UNION OF TURKISH BAR ASSOCIATIONS REVIEW TÜRKİYE BAROLAR BİRLİĞİ DERGİSİ The Selected Articles
Sahibi / Owner Av. R. Erinç Sağkan Türkiye Barolar Birliği Başkanı Sorumlu Müdürü / Managing Director Av. Veli Küçük, TBB Genel Sekreteri Yayından Sorumlu Başkan Yardımcısı/ VicePresident Head of the Publishing Department Av. Gürkan Altun, TBB Başkan Yardımcısı Genel Yayın Yönetmeni / Executive Editor Av. Özlem Bilgilioğlu Eşgüdüm Kurulu / Board of Coordination Av. Gürkan Altun Av. Veli Küçük Av. Gökhan Bozkurt Av. Özlem Bilgilioğlu Yayın Kurulu Özlem Bilgilioğlu Türkiye Barolar Birliği Genel Yayın Yönetmeni Gizem Özkan Hacettepe Üniversitesi Hukuk Fakültesi Medeni Hukuk ABD Araştırma Görevlisi Abdussamet Tekin Türkiye Barolar Birliği Yayın İşleri Sorumlusu Danışma Kurulu / Board of Advisors* Prof. Dr. Ahmet Kılıçoğlu Atılım Üniversitesi Hukuk Fakültesi Prof. Dr. Ayşe Havutçu Yaşar Üniversitesi Hukuk Fakültesi Prof. Dr. Ayşe Nuhoğlu Medipol Üniversitesi Hukuk Fakültesi Prof. Dr. Durmuş Tezcan İstanbul Kültür Üniversitesi Hukuk Fakültesi Prof. Dr. Korkut Kanadoğlu Okan Üniversitesi Hukuk Fakültesi Prof. Dr. Muhammet Özekes Dokuz Eylül Üniversitesi Hukuk Fakültesi Prof. Dr. Necmi Yüzbaşıoğlu Galatasaray Üniversitesi Hukuk Fakültesi Prof. Dr. Sibel Özel Marmara Üniversitesi Hukuk Fakültesi Prof. Dr. Sultan Üzeltürk Yeditepe Üniversitesi Hukuk Fakültesi Prof. Dr. Türkan Yalçın Ankara Üniversitesi Hukuk Fakültesi *(İsme göre alfabetik sıralanmıştır) Union of Turkish Bar Associations Review is a selection of the articles from Türkiye Barolar Birliği Dergisi. The original Türkiye Barolar Birliği Dergisi is a refereed review. The selected pieces are translated into English to be published in the Union of Turkish Bar Associations Review. Union of Turkish Bar Associations Review is issued yearly. Articles published in these series express solely the views of the authors. Articles published in these series can not be republished without citation. The original Türkiye Barolar Birliği Dergisi is being permanently indexed in TÜBİTAK - ULAKBİM law database. İletişim Adresi / Communication Address Türkiye Barolar Birliği Başkanlığı Yayın İşleri Mudürlüğü Oğuzlar Mah. Av. Özdemir Özok Sokak No: 8 06520 Balgat - ANKARA Tel: (0312) 292 59 00 (pbx) Faks: (0312) 286 55 65 web:www. barobirlik.org.tr e-posta: yayin@barobirlik.org.tr Abonelik / Subscription Yıllık abone bedeli: 300 TL. Sayfa Tasarımı ve Ofset Hazırlık / Page Design and Offset Preparation Türkiye Barolar Birliği Yayın İşleri Basım Yeri / Printed by Hazar Reklam Mat.Yay. Dan. Eği. Kır. İnş. San. ve Tic. Ltd. Şti. Kazım Karabekir Cad. Kültür Çarşısı No.7/56-57 İskitler - Altındağ / ANKARA Sertifika No: 48999 Basım Tarihi / Printing Date : 31. 12. 2023 ISBN: 978-605-7848-90-1
CONTENTS / İÇİNDEKİLER IV FROM THE PRESIDENT / BAŞKANDAN REFEREED ARTICLES / HAKEMLİ MAKALELER 1 Hüseyin ACAR The Offence of Acting Contrary to Measures to Contain Contagious Disease (Tpc Art. 195) / Bulaşıcı Hastalıklara İli̇şki̇n Tedbi̇rlere Aykırı Davranma Suçu (TCK M. 195) 47 Erdem DOĞAN The Search for A New Legal Personality in The Digital Age: Artificial Intelligence / Dijital Çağda Yeni Bir Hukukî Kişilik Arayışı: Yapay Zekâ 85 Dilara Naz GÜLÜM “Identity or Similarity of Goods or Services” Under The Industrial Property Code No. 6769 / 6769 Sayılı Sınai Mülkiyet Kanunu Kapsamında “Mal veya Hızmetlerin Aynılığı ya da Benzerliği” 117 Muhammed Enes YILDIZ Cases of Joint Liability Arising from Occupational Accidents / İş Kazasından Doğan Müteselsil Sorumluluk Halleri
IV From the President from the president Dear Colleagues We are proud to present the second volume of the Union of Turkish Bar Associations Review. Union of Turkish Bar Associations Review is a project that we have initiated to bring our authors’ articles to a wider circle of readers. The Review, which is designed to publish once a year in English among the articles published in the previous year, is being published in full text in pdf format on our website and will be scanned by search engines and will enable the articles to reach readers in English. We believe that the works reaching a wider network of readers in this way will contribute more to the literature and the articles will receive more citations. I would like to take this opportunity to invite our authors to submit their articles in English to the editors of the Review. Like as the first volume, we are publishing a selection of four articles in our second issue but I sincerely believe that we will have the opportunity to publish more articles in future issues. In the future, I hope that the Union of Turkish Bar Associations Review will become an international review that accepts articles on its own. I wish that the Union of Turkish Bar Associations Review, which is a product of the pioneering mission of the the Union of Turkish Bar Associations in the field of academic law publishing, will be beneficial to our legal world, and I congratulate our team for coming up with the idea of such a review and implementing this idea by pushing the possibilities. Best regards Attorney R. Erinç SAĞKAN President of the Union of Turkish Bar Associations
V Başkan’dan başkandan Değerli Meslektaşlarım, Türkiye Barolar Birliği Dergisi’nin ikinci sayısını sunmaktan gurur duyuyoruz. Türkiye Barolar Birliği Dergisi, yazarlarımızın makalelerini daha geniş bir okuyucu kitlesine ulaştırmak amacıyla başlattığımız bir projedir. Yılda bir kez, bir önceki yıl yayınlanan makaleler arasından İngilizce olarak yayınlanması tasarlanan Dergi, web sitemizde pdf formatında tam metin olarak yayınlanmakta olup, arama motorları tarafından taranarak makalelerin İngilizce olarak okuyuculara ulaşmasını sağlayacaktır. Bu şekilde daha geniş bir okuyucu ağına ulaşan çalışmaların literatüre daha fazla katkı sağlayacağına ve makalelerin daha fazla atıf alacağına inanıyoruz. Bu vesileyle yazarlarımızı İngilizce makalelerini Dergi editörlerine göndermeye davet ediyorum. İlk sayımızda olduğu gibi ikinci sayımızda da dört makaleden oluşan bir seçki yayınlıyoruz ancak ilerleyen sayılarda daha fazla makale yayınlama fırsatı bulacağımıza yürekten inanıyorum. Gelecekte Türkiye Barolar Birliği Dergisi’nin kendi başına makale kabul eden uluslararası bir dergi haline geleceğini umuyorum. Türkiye Barolar Birliği’nin akademik hukuk yayıncılığı alanındaki öncü misyonunun bir ürünü olan Türkiye Barolar Birliği Dergisi’nin hukuk dünyamıza hayırlı olmasını diliyor, böyle bir dergi fikrini ortaya atan ve imkânları zorlayarak bu fikri hayata geçiren ekibimizi kutluyorum. Saygılarımla Avukat R. Erinç SAĞKAN Türkiye Barolar Birliği Başkanı
THE OFFENCE OF ACTING CONTRARY TO MEASURES TO CONTAIN CONTAGIOUS DISEASE (TPC ART. 195) BULAŞICI HASTALIKLARA İLİŞKİN TEDBİRLERE AYKIRI DAVRANMA SUÇU (TCK m. 195) Hüseyin ACAR* Abstract: With the transition to sedentary life by human beings, who have struggled with various epidemic diseases throughout history, and the increase in interaction between societies, the rate of spread of epidemics has also increased. At the end of December 2019, we encountered a new epidemic that has changed our agenda, life and our expectations related to the future. This epidemic, the novel coronavirusCOVID-19, has revealed consequences that will radically affect social relations, behavioral patterns, social, political, cultural and economic infrastructure, as well as the deeprooted problems it has caused in terms of human health. Various measures are taken by the competent authorities in order to prevent the COVID-19 epidemic, which will be felt all over the world for many years and is declared as a pandemic (global epidemic) by the World Health Organization. In order to protect public health in the fight against such contagious diseases, acting contrary to the quarantine measures taken by the competent authorities regarding the location of the person who contracted a contagious disease or died due to such a disease is defined as a crime, and is regulated under the heading “Acting Contrary to Measures to Contain Contagious Disease” of Article 195 of the Turkish Penal Code No. 5237. The commission of this type of offence, which arises if it is conducive to violating measures regarding contagious diseases, can be carried out through active or passive actions. The transmission of the disease to others or certain people being harmed due to the disease are not necessary for the completion of the offence. The offence is completed by violating the quarantine measures taken by the competent administrative authorities. Although the type of crime in Article 195 of the TPC is not subject to complaint, prison sentence is prescribed as a sanction. Keywords: Contagious Disease, Principle of Legality, Public Health, Quarantine Measures, Acting Contrary to Measures * Dr., Ministry of National Education, acar-huseyin@hotmail.com, ORCID: 00000003-4424-7219, Date of Submission: 20.10.2021, Acceptance Date: 09.11.2021
2 The Offence of Acting Contrary to Measures to Contain Contagious Disease (TPC ART. 195) Özet: Tarih boyunca çeşitli salgın hastalıklarla mücadele eden insanoğlunun yerleşik hayata geçmesi ve toplumlar arasındaki etkileşimin artması ile birlikte salgınların yayılma hızı da artmıştır. 2019 yılının Aralık ayının sonunda gündemi, yaşamı ve gelecekle ilgili beklentilerimizi değiştiren yeni bir salgın hastalıkla tanıştık. Yeni tip Koronavirüs COVID-19 olarak adlandırılan bu salgın, insan sağlığı bakımından sebebiyet verdiği derin sorunların yanında toplumsal ilişkileri, davranış kalıplarını, sosyal, siyasal, kültürel ve ekonomik alt yapıyı köklü şekilde etkileyecek sonuçlar doğurmuştur. Bütün dünyada etkisini uzun yıllar hissettirecek ve Dünya Sağlık Örgütü tarafından pandemi (küresel salgın) olarak ilan edilen COVID-19 virüsü salgınının önüne geçebilmek amacıyla yetkili makamlar tarafından çeşitli tedbirler alınmaktadır. Bu tür bulaşıcı hastalıklarla mücadelede kamu sağlığının korunması amacıyla, bulaşıcı hastalığa yakalanan ya da bulaşıcı hastalıktan dolayı ölmüş olan kişinin bulunduğu yere ilişkin olarak yetkili makamlar tarafından alınan karantina tedbirlerine aykırı hareket edilmesi suç olarak nitelendirilmiş olup 5237 sayılı Türk Ceza Kanunu’nun 195. maddesinde “Bulaşıcı Hastalıklara İlişkin Tedbirlere Aykırı Davranma Suçu” başlığı altında düzenlenmiştir. Bulaşıcı hastalıklara ilişkin tedbirleri ihlal etmeye elverişli olması şartıyla ortaya çıkan bu suç tipinin aktif ya da pasif hareketlerle gerçekleştirilmesi mümkündür. Hastalığın başkalarına bulaştırılması ya da hastalıktan dolayı bazı kişilerin zarar görmüş olması suçun tamamlanması için gerekli değildir. Yetkili makamlar tarafından alınan karantina tedbirlerine aykırı hareket edilmesiyle suç tamamlanmış olur. TCK’nın 195. maddesinde yer verilen suç tipi şikâyete tabi olmamakla birlikte yaptırım olarak hapis cezası öngörülmüştür. Anahtar Kelimeler: Bulaşıcı Hastalık, Kanunilik İlkesi, Kamu Sağlığı, Karantina Tedbirleri, Tedbirlerin İhlal Edilmesi INTRODUCTION At the end of December 2019, after the emergence of a new type of Coronavirus (COVID- 19) pandemic in the People’s Republic of China and its recognition as a pandemic by the World Health Organization, the (COVID- 19) pandemic came to the forefront of the agenda in Turkey in mid-March 2020. Public statements on quarantine measures reflected in the press and social media have frequently emphasized Article 195 of the Turkish Penal Code. In the upcoming period, it is important to examine the criminal norm in question, as well as other criminal law sanctions that are likely to be applied in the cases that judicial authorities will encounter in this context, as the issue will remain highly topical.1 1 Murat R. Önok, “Bulaşıcı Hastalıklara İlişkin Tedbirlere Aykırı Davranma Suçu (TCK m. 195)”, Anayasa Hukuku Dergisi, Y. 2020, C. 9, V. 17, p. 149–150.
3 Union of Turkish Bar Associations Review 2023 Hüseyin ACAR The offence of acting contrary to the measures regarding contagious diseases is regulated in Article 195 under the heading of “Offences Against Public Health” in the third section of the third part of the heading of “Crimes Against Society” in the second book titled “Special Provisions” of the TPC No. 5237. The relevant article stipulates that “The person who does not comply with the measures taken by the competent authorities regarding the quarantine of the place where a person infected with one of the contagious diseases or who has died from these diseases is punished with imprisonment from two months to one year”. The grounds of the article include the following sentence: “In the article, failure to comply with the measures taken by the competent authorities to quarantine the place where people infected with contagious diseases or who have died from these diseases are located is defined as an offence. Thus, the aim is to protect public health”.2 According to the aforementioned regulation, the legislator aims to prevent the acts and actions of persons who jeopardize the public health by failing to comply with these measures despite the decision of the competent authorities to quarantine the place where the person who has contracted a contagious disease or died from such diseases is located.3 I. LEGAL REGULATION The protection of public health by taking necessary measures through the introduction of legal regulations is among the most prioritized and important issues for all societies. Article 56 of our Constitution states that “Everyone has the right to live in a healthy and balanced environment. It is the duty of the State and citizens to improve the environment, protect environmental health and prevent environmental pollution”. This provision of our Constitution, which imposes a duty of protection, states that the right to life as a human right can only be realized in a healthy and balanced environment.4 Article 1 of the 2 TBMM, Dönem, 22, Yasama Y. 2, Sıra S. 664, p. 592; İzzet Özgenç, Gazi Şerhi, Türk Ceza Kanunu Genel Hükümler, 2. Baskı, Seçkin Yayınevi, Ankara, 2005, p. 941. 3 Özlem Y. Çakmut, “Bulaşıcı Hastalıklara İlişkin Tedbirlere Aykırı Davranma Suçu”, Prof. Dr. Feridun Yenisey’e Armağan, İstanbul, 1. Baskı, Beta Yayıncılık, C. I, 2014, p. 543–544. 4 It is stated that since the general grounds for limitation have been abolished in the Constitution, some problems may arise in terms of the legitimate purpose of limitations in terms of some rights and freedoms where the ground of “protection of
4 The Offence of Acting Contrary to Measures to Contain Contagious Disease (TPC ART. 195) Public Health Law No. 1593 states that controlling all diseases that pose a threat to public health is one of the requirements of public service. Likewise, in Article 1 of the Turkish Penal Code No. 5237, the protection of public health is listed among the purposes of the law. As stated above, in the offence of acting contrary to the measures regarding contagious diseases under Article 195 of Law No. 5237, the legislator sanctioned non-compliance with the quarantine measures decided to be implemented by the competent authorities in the place where the person infected with the contagious disease or died due to the disease, with the aim of protecting public health.5 Article 195 of Law No. 5237 requires a number of conditions to be met in order for the offence to occur. In order for the material element of the offence to occur, there must first be an existing contagious disease in the concrete case. Issues such as the type of contagious disease, the way it spreads or the area it covers are not important.6 In subparagraph (c) of paragraph 1 of Article 4 of the Regulation on Surveillance and Control Principles of Communicable Diseases, a communicable disease is defined as “a disease caused by a microorganism or its toxic products that is transmitted from person to person through direct contact with an infected person or indirectly, such as exposure to a vector, animal, product or environment, or through the exchange of fluids contaminated with public health” is not included, and that although these problems can be overcome to a certain extent through interpretation, the inclusion of a clear regulation may ensure clarity; in this respect, it is suggested that Article 56 of the Constitution, titled health services and protection of the environment, should include a provision stating that fundamental rights and freedoms may be restricted for the prevention of dangerous epidemics.; Tolga Şirin,“Tehlikeli Salgın Hastalıklarla Anayasal Mücadeleye Giriş,“, Anayasa Hukuku Dergisi, 2020, V. 9, I. 17, p. 132. 5 Zeki Hafızoğulları/Muharrem Özen, Türk Ceza Hukuku Özel Hükümler Topluma Karşı Suçlar, USA Yayınevi, Ankara, 2017, p. 128; Osman Yaşar/Hasan Tahsin Gökcan/Mustafa Artuç, Yorumlu ve Uygulamalı Türk Ceza Kanunu, C. IV, Adalet Yayınevi, 2. Baskı, Ankara, 2014, p. 6035; Ali Parlar/Muzaffer Hatipoğlu, Türk Ceza Kanunu Yorumu, Yayın Matbaacılık, 2. Cilt, (Madde 141-345), Ankara, 2007, p. 1463; Necati Meran, Açıklamalı İçtihatlı Yeni Türk Ceza Kanun, Seçkin Yayınevi, 2. Baskı, Ankara, 2007, p. 971; İsmail Malkoç, Açıklamalı Türk Ceza Kanunu Cilt 3, (Madde 150-241), Sözkesen Matbaacılık, Ankara, 2013, p. 3232; Çetin Arslan/Bahattin Azizağaoğlu, Yeni Türk Ceza Kanunu Şerhi, Asil Yayınevi, Ankara, 2004, p. 818; Çakmut, p. 544. 6 Recep Kahraman, “Bulaşıcı Hastalıklara İlişkin Tedbirlere Aykırı Davranma Suçu (TCK md 195),” Y. 2020, C. 78. S. 2, İstanbul Üniversitesi Hukuk Fakültesi Mecmuası, p. 744.
5 Union of Turkish Bar Associations Review 2023 Hüseyin ACAR a contagious substance”.7 The concept of epidemic, on the other hand, is defined in the dictionary as “infecting a large number of people, animals or plants in the environment in a short time”, “contagious” and “the spread of a disease or other condition and infecting many people at once”. 8 As can be seen, contagiousness refers to the quality of a disease, while epidemic refers to the quantitative prevalence of a contagious disease.9 In the offence of acting contrary to the measures regardingcontagious diseases, it is not sufficient to identify the disease-causing source in order to take quarantine measures. The second element to be sought here is that at least one person must have fallen ill or died due to the contagious disease.10 It is not important whether the contagious disease has reached large segments of society or only a certain part of the society has been affected.11 If a quarantine declaration has not been made by the competent authorities despite the presence of a person who has contracted or died from one of the contagious diseases in an area, or if a quarantine declaration has been made by the competent authorities despite the absence of a person who has contracted or died from an contagious disease in an area, the offence will not occur due to failure to comply with the measures taken under Article 195 of the TPC.12 Another element that must be present regarding the offence is that quarantine measures must have been taken by the administrative authorities in order to prevent the spread of the contagious disease in relation to the place where the person who contracted the disease or died from the disease was located.13 These quarantine measures are taken in relation to the place where the disease is located, not the 7 Önok, p. 162; The List of Notifiable Communicable Diseases in Annex-1 of the Regulation lists which contagious diseases are considered as notifiable contagious diseases. COVID-19 virus is listed as a contagious disease in the 50th place of the relevant list.; Kahraman, p. 744; fn. 16. 8 Tdk Türkçe Sözlük, 11. Baskı, Ankara, 2011, p. 2018. 9 Şirin, p. 53, fn. 18. 10 Tuğba Bayzit, COVID-19 Salgınının Hukuki Boyutu (Editör Muhammet Özekes), Onikilevha Yayınevi, İstanbul, 2020, p. 867. 11 Zeynel Temel Kangal, “Bulaşıcı Hastalıklara İlişkin Tedbirlere Aykırı Davranma Suçu”, Özel Ceza Hukuku Cilt V, Onikilevha Yayınevi, İstanbul, 2019, p. 438. 12 Yaşar/Gökcan/Artuç, p. 6036- 6037. 13 Kahraman, p. 745
6 The Offence of Acting Contrary to Measures to Contain Contagious Disease (TPC ART. 195) person.14 The administrative authorities authorized to take quarantine measures are regulated in Article 69 of the Public Health Law No. 1593. Article 303 of the same law specifies the health officers authorized to determine the quarantine measures and their scope are as follows: “Physicians employed in state, municipal and administrative affairs, and minor health officers who are in the service of physicians in matters deemed necessary and authorized by the Ministry of Health and Internal Medicine”.15 Articles 66, 67, 72, 73 of the Public Health Law No. 1593 explain the measures that can be considered within the scope of quarantine.16 Quarantine is defined in the dictionary as “a health measure applied in the form of keeping a certain region or place under control and preventing entry and exit in order to prevent the spread of a contagious disease”.17 In general terms, the word “quarantine” is used to refer to a set of restrictions intended to prevent the spread of a contagious disease.18 According to the definition of “the place where the infected person or the person who died from the disease was found” in Article 195 of the TPC, it is understood that quarantine measures are measures applied only in an area limited to the place where the infected person or the person who died from the disease was found.19 In other words, the legislator does not recognize acting contrary to measures taken outside the quarantine area as an offence.20 As a matter of fact, in case of acting contrary to measures to prevent the emergence or spread of contagious diseases, such as the obligation to wear a mask or to comply with the social distancing rule, the offence of acting contrary to the measures regarding contagious diseases will not occur.21 Since quarantine measures are implemented through regulatory procedures issued by 14 Önok, p. 163. 15 Kahraman, p. 748-749; Önok, p. 168-169. 16 Önok, p. 169. 17 TDK Türkçe Sözlük, p. 1320-1321; In the Law No. 5996 on Veterinary Services, Plant Health, Food and Feed, quarantine is defined as “the control of animals, animal products, plants, herbal products and other substances, as well as potentially contaminated substances and materials, in order to prevent the introduction or spread of diseases or harmful organisms within the country”. (Art. 3/1-41). OG. of 13.10.2010 and no. 2760. 18 Kahraman, p. 745. 19 Önok, p. 164; Kahraman, p. 748. 20 Kahraman, p. 745. 21 Kahraman, p. 745.
7 Union of Turkish Bar Associations Review 2023 Hüseyin ACAR the competent authorities, the offence committed here is the failure to comply with the regulatory procedures of the administration. Therefore, failure to comply with the quarantine measures taken by the competent authorities will not constitute a crime if the regulatory procedure is not in accordance with the law.22 According to the principle of ultima ratio, criminal law instruments should be used as a last resort. Considering the type of offence in Article 195 of the TPC, it is understood that the legislator did not prefer to punish every action in the fight against contagious diseases.23 In the case Enhorn v. Sweden, the European Court of Human Rights, in its decision known as the “Enhorn criteria”, stated that “States are not directly authorized to deprive persons of liberty in the measures they must take in terms of public health and safety in order to prevent the spread of contagious diseases” and determined two basic conditions when evaluating the “legality” of depriving a person of liberty. These are; (1) the disease constitutes a “danger” to public health/safety and (2) the person carrying the contagious disease is subjected to compulsory isolation. Quarantine measures must be a “last resort” to prevent the spread of the disease, as the use of lesser measures is inadequate. As soon as these criteria are not met, the deprivation of liberty will cease.”24 22 Hafızoğulları/Özen, p. 128. 23 Kahraman, p. 745. 24 Şirin, p. 50; Dilaver Nişancı, “Salgın Hastalıklar ve Salgın Hastalıklar Özelinde Sağlık Hakkına Avrupa İnsan Hakları Mahkemesinin Bakış Açısı ile Ulusal Mevzuatın Covid-19 Özelinde Değerlendirilmesi”, Türkiye Barolar Birliği Dergisi, Y. 2020, S. 150, p. 97; In Enhorn v. Sweden, the applicant, a homosexual man, was found to be HIV-positive and, following his refusal to attend medical appointments given to him by the district health officer, was ordered by the administrative court, in accordance with the Contagious Diseases Act, to undergo compulsory isolation in hospital for a total of seven years, each time for a period not exceeding six months, and in practice for one and a half years, as the applicant had absconded each time. According to the ECHR, while HIV is indisputably dangerous for public health and safety, it is necessary to examine whether the deprivation of the applicant’s liberty is a last resort to prevent the spread of the virus, when less drastic measures are possible. According to the Court, in the circumstances of the concrete case, subjecting the applicant to compulsory isolation without exploring other measures to prevent the spread of the HIV virus cannot be considered as a last resort. On the other hand, the ECHR found that the compulsory isolation, which lasted for a total of seven years and was in fact imposed by keeping the applicant in hospital against his will for one and a half years, violated the Con-
8 The Offence of Acting Contrary to Measures to Contain Contagious Disease (TPC ART. 195) On the other hand, it has been emphasized that the regulation in the offence of acting contrary to the measures regarding contagious diseases is insufficient to protect the public health, that it does not meet the legal needs arising from the current COVID-19 outbreak as its scope is regulated quite narrowly, and that the place where the measures are taken should not be included in the law; it has also been emphasized that in order to make the provision functional, it would be appropriate to remove the requirement of “the place where a person who has been infected with one of the contagious diseases or who has died from these diseases” from the law or to make an amendment as “to quarantine a person”,25 since it is the legislator who can change the content of the rule by taking this into account if the rule is not in line with the purpose.26 In the doctrine, some researchers have suggested that Article 195 of the TPC should be redefined in a broader and more inclusive manner, and thus, there would be no need for Article 284 of the Public Health Law No. 1593, which refers to Article 195 of the TPC.27 II. EVALUATION OF ARTICLE 195 OF TPC IN TERMS OF THE PRINCIPLE OF LEGALITY For the purpose of this study, it would be useful to address the problem of the contradiction to the principle of legality of Article 195 of the TPC, which is a subject of debate in the doctrine, and the vention, as it was considered to have upset the fair balance that had to be struck between the objective of preventing the spread of the HIV virus and the protection of the applicant’s liberty. Enhorn/Sweden, ECHR, 56529/00, 25.01.2005, § 44. 25 Kahraman, p. 745; Önok, p. 181. 26 Önok, p.167. 27 In the doctrine, Önok›s proposed amendment to Article 195 of the TPC is as follows: “A person who fails to comply with the orders given by the competent authorities or the procedures and actions regarding the quarantine of the place where a person who is infected or suspected of being infected with a contagious disease is found or where a substance causing such a disease is found or suspected to be found, or the quarantine of a person who is infected or suspected of being infected with a contagious disease, shall be sentenced to imprisonment from three months to three years.” Önok, p. 182; Kahraman’s amendment proposal regarding relevant article is as follows: “ A person who fails to comply with the measures taken by the competent authorities for quarantine to prevent the emergence or spread of contagious diseases shall be sentenced to imprisonment from six months to two years.” Kahraman, p. 743.
9 Union of Turkish Bar Associations Review 2023 Hüseyin ACAR prohibition of the imposition of crimes and penalties by the regulatory acts of the administration. As is known, one of the fundamental principles of the rule of law is the principle of legality. In order not to leave citizens unprotected against arbitrary and excessive intervention of the state, limitations must be imposed on the exercise of the power of punishment. The rule of law must not only protect individuals through criminal law, but also against criminal law (German: den Einzelnen nicht nur durch das Strafrecht, sondern auch vor dem Strafrecht schützen).28 Article 2, paragraph 1 of the TPC No. 5237 stipulates that (1)”No one shall be punished or subjected to security measures for an act that the law does not explicitly criminalize. No penalty or security measure other than the penalties and security measures stipulated in the law may be imposed”, and in paragraph 2 (2) “Crimes and penalties cannot be imposed by the regulatory procedures of the administration”. According to the principle of legality in the article, in order to guarantee individual rights and freedoms, the legislator must determine which acts constitute crimes and the legal sanctions (sanctions) to be imposed on those who commit these crimes in the law in a clear, precise and enforceable manner, without leaving any room for doubt.29 As adopted in a decision of the Constitutional Court, in this case, individuals have the opportunity to learn which of their behaviours constitute a crime and to adjust their actions accordingly.30 Thus, by ensuring predictability through the principle of 28 Claus Roxin, Strafrecht, Allgemeiner Teil, Band I, Grundlagen, der Aufbau der Verbrechenslehre, 4. Auflage, München, 2006, § 5, kn. 1, p. 138; Bahri Öztürk/ Mustafa Ruhan Erdem, Uygulamalı Ceza Hukuku ve Güvenlik Tedbirleri Hukuku, 14. Baskı, Seçkin Yayıncılık, Ankara, 2014, p. 36; kn. 26; The author prefers to use this definition not only for the Criminal Law, as Roxin states, but for legal rules in general. Berrin Akbulut, Ceza Hukuku Genel Hükümler, 6. Baskı, Adalet Yayınevi, Ankara, 2019, p. 98. 29 Mahmut Koca/İlhan Üzülmez, Türk Ceza Hukuku Genel Hükümler, 12. Baskı, Seçkin Yayınevi, Ankara, 2019, p. 54-55; Timur Demirbaş, Ceza Hukuku Genel Hükümler, 11. Baskı, Seçkin Yayıncılık, Ankara, 2016, p. 118; Mehmet Emin Artuk/Ahmet Gökçen/Mehmet Emin Alşahin/Kerim Çakır, Ceza Hukuku Genel Hükümler, 14. Baskı, Adalet Yayınevi, Ankara, 2020, p. 164; Nur Centel/Hamide Zafer/Özlem Çakmut, Türk Ceza Hukukuna Giriş, 6. Baskı, Beta Yayınları, İstanbul, 2010, p. 56; Kayıhan İçel, Ceza Hukuku Genel Hükümler, Beta Yayınları, Yenilenmiş Baskı, İstanbul, 2016, p. 126; İzzet Özgenç, Türk Ceza Hukuku Genel Hükümler, 15. Baskı, Seçkin Yayıncılık, Ankara, 2019, p. 132. 30 Veli Özer Özbek/Koray Doğan/Pınar Bacaksız, Türk Ceza Hukuku Genel Hükümler, Seçkin Yayıncılık, 10. Baskı, Ankara, 2019, p. 66; Koca/Üzülmez, p. 55;
10 The Offence of Acting Contrary to Measures to Contain Contagious Disease (TPC ART. 195) “legality” in crimes and punishments, legal security is preserved in the field of criminal law.31 Although an exception is made in Article 7, the principle of legality is incorporated in the European Convention on Human Rights.32 The definition and sanctioning of a criminal act in the law is called “full criminal law” (German: Vollstrafgesetz) or “closed criminal law” (German: Geschlossene Gesetze) in the doctrine.33 Although controversial, in some cases, the legislator does not clearly define what the act in question is in the law, although it shows the sanction that corresponds to the criminal act, in other words, the punishment to be imposed. It leaves the determination of this to the administrative authorities, Önok, p. 154; In a decision of the Constitutional Court: “19. Article 2 of the Constitution characterizes the Republic of Turkey as a state of law. One of the fundamental elements of the state of law is the principle of “certainty”. According to this principle, legal regulations must be clear, precise, comprehensible, applicable and objective in a way that leaves no room for any hesitation and doubt for both individuals and the administration, and must also include protective measures against arbitrary practices of public authorities. The principle of certainty is linked to legal security, and the individual should know with certainty which legal sanction or consequence is attached to which concrete action or fact. Only in this case can the individual foresee their obligations and adjust their behavior. 20. The principles of legal security and certainty are prerequisites of the state of law. The principle of legal security, which aims to ensure the legal security of individuals, requires that legal norms should be predictable, that individuals should be able to trust the state in all their actions and transactions, and that the state should avoid methods that undermine this sense of trust in its legal regulations. 21. The principle of certainty refers not only to judicial certainty but also to legal certainty in a broader sense. Legal certainty can also be ensured by court precedents and regulatory acts of the enforcement authority, provided that they meet the requirements of being accessible, known and predictable on the basis of legal regulation. What is essential in the principle of legal certainty is that the consequences of the application of a legal norm should be prescribed in that legal order.” R.G. 20.4.2018, S. 30397; Constitutional Court decision Case No. 2017/172, Decision No. 2018/32. 31 According to Article 38 of the Constitution, “No one shall be punished for an act which the law in force at the time it was committed does not criminalize; no one shall be punished with a heavier penalty than the penalty prescribed for that crime in the law at the time the crime was committed.”, Önok, p. 152; İçel, p. 83; Demirbaş, p. 63. 32 Önok, s. 151. 33 Jürgen Baumann/Ulrich Weber/Wolfgang Mitsch, Strafrecht Allgemeiner Teil, Giesseking Verlag, 11. Baskı, Bielefeld, 2003, kn:100-101, p. 131-132; Artuk/Gökçen/Alşahin/Çakır, p. 157-158; Özgenç, p. 125; Demirbaş, p. 115; Özbek/Doğan/ Bacaksız, p. 72; Koca/Üzülmez, p. 67.
11 Union of Turkish Bar Associations Review 2023 Hüseyin ACAR provided that it is within the limits drawn.34 In this way, flexibility is provided in determining the content, which varies according to place and time to meet the needs that may arise in the future. In the doctrine, laws that allow such arrangements are called “open criminal law, framework law, blind criminal law” (German: Blankettdelikte).35 Under Article 195 of the TPC No. 5237, “failure to comply with the measures taken by the competent authorities” is subject to penalty. Therefore, it is the “competent authorities” who will determine what the measures for quarantine are and which measures should be taken in the offence of acting contrary to the measures regarding contagious diseases.36 These measures to be taken by the competent authorities in the fight against the disease will be determined by referring to the provisions of the Public Health Law No. 1593, taking into account various factors such as the nature, type, effect, speed of spread of the contagious disease and how it is transmitted.37 The fact that our country, like many countries in the world, is unprepared in the fight against dangerous epidemics in terms of legislation leads to the disregard of the principle of legality.38 Although reasons such as the difficulty of predicting the scope and impact of the epidemic in advance and the inability to concretize the measures are put forward39, the end does not justify the means.40 In the type of offence regulated under Article 195 of the TPC, the fact that the element of the act regarding the quarantine measures is not defined in the text of the article is contrary to the principle of legality. Moreover, since the discretionary power to determine the content of the prohibited act is left to the administrative authorities, the provision of Article 195 of the TPC should be considered as an 34 Doğan Soyaslan, Ceza Hukuku Genel Hükümler, 6. Baskı, Yetkin Yayınları, Ankara, 2016, p. 97; Artuk/Gökçen/Alşahin/Çakır, p. 157-158; Demirbaş, p. 115. 35 Roxin, § 5, kn. 40, p. 157; Baumann/Weber/Mitsch, kn:100-101, p. 131-132; Özgenç, p. 125; Artuk/Gökçen/Alşahin/Çakır, 157-158; Demirbaş, p. 115; Özbek/ Doğan/Bacaksız, p. 72; Koca/Üzülmez, p. 67. 36 “The offence is failure to comply with a regulatory act of the administration”. See Hafızoğulları/Özen, p. 123. 37 Kahraman, p. 747. 38 Şirin, p. 130. 39 Kahraman, p. 747. 40 Şirin, p. 130.
12 The Offence of Acting Contrary to Measures to Contain Contagious Disease (TPC ART. 195) open criminal norm.41 It can be said that the future completion of the open criminal norm with the regulatory acts of the administration also contradicts the principle of “No crime and punishment shall be imposed by the regulatory acts of the administration” in paragraph 1 of Article 2 of the TPC.42 According to contemporary criminal law principles, such norms should not be preferred by the legislator.43 III. THE FORMATION PROCESS OF THE NORM AND THE COMPARISON OF THE FORMER TURKISH PENAL CODE NO. 765 AND THE TURKISH PENAL CODE NO. 5237 The Italian Penal Code of 1889, which was the source of the former Turkish Penal Code No. 765, which entered into force on July 1, 1926, also included the offence of acting contrary to measures regarding contagious diseases.44 The offence of acting contrary to measures 41 Hafızoğulları/Özen, p. 128; Artuk/Gökçen/Alşahin/Çakır, p. 161; Özbek/Doğan/Bacaksız, p. 76. 42 Önok, p. 159; Fighting against dangerous epidemics without relying on the principle of legality may seem justifiable at first glance, but when considered in depth, this opens the door to risks such as arbitrariness and disregarding the principles of transparency and equality. In other words, leaving the fight against dangerous epidemics solely to the discretion of the executive may paradoxically hinder this effort. Moreover, this problem may spill over into the processes following the eradication of the disease..” See Şirin, p. 131. 43 See, the Constitutional Court for a precedent opinion. “Turkish Criminal Code No. 5237. Paragraph (1) of Article 297 prohibits bringing or carrying weapons, drugs or stimulants or electronic communication devices into the execution institution or detention center and stipulates that those who ate this prohibition shall be punished with imprisonment. Paragraph (2) of the aforementioned article, in which the rule subject to objection is included, states that the person who intentionally brings into the execution institution or detention center, knowing this prohibition, or possesses or uses the items other than those listed in paragraph (1), which are prohibited by the competent authorities to be brought into the execution institution or detention center, will be punished with imprisonment. Although paragraph (1) of Article 297 lists the qualifications of the items that may be the subject of the crime one by one, the rule subject to objection does not specify such qualifications, and authorizes the competent authority within the administration to determine the items that may be the subject of the crime in an unlimited, uncertain and wide area. Accordingly, since the rule does not clearly and distinctly specify the qualifications that the competent authority within the administration will take as basis when determining the items that may be subject to the crime, the rule is not specific and foreseeable and does not comply with the principle of legality of the crime”, Constitutional Court decision Case No. 2010/69, Decision No. 2011/116; O.G. 21.10.2011, I. 28091. 44 Kangal, p. 434.
13 Union of Turkish Bar Associations Review 2023 Hüseyin ACAR regarding contagious diseases was regulated in Article 263 of the former Penal Code No. 765 under the title of Violence and Resistance against the Government and Opposition to the Laws in the chapter 3, section 8 of the second book of the Penal Code, which was designated for crimes, under the title of crimes committed against the state administration. The text of the mentioned article reads as follows: “Those who actively disobey the orders and actions taken by the Government to cordon off houses and other places infected with cholera and other contagious diseases or where deaths occur shall be imprisoned from one month to one year, depending on the extent of their actions.” 45 Article 256 of the draft of 1997 Turkish Penal Code, which was prepared based on the text and general justification of the preliminary text of 1989 TPC, stipulated that the offence of acting contrary to the measures regarding contagious diseases was punishable by “imprisonment from two months to one year for those who actually obstruct the orders given by the competent authorities regarding the cordoning off of houses and other places where people who are infected with one of the diseases or who have died from these diseases are found, or for those who actually obstruct the efforts in this regard”.46 Article 261 of the 2004 Ministerial Bill on contagious diseases stipulates that “Those who obstruct the orders given by the competent authorities regarding the cordoning off of houses and other places where a person who is infected with one of the contagious diseases or a person who has died from one of these diseases is found, or those who actually obstruct the efforts in this regard, shall be sentenced to imprisonment from two months to one year, depending on the extent of their actions”.47 As seen here, the provision in Article 256 of the draft of the 1997 TPC, which is a translated version of Article 263 of the former TPC No. 765, was also included in Article 261 of the 2004 Ministerial Bill.48 The offence of acting contrary to the measures regarding contagious diseases is regulated in Article 195 under the heading of Offences 45 İsmail Malkoç/Mahmut Güler, (Uygulamada) Türk Ceza Kanunu Özel Hükümler-2, Adil Yayınevi, Ankara, (Yayın yılı belirtilmemiş,) p. 1977; Kangal, p. 434; Çakmut, p. 544. 46 Önok, p. 149. 47 TBMM, Dönem, 22, Yasama Y. 2, Sıra S. 664, p. 320. 48 Çakmut, p. 543; fn. 1.
14 The Offence of Acting Contrary to Measures to Contain Contagious Disease (TPC ART. 195) against Public Health in the TPC No. 5237.49 Although the measures in the TPC No. 765 criminalized the contradiction to the measures taken to cordon off houses and other places where contagious diseases are seen according to Article 263, Article 195 criminalizes the contradiction to the measures taken to quarantine the place where a person who has been infected with a contagious disease or who has died.50 While in the TPC No. 765, the measures were aimed at cordoning off houses or other places, the TPC No. 5237 addresses measures related to the implementation of quarantine.51 Although there are differences in the wording in both legal regulations regarding which diseases are within the scope of the criminal offence, their contents are the same. In the TPC No. 765, the term cholera and other contagious diseases were used, while in the TPC No. 5237, the term contagious disease was used without specifying what the disease was.52 While in the TPC No. 765, the violation of the orders and actions taken by the government was the element of the crime, in the TPC No. 5237, this issue was expressed as acting contrary to the measures taken by the competent authorities and the action in accordance with the definition was handled more comprehensively.53 In the TPC No. 765, the typical act was to actually obstruct, in other words, to actually resist. In TPC No. 5237, on the other hand, failure to comply with the measures is deemed sufficient. Actions that are not of a material nature and do not involve actual opposition may also cause the crime to occur.54 49 Çakmut, p. 544; When the Law No. 5237 is compared with the Law No. 765, it is seen that the verbal expression, the title and the systematic structure of the offence have been completely changed in the Law No. 5237. For this reason, it is partially not possible to use the provision of Art. 263 of the Law No. 765, doctrine and judicial decisions in the interpretation of the offence under Art. 195 of the Law No. 5237. This situation partially harms the principles of progress in doctrine and continuity in jurisprudence. Hafızoğulları/Özen, p. 127. 50 Kahraman, p. 742. 51 Yaşar/Gökcan/Artuç, p. 6035. 52 Çakmut, p. 544. 53 Kangal, p. 435. 54 Kangal, p. 443.
15 Union of Turkish Bar Associations Review 2023 Hüseyin ACAR IV. THE LEGAL VALUE TO BE PROTECTED The meaning and purpose of modern criminal law is the protection of legal values. The individual’s freedom, being an independent entity and developing their personality under the conditions of social life is a requirement of the doctrine of the protection of legal values.55 Both the fact that the section title of the offence of acting contrary to the measures regarding contagious diseases in the TPC No. 5237 is regulated by the legislator as “offences against public health” and the examination of the article justification of the relevant offence, it will be seen that the legal value that is protected here is the “protection of public health”.56 In order to protect public health from danger and attacks, states have the responsibility of taking the necessary measures to combat epidemics through the competent authorities as per the legislation. As a matter of fact, Article 56 of the Constitution states that the State is obliged to ensure that everyone lives their lives both physically and mentally healthy.57 Therefore, the regulation aims to prevent the possible harm and threats to the health of the individuals constituting the society by preventing the further spread of contagious diseases.58 On the other hand, although the doctrine predominantly states that the legal value aimed to be protected is public health, there are also researchers who hold the opposite view. For example, according to German criminal jurist Roxin, only individual legal interests are protected in criminal law. A criminal norm cannot be based on the 55 Yener Ünver, Ceza Hukukuyla Korunması Amaçlanan Hukuksal Değer, 1. Baskı, Seçkin Yayınevi, Ankara, 2003, p. 37. 56 Çakmut, p. 545; Hafızoğulları/Özen, p. 128; Yaşar/Gökcan/Artuç, p. 6035–6036. 57 VIII. Health, Environment and Housing. A. Health services and environmental protection. Article 56 of the Constitution- “Everyone has the right to live in a healthy and balanced environment. It is the duty of the State and citizens to improve the environment, protect environmental health and prevent environmental pollution. The State shall ensure that everyone maintains their life healthy both physically and mentally, and shall regulate the planning and service provision of health institutions from a single authority in order to promote cooperation by increasing savings and efficiency in manpower and material resources. The State shall fulfill this duty by utilizing and supervising public and private health and social institutions. General health insurance may be established by law for the widespread provision of health services.” In addition to the general regulation in the Constitution, the Law on Public Health No. 1593 (Art. 57-96. and Art. 282, 284) also contains some regulations on this matter; Çakmut, p. 545. 58 Yaşar/Gökcan/Artuç, p. 6035–6036; Bayzit, p. 879.
16 The Offence of Acting Contrary to Measures to Contain Contagious Disease (TPC ART. 195) protection of a hypothetical legal interest. It is not possible to create abstract concepts and protect them as legal interests through criminal law. Since the word “people” (German: Volk) is an abstract concept in the narrow sense of the word and has no real physical existence (German: Keinen realen Körper), the legal benefit should not be considered as “protection of public health” (German: Volksgesundheit). What should be understood here is the protection of the health of more than one member of the public. Therefore, an additional reason for punishment should not be created by justifying the protection of public health.59 Again, Kangal argues that the legal value protected by the offence of acting contrary to the measures regarding contagious diseases is not the protection of public health, but rather the health of each individual constituting the society, and that the perpetrator endangers the health of all individuals inside and outside the quarantine zone by not complying with the quarantine measures taken due to a contagious disease.60 In addition, according to Önok, it is not possible to consider an abstract concept such as public health as a legal value.61 V. ELEMENTS OF OFFENCE A. Objective Elements of Offence In the offence of acting contrary to the measures regarding contagious diseases, the examination of the objective elements of the offence is carried out in a certain order. Initially, the perpetrator of the crime, the victim, the criminal act will be examined and then finally the subject of the crime will be examined. 1. Perpetrator Article 195 of the TPC No. 5237 defines the perpetrator as “the person who fails to comply with the measures taken by the competent authorities”.62 Accordingly, anyone who fails to comply with the measures taken or implemented by the competent authorities regarding the quarantine of 59 Roxin, § 2, kn. 46, p. 28. 60 Kangal, p. 435-436. 61 Önok, p. 159. 62 Hafızoğulları/Özen, p. 128.
17 Union of Turkish Bar Associations Review 2023 Hüseyin ACAR the place where a person who has contracted or died from one of the contagious diseases is located can be the perpetrator of the offence.63 Since the relevant article does not require a special qualification for the perpetrator, there is no specific crime here.64 Measures within the scope of quarantine may be taken by the competent authorities to prevent the risk of the spread of contagious diseases throughout the country, or they may be applied only to certain regions, places, people practicing certain professions and arts, or only for certain dates and time intervals, or only for certain age groups. In this case, only these persons can be the perpetrators of the offence of acting contrary to the measures regarding contagious diseases.65 It is possible for persons other than the addressees of the measures taken by the competent authorities to be the perpetrators of the crime in question by acting contrary to these measures.66 It is not necessary for the perpetrator to be the person to whom the quarantine measure is directed or to live or be present in the quarantined area.67 The perpetrator of this offence may also be a public official. This is because it is also possible for a public official to fail to comply with the measures of the competent authorities regarding quarantine during the performance of their duty. In this case, if other conditions are also observed, the penalty will be increased in accordance with Article 266 of the TPC, which states that “The penalty to be imposed on a public official who uses the tools and equipment in their possession as a requirement of their duty during the commission of a criminal offence shall be increased by one-third, unless the title of public official has been taken into account in the definition of the relevant offence. “68 In addition, only natural persons can be the perpetrators of the offence of acting contrary to the measures regarding contagious diseases. It is not possible for legal persons to be the perpetrator of this offence (Art. 20/2 of the TPC).69 63 Kangal, p. 436. 64 Yaşar/Gökcan/Artuç, p. 6036. 65 Kahraman, p. 749. 66 Kangal, p. 437. 67 Kangal, p. 436-437. 68 Kangal, p. 436. 69 Kangal, p. 437.
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