Akademik Veri Yönetim Sistemi
Human Rights In The Regime Covid-19 (Diritti Umani Durante Il Covid-19), İzmir, Türkiye, 27 - 28 Mayıs 2021, ss.29-41
The SAR-CoV-2 virus, which emerged in Wuhan Province, China in December 2019, was named
the new Coronavirus (COVID-19) and has affected the execution of public services on a global scale.
Countries and their governments have taken administrative measures, prohibitions and restriction
measures which based on scientific data in order to protect fundamental rights, to prevent economic
fluctuations, to direct the process of combating pandemic and to eliminate legal, criminal and financial
liabilities. In this process, health public services, which one of the public services of the administration,
were tried to be carried out by adapting them with the pandemic process. Healthcare public services: preventive
health services, curative health services and rehabilitative health services are divided into three. In
terms of the COVID-19 process, preventive and curative health services came to the fore at the first stage.
Taking local, regional and global measures to combat the COVID-19 epidemic, especially the protection
of the right to life, right to health and bodily integrity, is not only a matter of human rights but also of
humanitarian law.
In Turkish Administrative Law, the administration’s liability for compensation in health services is
mainly based on two legal grounds. The first of these; It is a “service fault” that refers to the disruption or
disturbances arising from the execution of the health public service. Service failure due to the pandemic
may occur for three sub-reasons. These; it is the bad functioning, delayed or non-functioning of the public
service during the pandemic process. The second legal basis for liability is the “liability without fault of
the administration” arising from the execution of healthcare public services. Liability without fault of the
administration during the pandemic period, may be based on the following reasons: the principle of risk
(occupational risk or social risk) or the principle of equality before the public burdens.
Considering the conditions in when COVID-19 occurred, the administration could not be expected
to anticipate such an epidemic. Therefore, since there is a situation other than administrative activity,
unpredictable and unavoidable, it is possible to accept this situation during the first periods of COVID-
19 as a force majeure that removes the liability of the administration. However, if the administrations
do not take the necessary actions to prevent or stop the epidemic in the process, this situation will
lead to the emergence of service defects. Measures such as application of HES code (Life Fits into Home),
travel bans, the obligation to wear a mask, social distance rules, customs restrictions and online education
are also measures that remove the liability of the administration for compensation.
The public interest in the prohibitions and restrictions stipulated by the administration in accordance
with the legislation and the public interest in the relaxation policies in overcoming the economic recession
conflict with each other. In such a situation, it is important to determine which one “superior public
interest” is.
The limits of the administrative discretion in the administration’s struggle against COVID-19 are also
legally important. The limits of discretionary power of the administration in matters such as the choice of
vaccination and the discretionary power of the administration on whether or not to require the vaccine, the administrative discretion in determining the age limits and priorities in vaccination, increasing and
decreasing the administrative measures according to the mutation status should be determined.
When viewed from the aspect of social state principle; activities such as aids, incentives, regulations on
the acceptance of Covid 19 as an occupational disease, vaccination without fee have brought the concept
of Public Law to the fore again in social life, and a dimension that increases the liability of the administration
in health public services has emerged.
Keywords: COVID-19, Pandemic, Administrative Law, Administrative Measures of Turkey in Pandemic,
Administration’s Liability