TO THE PROSECUTOR'S OFFICE OF THE REPUBLIC OF TURKEY ………

INVESTIGATION NO: …/… SUSPECT: ……… (TR: ……) REPRESENTATIVE: Attorney Ferhat Küle – Istanbul Bar Association SUBJECT: Our request for a decision of no grounds for prosecution in the investigation initiated against our client under Law No. 5607 regarding electronic products received from abroad via cargo .

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EXPLANATIONS

I. SUMMARY OF THE EVENT

The electronic product of brand/model ……… that our client ordered from abroad via the ……… website was stopped by the customs administration during a routine scan by the shipping company undeclared goods , and subsequently the file was sent to the Public Prosecutor's Office, initiating an investigation under Law No. 5607.

The client's order was a purely not for commercial purposes. The client did not knowingly conceal the nature of the product, nor did they act with the intention of making an unlawful statement or smuggling it through customs. Therefore, the mental element of the crime has not been met.

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II. LEGAL ASSESSMENT

1. The elements of the crime under Law No. 5607 have not been met

For the crime of smuggling, as defined in Article 5607, to occur, there must be an intent to bring goods into the country without subjecting them to customs procedures or to evade the payment of customs duties through false declarations . In the specific case at hand;

• The product via postal/cargo service ; its transit across the border was beyond the client's practical control.

• The preparation of the declaration and customs procedures are handled by the shipping company.

• It is not possible for the client to be involved in customs procedures.

• There was no intentional conduct that would result in tax evasion.

2. In the case of goods received via cargo/mail, if the recipient did not act intentionally, no criminal liability arises (Supreme Court precedents)

The 7th Criminal Chamber of the Supreme Court of Appeals has explicitly stated that in cases involving goods arriving via postal or express courier services, the recipient must have had "a deliberate and willful intent to evade taxes" in order to be held liable for smuggling

"In cases where goods arrive via cargo/postal services, it is presumed that there is no intent to smuggle unless the recipient makes a declaration themselves or directs a false declaration."
(Supreme Court 7th Criminal Chamber, 2019/... E., 2020/... K.)

According to the established precedents of the Supreme Court:

• For products that are not for commercial use and remain within the limits of personal use, intent to smuggle is not accepted.

• Factors such as the low value of the item, placing the order through open platforms, and having documented payment all eliminate the possibility of intent.

3. There was no tax loss in this incident – ​​no crime was committed due to lack of intent

Given the nature and value of the electronic product, this matter is entirely an administrative issue . Even if there is a deficiency or inaccuracy in the declaration, this constitutes a misdemeanor and should be resolved with an administrative fine

The element of intent, which is required for criminal liability under Law No. 5607, is not present .

4. The Disproportionality of Conducting the Investigation on Behalf of the Public

The purpose of a criminal investigation is to protect the public interest. Given that the client had no criminal intent in placing the order for personal use, there was no material loss, and the incident can be considered entirely an administrative matter, initiating a criminal investigation is disproportionate.

According to Article 172 of the Code of Criminal Procedure, a decision of no grounds for prosecution should be made.

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III. CONCLUSION AND REQUEST

For the reasons explained above;

• The order placed by the client for personal use was not intended as smuggling

• The preparation of the declaration is the responsibility of the shipping company

• According to Supreme Court precedents, intent cannot be attributed to the client who is the buyer

• The incident did not constitute a crime under criminal law

Since it is clear, we respectfully request and demand that a decision of NO GROUNDS FOR PROSECUTION be issued against our client in accordance with Article 172 of the Code of Criminal Procedure, in the investigation conducted under Law No. 5607