The offence of failure to render assistance or to notify the authorities is set out in Article 98 of the Turkish Penal Code (TCK):
(1) Any person who fails to render assistance, to the extent that the circumstances and conditions permit, to a person who is unable to look after himself owing to his age, illness or injury or for any other reason, or who fails to notify the relevant authorities of the situation immediately, shall be punished with imprisonment of up to one year or a judicial fine.
(2) Where the person dies as a result of the failure to fulfil the duty to render assistance or to notify the authorities, a sentence of imprisonment of one to three years shall be imposed.
The legal interests protected by this offence are the life and bodily integrity of persons and, in connection with these, their property or sexual integrity. Persons who are unable to look after themselves may be unable to protect not only their health but also their property or their sexual integrity. If we examine the offence under the two main headings of typicality and unlawfulness, and begin with the material elements of typicality: the act in this offence is the breach of the duty to render assistance or to notify the authorities. Accordingly, this offence is both an offence with alternative acts and a pure offence of omission. That is to say, it cannot be committed by a positive act. The legislature has opted for alternative acts and has not specified a particular act for the offence to be constituted. Here, the acts of failing to assist and failing to notify will each, separately and independently, constitute the offence. For the offence to be constituted, the victim must also be unable to look after himself. The duty to render assistance or to notify can be performed to the extent that the circumstances and conditions permit. It would be wrong to expect people to act in a way that would put them in difficulty or in danger as well. For example, it is not right to expect a person who cannot swim, on seeing someone drowning, to enter the water and rescue the drowning person. However, that same person must, to the extent that the circumstances and conditions permit, notify the competent authorities of the situation.
Another point to note is that the assistance given to the person in need must be such as to “enable him to look after himself”. If the person cannot be brought to that state through the assistance given, the duty to notify will then come into play. Here the act of assistance is primary, while the act of notification is secondary. If the person to whom one wishes to give assistance refuses it, the duty to render assistance does not arise, but the duty to notify does. In some cases both the duty to render assistance and the duty to notify become mandatory. For example, where a person trapped under a vehicle as a result of a road traffic accident is pulled out, a notification must be made immediately afterwards. (If giving assistance would be risky for the health of the accident victim, no assistance should be given and a notification should be made directly.) The victim may also have come to be in a situation requiring assistance of his own free will. For example, in the case of a person who has taken an excessive amount of alcohol or drugs, the duty of others to render assistance or to notify the authorities will not cease to exist merely because that person came to be in that state with his own consent.
The legislative rationale of the article is as follows:
“In the text of the article, failure to fulfil the duty to render assistance or to notify the authorities is defined as an offence. The subject of this offence may be any person who is unable to look after himself owing to his age, illness or injury or for any other reason. The perpetrator of the offence, on the other hand, may be anyone.
This offence will be constituted where the duty to render assistance is not fulfilled towards a person who is in the situations specified. However, in places where there is an organisation in place for carrying out the necessary intervention for persons in the situations specified, the failure of individuals to take steps to assist will not constitute an offence. However, where the relevant authorities are not aware of the situation, individuals are under a duty to notify the relevant authorities of the situation immediately. Failure to fulfil this duty is also defined as an offence within the scope of this article.
The second paragraph of the article contains a provision on the form of the offence aggravated by its consequence.”
As also stated in the legislative rationale, if there is an organisation for providing assistance at the place where the incident occurs, the failure of individuals in that situation to assist or to notify does not constitute an offence. For example, where police officers or medical personnel are present at the scene, the responsibilities arising from the duty to render assistance or to notify will have ceased to exist. In cases involving the duty to notify, there may be questions as to where the notification should be made. First of all, the notification may vary depending on the nature of the incident, but generally it should be made, according to the circumstances and conditions of the situation, to bodies such as the police, the gendarmerie, lifeguards and hospitals. The offence of failure to render assistance or to notify the authorities is an offence of endangerment. That is to say, it is not required that the victim has suffered harm. The second paragraph of the same article sets out the form aggravated by its consequence. Where the victim dies as a result of the failure to fulfil the duties to render assistance and to notify, the perpetrator will be punished with imprisonment of one to three years. However, if the victim was already dead when the person saw him, the duty to render assistance will have ceased to exist and no offence will be constituted. Or, if it can be proven conclusively on the basis of the evidence that the person would have died even if assistance had been given, the person cannot be held liable under Article 98(2). In that case, liability for the offence of failure to report an offence under Article 278 TCK may at least come into question.
No special characteristic is required of the perpetrator of the offence of failure to render assistance or to notify the authorities. Anyone may be the perpetrator. Every person who fails to render assistance or to notify, to the extent that the circumstances and conditions permit, may be a perpetrator of this offence. However, a person who is under a legal duty to prevent the result will not be a perpetrator of this offence. This is because such persons may be liable for the offence of intentional killing committed by omission under Article 83 TCK. Where the perpetrator has injured the victim through negligence, he is under a duty to prevent the result. Another possibility is where the perpetrator injures the victim knowingly (intentionally) and simply leaves him there. In this case, when the person loses his life, if the perpetrator had the intent to kill, he will be liable for intentional killing. However, if he had only the intent to injure, he will in that case be liable for the offence of injury aggravated by its consequence.
The situations in which the victim is unable to look after himself are specified in the law as old age, illness, injury or other similar reasons. As regards age, a separate assessment must be made in each specific case. Likewise, the illness must have rendered the person unable to look after himself. Physical disabilities that a person has do not give rise to this offence. For example, where the person is visually impaired or has difficulty walking, a failure to assist does not constitute an offence. However, where he is faced with a direct danger, the offence may still be constituted. The subject of the offence is the body of the person who is unable to look after himself owing to his age, illness or any other reason. The offence of failure to render assistance or to notify the authorities can be committed intentionally. (Mental element) What matters here is whether or not the person is aware of the situation. As is well known, the negligent form of an offence can be punished only where it is provided for by law. No negligent form is provided for in this offence.
Turning to the element of unlawfulness of the offence: since grounds of justification may also exist in respect of this offence, the offence will likewise not be constituted in such cases. For example, where there are persons beside the injured person threatening him with a weapon, the person will not be able to go to the injured person and help him. However, even though there is no duty to render assistance, liability under the duty to notify may arise, to the extent that the conditions permit, in the example above.
Turning to the special forms of appearance of the offence: since this offence is a pure offence of omission and the offence is completed when the act occurs, it is not possible to speak of an attempt. Although there are authors in the doctrine who argue that offences of omission may be attempted, the prevailing view and practice is that there can be no attempt. This offence may also be committed jointly. For example, where two friends who are out walking see someone in need of help, since both of them will have come under the duties to render assistance and to notify, both will be regarded as perpetrators. Or, if one of them wishes to help while the other persuades him and dissuades him from helping, the latter will have instigated the offence, but since he is also under the duty himself, he will be classified as a perpetrator and not an accessory, in accordance with the principle of the primacy of perpetration over complicity. Another situation is where a person passes by someone in need of help several times without helping him; since the offence will be of a continuing nature, a single offence will be constituted. If there is more than one person at the scene who needs to be helped, then, since the same offence has been committed against more than one person by a single act, the provisions on successive offences will apply. In this case the perpetrator will be liable under the provision for a single offence, but his sentence will be increased. However, if the perpetrator saw these persons at different places and times but did not help them or did not notify the authorities, as many offences will be constituted as there are persons.
This offence may be confused with the offence of abandonment. The offence of abandonment is regulated in Article 97 TCK:
(1) Any person who abandons to his fate a person who is unable to look after himself owing to his age or illness and who is, for that reason, under a duty of protection and supervision, shall be punished with imprisonment of three months to two years.
(2) Where, as a result of the abandonment, the victim has contracted an illness, has been injured or has died, a penalty shall be imposed in accordance with the provisions on offences aggravated by their consequence.
In the offence of abandonment there is a special duty. Since in this offence the perpetrator has a responsibility to specifically protect and supervise the victim but fails to do so and abandons the victim to his fate, the offence of abandonment differs from the offence of failure to render assistance or to notify the authorities. However, where there is no such duty and the victim is encountered by chance, if the duties to render assistance and to notify are not fulfilled, the offence of failure to render assistance or to notify the authorities will be constituted.
The offence of failure to render assistance or to notify is investigated ex officio and no complaint is required. The limitation period, for its part, begins to run from the commission of the offence. (The moment at which assistance was not given or the notification was not made.) In situations of a continuing nature, the limitation period will begin to run at the moment the continuity is interrupted. These must be assessed separately in each specific case. The courts with jurisdiction to try this offence are the Criminal Courts of First Instance.
This is an English translation of the author’s article originally written in Turkish.
Link to the original article on Hukuki Haber: https://www.hukukihaber.net/yardim-veya-bildirim-yukumlulugunun-yerine-getirilmemesi-sucu