We frequently encounter a well-worn legal maxim: “Ignorance of the law is no excuse.” But what about ignorance of court rulings?
Can a person be sanctioned or penalized by the very administration for “complying with” the provisions of a regulation which the administration has published?
Many would intuitively reply, “Of course not; that would be absurd!” Before jumping to conclusions, however, let us examine how this scenario can turn into a dangerous regulatory trap:
While Article 4 of the Turkish Penal Code specifically states that ignorance of criminal law is no defense, this principle is practically extended to all primary and secondary legislation—statutes, regulations, and communiqués alike. Let us assume, for the sake of argument, that every citizen checks the Official Gazette first thing in the morning. Even in that ideal world, one could stay informed about statutes, regulations, and rulings of the Constitutional Court or the Court of Cassation.
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 welcome insights from colleagues in the legal community 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, decisions staying the execution of or annulling regulations and communiqués are rarely published in the Official Gazette or made readily accessible to the general public. This lack of publicity turns compliance into a legal minefield:
- Scenario 1: Suppose an amendment extends the administrative objection deadline from 30 days to 60 days. A third party challenges this amendment, and the administrative court orders a stay of execution or annuls it. The deadline legally reverts to 30 days. Unless you are a party to that lawsuit or present in the courtroom, you have no practical way of knowing this. What happens to a citizen who files an objection on Day 40, reasonably relying on the published text of the regulation?
Scenario 2: Suppose a regulation sets a factory emission limit at 50 units for a given substance, which is later revised upward to 80 units. An environmental NGO challenges the revision and secures its annulment. What happens to an investor who, entirely unaware of the litigation, builds or expands a plant operating at 70 units? Can the competent ministry fine that company for non-compliance?
These are not merely hypothetical edge cases; practitioners encounter similar traps in real administrative disputes. When judicial decisions that suspend or invalidate regulatory acts are not officially gazetted, they undermine the core principles of legal certainty and the protection of legitimate expectations.
To eliminate this regulatory pitfall, court decisions that stay or annul regulatory administrative acts should be systematically published in the Official Gazette and featured prominently on the issuing ministry’s portal without delay.
Note: After drafting this piece, I discovered an insightful 2011 article by Mr. Tahir Erdem (1), which highlighted this exact gap and proposed concrete remedies. I am unaware of any substantive legislative progress since then, and I warmly welcome further insights and contributions from colleagues in the legal field.
* The views and recommendations expressed herein are personal and do not bind any institution or organization.
(1) Tahir Erdem, “A Legal Void Regarding the Announcement of Stays of Execution or Annulment of Regulatory Administrative Acts by Judicial Decision,” LYY Legislation Journal, August 2011. Link
Previous articles in this series:
- 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
