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.
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