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.
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