ADMINISTRATIVE MEASURES AND SANCTIONS TAKEN DURING THE COVID-19 PANDEMIC 30 April 2021

In order to prevent the COVID-19 epidemic that continues all over the world and causes deaths with serious health problems, it is seen that many administrative measures have been taken in Turkey as well as all over the world. In this context, it is seen that many measures such as the curfew, the obligation to wear a mask, the closure of workplaces, and the imposition of restrictions on travel between cities are inherently limited by the constitutional fundamental rights and freedoms. The main issue to be examined is the legality of the measures in question. On the other hand, in addition to the measures applied to combat the epidemic, with the start of the production and distribution of the COVID-19 vaccine worldwide, the debate on whether vaccination can be made a mandatory practice by the administration continues unabated. Even in a scenario where vaccination is not mandatory, possible administrative measures and sanctions that can be applied to groups that do not choose to be vaccinated, and the issue of their legality should be examined separately as a requirement of ongoing discussions. For this reason, this article will be conducted under two main headings.

• Legal Compliance of Administrative Measures Taken During the Epidemic Period

As we have stated above, in the current period, many administrative measures are implemented to prevent the epidemic. However, each of the measures implemented has the nature of limiting a constitutional fundamental right. For example, the curfews imposed to restrict the right to freedom and security of the person regulated in Article 19 of the Constitution, and the prohibition of intercity travel restricts the freedom of residence and travel regulated in Article 23 of the Constitution. As it is known, there is no state of the emergency declaration during the epidemic period we are in. For this reason, fundamental rights restrictions will not be evaluated within the scope of Article 15 of the Constitution, which is a regulation on the periods of emergency, but in terms of the terms of Article 13 covering ordinary term restrictions.

For a restriction of fundamental rights and freedoms to conform with the Constitution, it must meet all the conditions stipulated under Article 13. Considering the concrete administrative implementations, it is seen that the two most important conditions that should be evaluated among the conditions listed within the scope of the article are the realization of the "restriction based on the law" and "depending on the reasons specified in the relevant articles of the Constitution". For this reason, first of all, every administrative measure applied must have a legal basis. Unfortunately, only a small part of the measures taken due to the epidemic in Turkey (for example, the measures envisaged by the temporary articles 1 and 2 of Law No. 7226 dated March 25, 2020, and Law No. 7244 of April 16, 2020) are based on the law. Measures other than these measures, such as curfews, obligations to wear masks, intercity travel bans, do not have a legal basis. However, even if the restriction is imposed by law, if it is not realized due to the reasons stated in the relevant articles of the Constitution, it will cause a fundamental right violation. Considering the provisions of the relevant Constitution regarding the applied administrative measures, the reasons for restriction include general health, public health, etc. It seems that there is no inclusive reason for nature. For the reasons explained, it is difficult to say that the measures applied in the ordinary period comply with the law. In addition, as a natural consequence of the aforementioned illegality, the issue of compliance with the law of administrative fines imposed for breach of the measures arises. The current measures and sanctions are very useful practices for protecting public health. However, in a state of law, it will not be accepted that the administration proceeds with the acceptance that all means are permissible in achieving the goal. Regardless of the conditions, the targeted purpose should be tried to be achieved through legal means.

• Legal Compliance of Administrative Measures Applicable to Groups Not Vaccinated

It is known that states follow different policies in vaccination around the world. Some states require vaccination under all circumstances, while other states adopt a policy that only encourages vaccination. States included in the second group may offer various financial or social incentives within the scope of incentive practices, as well as education, etc. It can also choose the way of determining the vaccination as a prerequisite to benefit from the opportunities. The points that should be taken into account while the discussions on mandatory vaccination in Turkey continue "Is Covid-19 Vaccine Mandatory in Turkey?" stated in our article. [See. (http://www.kasaroglu.av.tr/tr/covid19-asisi-turkiyede-zorunlu-hale-getirluluk-mi). In our related study, we emphasized that the vaccination activity, which is a direct intervention to the body integrity of the persons, can only be carried out based on the law under Article 13 of the Constitution, otherwise, the application to be carried out will be a violation of the right to personal immunity regulated in Article 17 of the Constitution.] Based on our related study, it can be said that there are two possibilities regarding the authority of the administration in vaccination activities:

a) Making vaccination a mandatory practice with a clear and predictable legal regulation in line with current needs:

In this possibility, the right of persons to body immunity will not be violated, and the sanctions to be subjected to groups that do not comply with the obligation of vaccination will be clearly determined with the regulation. For this reason, both the measures are taken and the sanctions can be implemented in accordance with the law.

b) Not making vaccination a mandatory practice and prescribing administrative measures to encourage vaccination:

Even if vaccination is not made a mandatory practice, restrictions such as not being admitted to government departments and making vaccines a precondition for enrollment in schools should be based on a law. Because, in order for the administrative police to have powers that restrict fundamental rights and freedoms and that involve the use of force in case of failure to comply with the measures taken, these powers and limits must be regulated by law. The law enforcement authority cannot use an authority that it does not obtain from the law, even for the purpose of protecting public health and public benefit. For the reasons explained, it is possible to implement the aforementioned measures and restrictions with a clear and predictable legal regulation.

Consequently, it is imperative to use law enforcement powers in accordance with both constitutional and legal limits. Otherwise, measures that are vital in terms of public health will be tried to be validated in society by illegal practices. This situation is completely against the principles of legal certainty and predictability, which are the foundations of the rule of law.