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.
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