide two-way asphalt road in a residential area, while driving a vehicle under his command and control with a blood alcohol level of 0.80 promille, was found to be entirely at fault for the accident, and the participant in the accident, …, suffered injuries that could not be remedied by simple medical intervention as a result of a collision with the motorcycle under the defendant’s control, and the driver, … in a manner that could not be remedied by simple medical intervention, and the passenger … was injured as a result of …’s injury, it was accepted that the defendant was entirely at fault.
Considering the opinions formed by the Forensic Medicine Institution based on scientific data and our Department’s practices, it has been accepted that the application of conscious negligence provisions is necessary since an alcohol level of more than 100 promille eliminates the ability to drive safely, and in this specific case, it has been determined that the defendant had a blood alcohol level of 0.80 promille at the time of the accident. According to medical practice, although it varies from person to person, it must be accepted that the alcohol level decreases by an average of 0.15 per mille per hour.
Given that there was a twelve-minute time difference between the time of the breathalyzer test and the time of the accident reported in the accident report, it was stated that the alcohol level detected in the defendant did not exceed 100 promille and that the defendant’s alcohol level did not exceed 100 promille. Contrary to the defense, despite being unable to drive safely due to the effects of alcohol, considering that there is no credible evidence in the file that he was driving the vehicle, it is understood that the conditions for conscious negligence do not exist. With the acceptance that the act was committed with conscious negligence, a written judgment was issued against the defendant by applying Article 22/3 of the Turkish Criminal Code No. 5237.
According to the acceptance and application;
Although Article 50/4 of the Turkish Penal Code states that “imprisonment for negligent crimes may be long-term and may be converted to a fine if other conditions are met, but this provision does not apply in cases of conscious negligence,” the fact that the imprisonment cannot be converted to a fine was not taken into account.
Due to its unlawfulness and the validity of the defendant’s objections in this regard, pursuant to Article 321 of the Criminal Procedure Code No. 1412, which is currently in force, Pursuant to Article 8 of Law No. 5121, it was unanimously decided on 03/24/2021 to impose an EXCESSIVE FINE contrary to the request and to preserve the defendant’s acquired right.