We frequently encounter a cliché that everyone knows: “Ignorance of the law is no excuse!” But what about not knowing court decisions?
Can a person be sued and penalized by the same administration for “complying with” the provisions of a regulation which the administration has published?
I can almost hear many of you saying, “Of course not; that’s absurd!” However, let’s take a look at how these exceptional cases can emerge as a regulatory trap before making a definite judgment:
The provision in Article 4 of the Criminal Code stating that “Ignorance of the criminal law is no excuse” can be generalized for all laws, including regulations and communiques, as well as laws. I will be waiting for comments from my legal friends regarding this issue. For now, let’s say “yes” to this question, assuming that all laws are published in the Official Gazette, and citizens read the Official Gazette to get informed first thing in the morning. In such a process, we will undoubtedly be familiar with Constitutional Court Decisions, Court of Cassation Decisions, and some high court decisions in addition to laws, regulations, and many communiques. However, the fact that the annulment or suspension decisions of regulations, regulations, and communique are not published in the Official Gazette or anywhere else turns these decisions into a minefield:
For example, let’s assume that the objection period for a certain administrative action is extended from 30 to 60 days due to a special case stipulated in that regulation following an amendment. Let’s also assume that this amendment is brought before the court, and the court issues an interim injunction or annulment decision. As a result of this decision, the objection period will again be reduced to 30 days. However, no one will know this except the parties to the case and a few people in the courthouse. What will happen to a person who submitted an objection to an administrative action on the 40th day following the regulation?
Similarly, let’s assume that the emission limit for substance X from a factory chimney is determined as 50 units by a regulation, and this limit is later increased to 80 units for a reason. However, a lawsuit brought by an environmental protection association resulted in the annulment of the amendment. Then what happens to a firm unaware of this lawsuit and this decision but invests in a new project during this process or expands its existing investment, including a chimney with an emission of 70 units? Can the Ministry impose a penalty for non-compliance with the regulation?
It is possible to provide more examples of this situation that appear to be exceptional. Moreover, this is not just a theoretical discussion; I have seen similar examples during my practice.
In summary, a regulatory pitfall emerges since the decisions that partially or completely annul or suspend regulations are not shared with the public in the Official Gazette. To eliminate this, I think it is necessary to publish decisions of this nature in the Official Gazette and on the relevant Ministry’s website without delay…
Note: After completing this article, I learned by chance that an article on this subject had been written before. Mr. Tahir Erdem, in an article he wrote in 2011 (1), drew attention to the issue and put forward concrete suggestions to address the problem. On the other hand, I have no information about any positive developments on this issue since then, and I kindly request those informed to enlighten us with their comments and contributions.
* The views and suggestions in this article are entirely personal and not binding for any individual, institution, or organization.
Tahir Erdem, “A Legal Void Regarding Announcing the Suspension or Annulment of Regulatory Administrative Acts by Judicial Decision,” LYY Legislation Journal, August 2011. [Link](http://www.vmhk.org.tr/duzenleyici-idari-islemlerin-yargi-karariyla-yurutumunun-durdurulmasinin-ya-da-iptal-edilmesinin-kamuya-duyurulmasi-konusundaki-hukuki-bosluk/)
You can access previous articles on this topic using the following links:
- PITFALLS OF REGULATION – PART 1: CONFUSING THE GOAL WITH THE MEANS…
- PITFALLS OF REGULATION – PART 2: “A” STORY OF REGULATORY IMPACT ANALYSIS
- PITFALLS OF REGULATION – PART 3: A REGULATION PERFECT LIKE A PEARL…
- PITFALLS OF REGULATION – PART 4: THE SPEED TRAP AND OMNIBUS LAWS…
- PITFALLS OF REGULATION – PART 5: PLAYING WITH THE BREAD
