ÖZEL GÜVENLİK BÖLGESİ VE SOKAĞA ÇIKMA YASAĞI İLANININ HUKUKİ NİTELİĞİ VE UYGULAMADAN KAYNAKLI SORUNLAR

Abstract

A curfew has been declared and private security zones have been created in Eastern Anatolia and Southeast Anatolia due to the increasing terrorist activities in the regions in recent times. Curfew is a temporary administrative police measure that requires that the inhabitants should not leave their houses for a given period of time. This administrative police measure can be declared for the fulŞ lment of the general health element as well as for the purpose of fulŞ lling the security element of the public order as known to the public. For example, the Article 73 of the Public Health Law No. 1593 has been arranged to ban those with certain diseases from getting out of their houses and to isolate or quarantine them in their houses.2 Declaration of the private security zone, however, is the banning of access to given places on grounds of security.These administrative police measures are caused by the proliferation of the terrorist activities and lead to serious debates and critiques in the public as they are interpreted as exceeding the limits of law and restricting the basic rights and freedoms in the extreme. One of the foremost of these critiques is that the curfew means restricting the basic rights and freedoms and there is a need for an open legal regulation; it is also that even if a legal regulation is enforced, the contrariety between the use of this authorization and the Constitution and European Convention of Human Rights may be brought to the agenda if it is not clear-cut with well-drawn limits. Another critique is that with the Article 15 of the Constitution in mind that basic rights and freedoms can only be stopped in public emergency periods and with the declaration of public emergency, the curfews enforced in the region go beyond the restriction of the basic rights and freedoms and appear to halt the use of the basic rights and freedoms. It is also a matter of critique that the decisions concerning the curfews contain an open-ended phrase of "until further notice" and accordingly they do not have a time limitation. The curfews declared without a time limitation under such an open-ended phrase are subjected to serious critiques within the context of "principle of proportionality".In the wake of these developments in question, nullity suits have been Ş led at Council of State (Danıştay) against the Cabinet decrees formed to underpin the declaration of private security zones and curfews. However, as regards the curfews declared in the district of Sur of Diyarbakır due to the terrorist activities, a lot of suits have been Ş led and opened with the claim of the lifting of the curfews declared by the Governorship's decree since July 2015, when terrorists events started to lift their eff ectiveness. The Supreme Court checks the conformity of the curfews, mentioned in the Ş les reaching them through individual applications, to the law. This article is, therefore, intended to deal with the legal quality of the police measures regarding the declaration of curfews and private security zones frequently put into force in the region in recent times and with the juridical problems caused by them in practice.