The COVID-19 pandemic, which has been impacting all of us for months, was first observed in December 2019 and quickly spread across the globe. On March 11, 2020, the World Health Organization declared it a “pandemic.”

Based on the speed of the spread and the potential to control the disease, various measures were taken regionally or globally in both our country and around the world. Most of these measures have appeared as “restrictions” on individuals. But is this truly the case? Does being told we cannot go outside during certain hours on weekends limit our freedoms? What is the legal basis for these restrictions?

Firstly, it is important to understand the reasons behind these restrictions. During an epidemic, these restrictions aim to control the virus, prevent its spread, and protect public health. The concept of social benefit comes into play here. Social benefit refers to the positive impact of decisions on the well-being of the entire community. These restrictive decisions, or in everyday terms, bans, should aim to protect public health. Furthermore, the state has the responsibility to protect the legal rights of its citizens. This obligation stems from the Constitution and international treaties to which the country is a party.

Article 17 of the Constitution regulates the right to life. In carrying out its responsibilities, the state must comply with Articles 5 and 56 of the Constitution. Additionally, Article 1 of the Law on Public Health (UHK) states:

“Fighting all diseases and other harmful factors that harm the health of the nation, ensuring the healthy upbringing of future generations, and bringing the public to medical and social solidarity are general state services.”

The measures taken within the scope of COVID-19 include restrictions based on age or time, among others. Even if we are not in a state of emergency, we have also experienced curfews. The legal basis for these restrictions is found in:

Article 13 of the Constitution:

“Fundamental rights and freedoms may only be restricted by law, for reasons specified in the relevant articles of the Constitution, and such restrictions cannot be contrary to the Constitution’s wording, spirit, the needs of democratic social order, and the principle of proportionality.”

Article 56 of the Constitution:

“Everyone has the right to live in a healthy and balanced environment.

It is the duty of both the state and citizens to improve the environment, protect environmental health, and prevent environmental pollution.

The state ensures the continuation of life and health of all individuals, planning and organizing health institutions to increase human and material resources and efficiency, and to achieve cooperation. The state fulfills this duty by utilizing and overseeing health and social institutions in the public and private sectors.

For the widespread delivery of healthcare services, general health insurance may be established by law.”

The first part of the justification for Article 56 states:

“It is the duty of the state to ensure that citizens continue their lives in a protected environment, preserving their physical and mental health.”

There are different opinions regarding curfews. One view considers curfews as an administrative measure to limit fundamental rights and freedoms, which can be applied without the need for a state of emergency during normal times. Conversely, some argue that curfews are administrative measures that halt fundamental rights and freedoms, such as personal liberty and security, freedom of movement, freedom of settlement, right to work, and the right to education. Therefore, curfews should only be implemented during extraordinary periods.

Although Article 13 of the Constitution allows the restriction of fundamental rights and freedoms only by “law,” the Law on Public Health and the Provincial Administration Law grant the administration the authority to take measures such as quarantine and travel restrictions in the case of certain epidemics or emergencies. This remains a subject of ongoing discussion and debate.

When evaluating the impact of the COVID-19 pandemic on public welfare, considering the speed of the virus’s spread and the death rates in our country and worldwide, it is generally agreed that the effects have been negative. Therefore, the restrictions have found their legal basis. Here, the concept of public benefit outweighing individual gain comes to the forefront. In order for the state to fulfill its responsibilities and protect public welfare, it can benefit from its superior position, while individual freedoms—such as doing whatever one wants at any time during the pandemic—take a backseat. Given the current circumstances, these measures are reasonable.

All of these processes and the problems experienced worldwide are directly related to our right to access healthcare. The restrictions are designed to help maintain our access to healthcare, while also ensuring that individuals’ treatments in hospitals or other care facilities continue without decline. By preventing people from coming into contact with the virus, these restrictions aim to protect their health and, in doing so, preserve the space needed for those who fall ill. Thus, an important step is taken toward fulfilling the right to healthcare for the sick. It is undeniable that this process requires mutual initiative from all parties. While the restrictions may be limiting, they are necessary to ensure our access to one of our most important rights: the right to health.

Av. Şefik Ziroğlu – Stj. Av. Aleyna Tuz

[1] İstanbul Ticaret Üniversitesi Sosyal Bilimler Dergisi Covid-19 Hukuk Özel Sayısı Yıl:19 Sayı:38 Yaz 2020/2 (Covid-19 Özel Ek) s.180-201