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.
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