Negligent Injury in a Traffic Accident: How Are Driving License Suspension and the HAGB Decision Affected?

For a driver who has caused injury to another party as a result of a traffic accident, the two most frequently asked questions are: "Will my driving license be confiscated?" and "Can I obtain a decision suspending the pronouncement of the verdict (HAGB — Hükmün Açıklanmasının Geri Bırakılması)?" Although the offense of negligent injury, regulated under Article 89 of the Turkish Penal Code (TCK), is assessed under a different logic than intentional offenses, it is observed in practice that courts render quite different decisions on these two matters. In this article, in light of current Court of Cassation case law, we examine the legal relationship between the withdrawal of a driving license and the HAGB decision, and the points that should be emphasized in the defense.

Summary of the Situation

In the case file of a driver being prosecuted on the ground of having caused negligent injury in a traffic accident, two separate legal issues have arisen:

• The court decided to withdraw the driving license pursuant to TCK Article 53/6; however, there are contradictions regarding the degree of fault between the traffic accident report and the report of the Institute of Forensic Medicine (ATK).
• Despite the fact that the injured party's (the participant's) treatment expenses were covered by the Social Security Institution (SGK) and insurance — meaning there is no concrete pecuniary loss remaining — the court did not issue an HAGB decision.

These two issues form the basis of the defense strategy: requesting that the driving license not be withdrawn and that HAGB be applied.

The Legal Issue

In negligent injury cases, two separate institutions operate under two separate logics, and they must not be confused:

1. Withdrawal of the driving license (TCK Article 53/6): This is a security measure and is left to the discretion of the court. In other words, the judge may or may not withdraw the license, depending on the specific circumstances of the file.
2. The HAGB decision (CMK Article 231): This is an institution applied where the accused has not previously been convicted of an intentional offense, the victim's loss has been compensated (if any), and the court concludes that the accused will not reoffend.

It should be emphasized that these two institutions are independent of each other, but that in both, the judge's reasoning must be lawful and sufficient.

What Does the Court of Cassation Say?

Withdrawal of the Driving License Is Not Mandatory

The Court of Cassation, 12th Criminal Chamber, has consistently emphasized that the withdrawal of the driving license is within the judge's discretion:

• Court of Cassation, 12th Criminal Chamber (E. 2023/133, K. 2023/1933, T. 2023): Whether the driving license is to be withdrawn under TCK Article 53/6 is "within the judge's discretion."
• Court of Cassation, 12th Criminal Chamber (E. 2012/24904, K. 2013/13014, T. 2013): It was stated that the failure to withdraw the driving license is within the court's discretion, and that this fact alone cannot constitute grounds for reversal.
• Court of Cassation, 12th Criminal Chamber (E. 2013/5717, K. 2013/26069, T. 2013): It was held that even the failure to establish an explicit ruling, whether positive or negative, on the withdrawal of the license may be interpreted as "the discretion having been exercised negatively."

Regional Courts of Appeal, in exercising this discretion, also base their assessment on the accused's degree of fault (see, for example, decisions of the Adana Regional Court of Appeal, 4th Criminal Chamber, and the İzmir Regional Court of Appeal, 14th Criminal Chamber). For this reason, if there is a contradiction between the traffic accident report and the ATK report, it is important that this contradiction be emphasized in the defense in a manner that reduces the degree of fault.

If SGK/Insurance Payment Has Been Made, Refusal of HAGB May Be Unlawful

The Court of Cassation's approach on this matter is quite clear, and payments made in favor of the victim by SGK or insurance render it meaningless to refuse HAGB on the ground that "the loss has not been compensated":

• Court of Cassation, 12th Criminal Chamber (E. 2022/1827, K. 2023/402, T. 2023): Given that the participant stated that hospital expenses were covered by insurance and that there was no loss whatsoever, the refusal of HAGB on the ground that "the accused did not compensate the loss" was characterized as "an unlawful and insufficient reason" and constituted grounds for reversal.
• Court of Cassation, 12th Criminal Chamber (E. 2012/16359, K. 2013/7653, T. 2013): The failure to apply the provisions of HAGB, given the participant's statement that there was no pecuniary loss, was found to be unlawful.
• Court of Cassation, 12th Criminal Chamber (E. 2012/889, K. 2012/21901, T. 2012): It was stated that the court should have afforded the accused the opportunity to compensate the participant's loss, calculated through a simple inquiry, and that it was unlawful to state directly that "the loss was not compensated" without doing so.
• Court of Cassation, 12th Criminal Chamber (E. 2011/17622, K. 2012/1394, T. 2012): The failure to apply HAGB on the sole ground of "the nature of the offense" was deemed "an unlawful reason."

Points to Watch

When defending yourself on the matters of the driving license and HAGB in a negligent injury case, pay particular attention to the following points:

• Collect all documents showing the degree of fault: The traffic accident report, the ATK report, and, if any, the expert report, along with any contradictions between them, must be clearly presented to the court.
• Document that the loss has been compensated/has not arisen: Documents such as a letter confirming that SGK covered the treatment expenses and insurance payment receipts are the strongest basis for a HAGB request.
• Remind the court that HAGB does not concern an economic offense: Negligent injury is not an intentional offense committed for economic gain; the accused's lack of a criminal record and remorse should be additionally emphasized to the court.
• Do not forget that the court cannot exercise its discretion negatively by remaining silent: Even the complete absence of reasoning on the license issue in the decision can be made the subject of an objection.

Conclusion: What Should You Do?

For a driver facing an accusation of negligent injury, the most critical step is to examine all technical reports (the fault report, the ATK report) before the hearing and to identify any contradictions, if present. In addition, documents showing that the victim's loss was covered by SGK or insurance must be submitted to the case file, since, according to the Court of Cassation, this circumstance cannot constitute a valid ground for refusing HAGB.

In conclusion, both the request that the license not be withdrawn and the request that HAGB be applied are requests with a high chance of success when supported by the concrete evidence of the case. However, since each case file has its own particular fault situation and loss picture, conducting the process with the guidance of a criminal defense attorney is important for avoiding both the loss of the driving license and an unnecessary conviction record.