Considerations on the Conditions Provided for the Restriction of Freedom for the Purposes of Protection due to an extremely dangerous Infectious Disease

Bulut N.

ISTANBUL HUKUK MECMUASI, vol.78, no.2, pp.517-561, 2020 (ESCI) identifier

  • Publication Type: Article / Article
  • Volume: 78 Issue: 2
  • Publication Date: 2020
  • Doi Number: 10.26650/mecmua.2020.78.2.0010
  • Journal Indexes: Emerging Sources Citation Index (ESCI), TR DİZİN (ULAKBİM)
  • Page Numbers: pp.517-561
  • Istanbul University Affiliated: Yes


The institution of restriction of freedom for the purposes of protection is regulated as a guardian-ship measure under the Turkish Civil Code (TCC), and under conditions specified in Article 432 of TCC, it allows compulsory placement or detainment in a certain establishment of individuals in need of personal protection. Restriction of freedom by compulsory placement/detainment in a particular establishment aims to protect the relevant individual needs. Such restriction requires the need for protection to arise from the causes of weakness listed under Article 432 of TCC. This measure, which was first introduced into Turkish Law by the TCC numbered 4721, is regu-lated within the guardianship provisions; however, it serves for the protection of the society ra-ther than the protection of the person concerned due to its conditions of implementation. It seems that the legislator stipulates the protection for instances where the person concerned also poses a threat to society. Furthermore, restriction of freedom due to an extremely dangerous in-fectious disease serves, in itself, the purpose of protecting society. Implementation of forced treatment is not regulated under these provisions even though forced treatment is a feasible method to overcome the need for protection specifically when this need is due to lack of mental capacity. The absence of provisions regarding forced treatment may result in lifelong detainment of individuals who lack mental capacity. The reasons stated so far reveals that the institution of restriction of freedom for protection and, in particular, its conditions for implementation must be revised following the objectives of the guardianship institution. Hence, this study aims to evalu-ate the conditions set forth under Article 432 of TCC within this context.