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-
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