28 The Offence of Acting Contrary to Measures to Contain Contagious Disease (TPC ART. 195) As a rule, the provisions on legitimate defence in Article 25/1 of the TPC do not apply to the offence of acting contrary to the measures regarding contagious diseases. Legitimate defence refers to the fact that a person is not punished for the acts that they have committed in order to defend an unjustified attack on their own or someone else’s right.123 In order for legitimate defence to be applicable, there must be an unjustified attack. Measures taken or implemented by public officials regarding contagious diseases within the scope of their public duty should not be considered as an “unjustified attack” since they are based on a provision of law.124 Because the act that Article 195 of the TPC seeks to punish is the failure to comply with a lawful measure.125 However, if the competent authorities exceed the limits of their duties or resort to measures or act arbitrarily in matters that do not fall within the scope of their duties, it will be considered as an “unjustified attack” and the act of not complying with the measures in the form of a defensive action against this will be considered within the scope of legitimate defence.126 The state of obligation or necessity as a reason for lawfulness (TPC Art. 25/2) is applicable for the offence of acting contrary to the measures regarding contagious diseases.127The state of obligation or necessity can be defined as a situation that requires a person to commit an act that constitutes a crime and is sufficient to eliminate the danger in the face of the obligation to save themselves or others from a danger that they did not intentionally cause.128 If the act of acting contrary to the measures taken or implemented by the competent authorities is carried out under the obligation to eliminate a grave and certain danger or to save someone else and to protect a legal interest that is significantly superior to public health, in other words, if the protection of a legal value that is more important than the right to health, i.e. the right to life, is the case129 , the crime will not occur since the act will be lawful due to the state of obligation. For example, if the person 123 Soyaslan, p. 369. 124 Kangal, p. 446. 125 See also Hafızoğulları/Özen, Özel Hükümler, p. 124. 126 Kangal, 446; Önok, p. 175. 127 Hafızoğulları/Özen, Özel Hükümler, p. 129. 128 Demirbaş, p. 293-294. 129 Önok, p. 176.
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