EVALUATION OF THE ELEMENT OF INTENT IN SMUGGLING CRIMES IN LIGHT OF SUPREME COURT DECISIONS

1. INTRODUCTION

Smuggling crimes are among the types of crimes aimed at protecting the state's control over customs procedures, public revenues, economic order, and the legal trading system. In Türkiye, the acts constituting smuggling and the sanctions to be applied to these acts are primarily regulated in the Law No. 5607 on Combating Smuggling. The law includes various acts such as bringing goods into the country without undergoing customs procedures, avoiding the payment of customs duties using forged documents, and purchasing or offering smuggled goods for commercial purposes.

For smuggling offenses to occur, the mere fulfillment of the material elements specified in the legal definition is not sufficient. The perpetrator must also have committed the act with a specific will and awareness. According to Article 21 of the Turkish Penal Code, intent is the knowing and willful performance of the elements in the legal definition of the crime. In the case of smuggling offenses, as a rule, it is required that the perpetrator act knowing the smuggled nature of the goods, that customs procedures are being violated, or that other elements specified in the law are present.

Intent, being an element related to a person's inner world, often cannot be directly proven with evidence. Therefore, whether the perpetrator acted with smuggling intent is determined by evaluating together the quantity and nature of the goods, the method of transportation and storage, the methods of concealment, the presence or absence of an invoice or customs document, the source of the goods, whether they were packaged for sale, the perpetrator's defenses, and all the circumstances of the incident.

However, merely carrying, possessing, or being in a vehicle containing smuggled goods is not sufficient, in itself, to definitively establish intent to smuggle. In accordance with the principle of individual criminal responsibility, it must be demonstrated with concrete evidence that the perpetrator knew the goods were smuggled and knowingly participated in the criminal act. Otherwise, a conviction based solely on assumption or objective responsibility is not possible.

The mental elements of the crimes regulated in Law No. 5607 are not the same for every type of crime. While general intent is sufficient for some acts, in some types of crimes, such as the purchase, offering for sale, sale, or transportation of smuggled goods, it may be necessary not only to know that the goods are smuggled but also to act with a commercial purpose. Therefore, when examining intent, the legal elements of the alleged crime should first be determined, and then it should be investigated whether the perpetrator had knowledge and will regarding each of these elements.

In Supreme Court rulings, the assessment of intent is particularly important in cases where the smuggled goods belong to another person, the defendant acted only as a carrier or employee, it is claimed that the goods were for personal use, or the defendant argues that they were unaware of the smuggled nature of the goods. In such disputes, the quantity of the goods, their commercial nature, the defendant's profession, the relationship between the parties, whether any benefit was obtained in exchange for transportation, and the consistency of the defense with the ordinary course of life are all examined together.

An erroneous assessment of intent can lead to convictions incompatible with the principle of culpability, even if the material elements of the crime have been fulfilled. Conversely, disregarding the perpetrator's knowledge and will regarding the circumstances of the incident can weaken the effectiveness of the fight against smuggling. Therefore, in reaching the material truth, both the protection of public order and the principle that the defendant benefits from the doubt must be observed.

This study will explain the concept and scope of intent in smuggling offenses; the distinction between general and specific intent, knowledge of the nature of smuggled goods, the element of commercial purpose, and evidence that can be used to prove intent will be examined. Furthermore, the evaluation criteria adopted in Supreme Court decisions will be considered to determine in which situations intent to smuggle is accepted and in which situations acquittal should be granted due to lack of evidence of intent.

2. THE CONCEPT OF SMUGGLING CRIME

2.1. DEFINITION OF THE CRIME OF SMUGGLING

Smuggling is a general term for acts committed by circumventing customs procedures, prohibitions, and financial obligations that should be applied to the entry or exit of goods from a country through unlawful means. These crimes protect the state's customs control, public revenues, economic order, and the legal trading system.

In Turkish law, smuggling offenses are primarily regulated under Law No. 5607 on Combating Smuggling. Article 3 of this law lists multiple types of offenses, each consisting of different actions, rather than a single smuggling crime. These actions include bringing goods into the country without undergoing customs procedures, avoiding payment of customs duties through deceptive practices, leaving goods subject to the transit regime in the customs zone, and bringing in or exporting goods whose import or export is prohibited.

The crime of smuggling is not limited solely to the passage of goods across a border. Even a person who does not directly participate in smuggling may be liable for criminal liability if they knowingly purchase, offer for sale, sell, transport, or store smuggled goods for commercial purposes, provided the circumstances permit. Therefore, the crime of smuggling encompasses not only actions during the import and export stages but also activities that facilitate the circulation of smuggled goods within the domestic market.

The material subject of smuggling offenses is generally goods subject to customs procedures, taxes, permits, restrictions, or import and export bans. However, the conditions for the commission of the crime vary depending on the type of goods and the act committed. The law also contains specific provisions for certain products such as fuel, tobacco products, alcohol, and prohibited import goods.

Smuggling offenses, as a rule, can only be committed intentionally. According to Article 21 of the Turkish Penal Code, intent is the knowing and willful performance of the elements defined in the law. Therefore, it is not sufficient for the perpetrator to merely have a connection with the smuggled goods; it must be demonstrated that they were aware of the material elements of the alleged crime and intended to commit the act. The general provisions of the Turkish Penal Code also apply to offenses regulated in special penal codes.

In particular, certain types of offenses listed in Article 3 of Law No. 5607 require explicit knowledge that the goods are contraband. Furthermore, for acts where the law includes the element of "commercial purpose," it must be proven that the perpetrator acted with a commercial objective beyond personal use. Therefore, the quantity and nature of the goods, the method of storage and transportation, whether they were ready for sale, the documentation, and the defendant's conduct must all be considered together.

In conclusion, the crime of smuggling is a general concept encompassing various acts that violate customs control and the legal order of trade. To determine criminal liability, it is necessary to separately examine which paragraph of Law No. 5607 applies to the specific case, whether the material elements of the crime have been fulfilled, and whether the perpetrator acted with the necessary intent.

2.2. PURPOSE OF LAW NO. 5607 ON COMBATING SMUGGLING

The purpose of Law No. 5607 on Combating Smuggling is stated in Article 1 as defining smuggling offenses, the sanctions to be applied to them, and the procedures and principles regarding the prevention, monitoring, and investigation of smuggling. Thus, the Law envisages a comprehensive system of combating smuggling, aiming not only to punish the acts constituting smuggling but also to prevent and effectively investigate these acts.

The primary legal values ​​protected by the law include the state's supervisory authority over customs procedures, public revenues derived from customs duties, and the legal framework for foreign trade. Preventing the introduction of smuggled goods into commercial circulation, thereby preventing unfair competition, and protecting the registered economic order are also among the law's fundamental functions.

Instead of defining a single smuggling offense, Law No. 5607 regulates different types of offenses, including bringing goods into the country without customs procedures, using forged documents, and purchasing, transporting, or concealing smuggled goods for commercial purposes. This structure demonstrates that smuggling is not limited solely to the act of crossing the border; the aim is also to prevent the commercial circulation of smuggled goods within the country.

However, the goal of effectively combating smuggling does not allow for the disregard of the fundamental principles of criminal responsibility. The principles of legality in crime and punishment, fault-based liability, the individuality of criminal responsibility, and the benefit of the doubt for the accused are also valid for smuggling offenses. Therefore, the mere fact that a person has any connection with smuggled goods is not sufficient for conviction.

In particular, when assessing the element of intent, the law's purpose of combating smuggling cannot be used as a justification for a broad interpretation. It must be demonstrated beyond any reasonable doubt, with conclusive and convincing evidence, that the defendant was aware of the smuggled nature of the goods, willingly committed the criminal act, and, if required by the legal definition, acted for commercial purposes.

In conclusion, Law No. 5607 aims to protect customs control and the legal trade order by defining smuggling offenses and penalties, preventing, monitoring, and investigating smuggling. However, in achieving this aim, it is essential to adhere to the fundamental safeguards of criminal law and to prove both material and moral elements separately for each defendant.

2.3. TYPES OF SMUGGLING CRIMES

Article 3 of the Law No. 5607 on Combating Smuggling does not define a single smuggling offense, but rather numerous types of offenses regulated according to different types of actions and goods. These offenses can generally be classified as violations of customs procedures, introducing smuggled goods into commercial circulation, actions related to prohibited goods (import or export), fuel smuggling, and smuggling of tobacco and alcoholic products.

2.3.1. Bringing Goods into the Country Without Undergoing Customs Procedures

Article 3, paragraph 1 of the law stipulates that bringing goods into the country without undergoing customs procedures is a crime. Bringing goods into the country from a location other than customs checkpoints is considered a circumstance requiring an increased penalty.

2.3.2. Non-Payment of Customs Duties Through Deceptive Transactions and Behaviors

According to the second paragraph, it is a crime to bring goods into the country through deceptive transactions and behaviors, thereby avoiding partial or full payment of customs duties. This crime requires actions aimed at misleading the customs administration and, as a result, avoiding underpayment or no payment of taxes.

2.3.3. Violation of the Transit Regime

The third paragraph regulates the act of leaving goods transported under the transit regime and not in free circulation within the Turkish customs territory in violation of the regime's provisions. The unlawful release of goods intended for transit into the domestic market constitutes the subject matter of this crime.

2.3.4. Misuse of Temporary Import and Inward Processing Regimes

The fourth paragraph stipulates that it is a crime to fraudulently represent as having exported goods that were brought into the country under the temporary import or inward processing regime for a specific purpose or processing.

2.3.5. Purchasing, Selling, Transporting or Storing Smuggled Goods for Commercial Purposes

According to the fifth paragraph, if a person who does not participate in the acts in the first four paragraphs knowingly and for commercial purposes purchases, offers for sale, sells, transports, or hides goods that are the subject of these crimes and are of a smuggled nature, this constitutes an independent smuggling crime.

For this crime, knowledge that the goods are contraband and acting for commercial purposes are explicitly required. Therefore, merely being present with or transporting contraband goods is not sufficient for conviction; it must be demonstrated with concrete evidence that the defendant knew the nature of the goods and acted for commercial purposes.

2.3.6. Use of Goods Exempt from Customs Duties for Purposes Other Than Intended Purpose

The sixth paragraph stipulates that using, selling, or transferring goods imported partially or completely exempt from customs duties under special laws for purposes other than their intended import purpose is a crime.

Furthermore, individuals who knowingly purchase or accept goods with this characteristic are also penalized. For example, the act of introducing goods imported with tax exemption for a specific person, institution, or activity into commercial circulation for a purpose other than its intended use could be considered within this scope.

2.3.7. Smuggling of Prohibited Goods

According to the seventh paragraph, it is a crime to bring into the country goods whose import is prohibited by law. The purchase, offering for sale, sale, transportation, or storage of such prohibited goods, knowing their nature, is also punishable under the same scope.

However, if the act constitutes a crime punishable by a more severe penalty under another law, the provision prescribing the more severe penalty shall apply.

2.3.8. Removal of Prohibited Goods from the Country

The eighth paragraph criminalizes the export of goods that are prohibited from export by law. This provision applies only if the act does not constitute another crime punishable by a more severe penalty.

2.3.9. Fictitious Exports and Misleading Statements Regarding Exports

The ninth paragraph criminalizes the act of falsely representing an export as having taken place in order to benefit from incentives, subsidies, or monetary refunds, when in fact no export has occurred. This also includes misrepresenting the type, quantity, characteristics, or price of the goods subject to the export.

If the difference between the information in the declaration and its attachments and the goods actually exported does not exceed ten percent, then instead of a penalty, action will be taken in accordance with the provisions of the Customs Law.

2.3.10. Smuggling of Fuel, Tobacco and Alcoholic Beverages

The tenth paragraph is not an independent type of crime, but a special provision that increases the penalty when the subject matter of the crime is fuel, tobacco, tobacco products, ethyl alcohol, methanol, or alcoholic beverages. The penalty is increased for smuggling offenses involving these goods, and a specific lower limit is stipulated.

2.3.11. Crimes Related to Fuel Lacking National Markers

The eleventh paragraph states that fuel subject to the national marker application but containing no marker at all or containing a marker below the level determined by the Energy Market Regulatory Authority;

• Production, possession or transportation for commercial purposes,
• Offering for sale or being sold,
• Purchased knowingly and for commercial purposes

It is regulated as a crime.

2.3.12. Unauthorized Production of Fuel from Petroleum Products

According to the twelfth paragraph, it is a crime to produce fuel from solvents, mineral oils, base oils, asphalt and similar petroleum products, or to supply these products directly as a substitute for fuel, without obtaining permission from the Energy Market Regulatory Authority.

The offering for sale, sale, possession, and purchase, transportation, or storage of these products for commercial purposes, with knowledge of their nature, are also considered within the scope of the same paragraph.

2.3.13. Unlawful Extraction of Products from Pipelines, Reservoirs, or Wells

The thirteenth paragraph criminalizes the unlawful acquisition, sale, possession, transportation, or storage of hydrocarbon products such as oil and natural gas from pipelines, storage facilities, or wells. Knowledge of the product's nature and a commercial purpose are required for these acquisitions, transportation, and storage activities.

2.3.14. Possession of Equipment Suitable for Illicit Fuel Production

According to the fourteenth paragraph, it is a crime to possess fixed or mobile tanks, devices, or equipment that are contrary to the conditions specified in the license documents and that are suitable for obtaining, selling, or marketing smuggled fuel or counterfeit national markers.

2.3.15. National Marker Smuggling

The fifteenth paragraph criminalizes the unauthorized production, offering for sale, sale, purchase from unauthorized persons, or acceptance of the national marker. Transporting or possessing the national marker while knowing it to be a national marker is also punishable.

Chemical substances that do not fully possess the chemical properties of the national marker but are produced for use in its place are also covered by this provision.

2.3.16. Production of Counterfeit Tax Stamps, Labels and Similar Marks

The sixteenth paragraph criminalizes the production or importation of counterfeit versions of tax stamps, labels, holograms, seals, stamps, or similar markings used on tobacco products, cigarette filters, cigarette rolling papers, ethyl alcohol, methanol, and alcoholic beverage packaging.

Those who knowingly possess, carry, sell, or use these counterfeit signs will also be punished.

2.3.17. Misuse of Genuine Tax Stamps

The seventeenth paragraph stipulates that it is a crime to give or distribute legally obtained tax stamps and similar markings to others without using them on the designated products.

Obtaining these markings with forged documents, imitating or altering them, removing them from one product and using them on another, or using them in any way other than their intended use, will also be considered within the same scope.

2.3.18. Crimes Related to Products Without or with Counterfeit Tax Stamps

The eighteenth paragraph states that tobacco products, cigarette tubes, cigarette rolling papers, ethyl alcohol, methanol, and alcoholic beverages whose packaging does not bear a tax stamp, label, hologram, seal, stamp, or similar mark, or which bear counterfeit or misleading marks;

• Production, possession or transportation for commercial purposes,
• Offering for sale or being sold,
• Purchased knowingly and for commercial purposes

It is regulated as a crime.

Article 19 of the law has been repealed.

2.3.19. Trade in Filled Cigarette Tubes and Cigarette Papers

According to the twentieth paragraph, it is a crime to sell, offer for sale, possess, or transport for commercial purposes cigarettes filled with shredded tobacco, chopped tobacco, or any other substance inside cigarette tubes or rolling papers.

2.3.20. Unauthorized Tobacco Trade

The twenty-first paragraph stipulates that trading tobacco without obtaining the necessary authorization certificate from the Ministry of Agriculture and Forestry or without fulfilling the required notification obligation is a separate crime.

General Provisions

Paragraphs 22 and 23 of Article 3 of the Law do not regulate independent types of crimes. According to paragraph 22, even if the acts defined in the article remain at the attempt stage, they are punished as if they were completed crimes.

The twenty-third paragraph is based on the value of the offending property. If the value of the property is exorbitant, the penalty is increased; if its value is low or very low, the penalty is reduced.

Overall Assessment

Article 3 of Law No. 5607 criminalizes not only classic customs smuggling but also the commercial circulation of smuggled goods within the country, illegal activities in the fuel market, and violations of tax stamp regulations for tobacco and alcoholic products.

Each type of crime has different material and moral elements. While general intent is sufficient for some crimes, for others, knowledge of the smuggled nature of the goods and acting for commercial purposes are explicitly required. Therefore, when determining criminal responsibility, the mere fact that the defendant is connected to the smuggled goods should not be considered sufficient; the elements of knowledge, will, and commercial purpose mentioned in the relevant paragraph must be demonstrated separately with concrete evidence.

3. THE CONCEPT OF CASTE

3.1. WHAT IS INTENT?

Intent is the act of the perpetrator knowingly and willingly committing the material elements included in the legal definition of the crime. According to Article 21 of the Turkish Penal Code, the commission of crimes generally depends on the existence of intent. Therefore, for a person to be punished, it is not sufficient to merely perform the material act of the crime; they must perform this act consciously and voluntarily.

Intent has two fundamental elements: knowledge and will. The knowledge element refers to the perpetrator's awareness of the act being committed, the subject matter of the crime, and other material characteristics included in the definition of the crime. The will element, on the other hand, demonstrates the perpetrator's intention to carry out these acts that they are aware of.

For example, in smuggling offenses, the mere act of transporting or possessing the goods may not, by itself, demonstrate intent. The perpetrator must know that the goods are smuggled and must have willingly carried out the alleged act of transporting, storing, purchasing, or selling. If a commercial motive is sought in this type of crime, it is also essential to demonstrate that the perpetrator acted with a commercial objective beyond personal use.

Intent is divided into two types: direct intent and indirect intent. In direct intent, the perpetrator knows the legal elements of the crime and desires their fulfillment. In indirect intent, the perpetrator continues to commit the act even though they foresee that the elements defined in the legal definition of the crime may occur. Indirect intent is regulated in this way in the second paragraph of Article 21 of the Turkish Penal Code.

Intent, being related to a person's inner world, often cannot be proven directly with evidence. Therefore, the manner in which the event occurred, the perpetrator's behavior, the quantity and nature of the stolen goods, the method of concealment or transportation, the methods used, the relationship between the parties, and the perpetrator's defenses are all considered together.

In determining intent in smuggling offenses, factors such as concealing the goods, purchasing them at prices far below their usual market value, the absence of invoices or transport documents, the quantity of goods being commercially viable, and the defendant's contradictory statements can be important. However, these factors alone do not automatically demonstrate intent. For a conviction, it must be proven beyond reasonable doubt that the defendant was aware of all the elements of the crime and willingly committed the act.

In conclusion, intent is the fundamental mental element of criminal responsibility. In smuggling offenses, it is not sufficient for the perpetrator to merely have a connection with the smuggled goods; it must be proven with concrete evidence that they were aware of the unlawful nature of the goods and consciously committed the criminal act.

3.2. DIRECT INTENT AND POTENTIAL INTENT

Article 21 of the Turkish Penal Code defines intent as the knowing and willful commission of the elements of a crime as defined in the law. Intent is divided into two types, direct intent and indirect intent, according to the degree of the perpetrator's knowledge and will regarding the material elements of the crime.

3.2.1. Direct Intent

Direct intent means that the perpetrator knows that the elements of the legal definition of the crime will occur and desires this outcome. The perpetrator is aware of the nature of the act, the subject matter of the crime, and the consequences it will produce. Despite this, the act is carried out consciously and voluntarily.

For direct intent to exist, it is not necessary for the perpetrator to know the legal name of the crime or the applicable law. What is important is that they know the events constituting the material elements of the crime. For example, if the perpetrator knows that the goods they are carrying have been brought into the country without undergoing customs procedures and transports these goods for commercial purposes, then direct intent can be said to exist.

In order for direct intent to be accepted in smuggling offenses, the perpetrator must:

• Knowing that the goods are contraband,
• Requesting the alleged act of transporting, storing, purchasing or selling,
• If sought for the relevant type of crime, acting for commercial purposes

is necessary.

The perpetrator's acceptance of transporting the goods, knowing they are contraband, in exchange for economic gain, concealing them in a hidden compartment, or offering them for sale knowing they lack proper documentation, may indicate direct intent. However, these factors must be considered in conjunction with all the specific circumstances of the case.

3.2.2. Possible Intent

Intentional intent occurs when the perpetrator continues to commit the act despite foreseeing that the elements of the legal definition of the crime may occur. The perpetrator does not directly desire the outcome, but acts by accepting the possibility of the outcome occurring.

According to the second paragraph of Article 21 of the Turkish Penal Code, there is probable intent if a person commits an act despite foreseeing that the elements defined in the law could occur. In crimes committed with probable intent, the punishment is determined by reducing it compared to crimes committed with direct intent.

For example, if a person agrees to transport packages for a high fee without investigating their contents, even though they seriously suspect they might contain contraband, the issue of probable intent may arise. However, mere suspicion or the belief that the perpetrator should have been more cautious is not sufficient to establish probable intent. The perpetrator must genuinely foresee the possibility of the crime occurring and accept that possibility.

3.2.3. The Difference Between Direct Intent and Indirect Intent

The fundamental difference between direct intent and indirect intent lies in the perpetrator's will to commit the crime. In direct intent, the perpetrator knows and desires the outcome. In indirect intent, the perpetrator foresees the possibility of the outcome occurring and continues their actions accepting this possibility.

In direct intent, the perpetrator's thought is, "I will bring about this result." In indirect intent, the perpetrator acts with the understanding that, "This result may occur; nevertheless, I continue my actions.".

In both cases, the perpetrator is aware of the possibility of the crime occurring. However, in direct intent, the outcome is intended or definitely taken into account, while in indirect intent, it is foreseen and accepted at a probability level.

3.2.4. The Difference Between Potential Intent and Conscious Negligence

Intentional intent should be distinguished from conscious negligence, in particular. In both cases, the perpetrator foresees that the outcome may occur. However, in intentional intent, the perpetrator accepts the outcome, while in conscious negligence, the perpetrator is confident that the outcome will not occur.

In cases of probable intent, the perpetrator continues their actions without making a genuine effort to prevent the outcome. In cases of conscious negligence, the perpetrator believes, relying on their personal ability, experience, or circumstances, that the outcome will not occur.

Since smuggling offenses are generally committed intentionally, merely determining that the perpetrator acted contrary to their duty of care and diligence is not sufficient for conviction. The assessment that "they should have known the goods were smuggled" cannot be used to create strict or objective liability in place of proving intent.

3.2.5. Assessment in Terms of Smuggling Crimes

Certain types of crimes regulated in Law No. 5607 knowledge and acting for commercial purposes. For these crimes, it must be proven with concrete evidence that the perpetrator genuinely knew the goods were smuggled.

The fact that the contraband nature of the goods could only be foreseen, that the perpetrator should have suspected it due to their experience, or that they failed to conduct the necessary investigation, does not in every case demonstrate intent. Especially where the legal provision explicitly uses the word "knowingly," a conviction cannot be based solely on a hypothetical assessment of "they should have known.".

In determining intent, the quantity and nature of the goods, the manner of concealment, the presence of invoices and transportation documents, the perpetrator's profession, the benefit obtained, the relationship between the parties, the consistency of the defenses, and the manner in which the incident occurred should all be considered together. However, none of these facts alone should be considered conclusive proof of intent.

In conclusion, while direct intent involves the perpetrator knowingly and willingly committing the elements of the crime, in indirect intent, the perpetrator acts by accepting the outcome, even though they foresee that these elements may occur. In smuggling offenses, the type of intent present should be determined not by abstract assumptions, but by definite, concrete, and complementary evidence that demonstrates the perpetrator's knowledge and will.

4. EVALUATION OF THE INTENT ELEMENT IN SMUGGLING CRIMES

4.1. MATERIAL AND MORAL ELEMENTS OF THE CRIME OF SMUGGLING

Article 3 of Law No. 5607 on Combating Smuggling does not define a single smuggling offense, but rather multiple types of offenses regulated according to different actions and types of goods. Therefore, when evaluating the material and moral elements of the smuggling offense, it must first be determined under which paragraph the act attributed to the defendant falls. The act, the subject matter of the crime, the level of knowledge required of the perpetrator, and the element of commercial intent may differ for each type of offense.

4.1.1. Material Elements of the Crime of Smuggling

4.1.1.1. Fail

Most smuggling crimes can be committed by anyone, regardless of the specific legal qualification required. Anyone who brings goods into the country without customs procedures, transports, hides, or sells smuggled goods for commercial purposes can be considered the perpetrator of the crime.

However, the actions and contribution to the crime of each defendant must be determined separately. Being a passenger in a vehicle containing smuggled goods, being an employee at the workplace, or having a close relationship with the owner of the goods is not sufficient, by itself, to establish culpability. In accordance with the principle of the individuality of criminal responsibility, it must be demonstrated with concrete evidence that the person knowingly and willingly participated in the criminal act. According to Article 20 of the Turkish Penal Code, no one can be held responsible for the actions of another.

4.1.1.2. Subject of the Crime

The material subject of the smuggling crime is the goods specified in the relevant paragraph of Law No. 5607. These goods are:

• Goods brought into the country without undergoing customs procedures,
• Goods imported without paying customs duties,
• Goods subject to transit regime,
• Items whose import or export is prohibited,
• Smuggled fuel,
• Tobacco and alcoholic products without or with counterfeit tax stamps,
• Fuel that does not contain a national marker,
• Unauthorized production or use of stamps and similar markings

it could be.

The smuggling nature of goods should be determined not only by the assessment of law enforcement officers, but also by examining customs records, import documents, tax stamps and markers, expert reports, and information obtained from relevant public institutions.

4.1.1.3. Verb

The elements constituting the crime of smuggling vary depending on the type of crime alleged. Article 3 of Law No. 5607 primarily defines the following actions as crimes:

• Bringing goods into the country without subjecting them to customs procedures,
• Avoiding the payment of customs duties through deceptive transactions and behaviors,
• To ensure that transit goods are left within the Turkish customs territory
• Fraudulently presenting goods imported under the temporary import or inward processing regime as having been exported abroad,
• Buying, offering for sale, selling, transporting or storing contraband goods,
• Bringing into or taking out of the country goods that are prohibited from being imported or exported,
• Producing, possessing, transporting, or selling smuggled fuel,
• Producing, using, possessing, or transporting counterfeit tax stamps.

These actions can be regulated as crimes with alternative actions. For example, the purchase, offering for sale, sale, transportation, or storage of smuggled goods for commercial purposes are listed as alternative actions in the same paragraph. The perpetrator's performance of one of these actions is sufficient for the act element of the crime to be fulfilled. Performing more than one alternative action on the same item generally constitutes a single crime; however, actions performed at different times and with different criminal intents are evaluated separately.

4.1.1.4. Commercial Purpose Element

Certain articles of Law No. 5607 explicitly include commercial intent as a material or moral component of the crime. In particular, for certain acts such as purchasing, transporting, concealing, or possessing smuggled goods to be punishable, the perpetrator must act with commercial intent.

When considering commercial purposes;

• Quantity of goods,
• Its diversity and economic value,
• Packaging method,
• Whether it is ready for sale,
• The perpetrator's profession and commercial activity,
• Previous operations of the same type,
• Sales or customer connections,
• Whether the item exceeds the limits of personal use

They should be examined together.

While the large quantity of goods may indicate a commercial purpose, it should not be considered conclusive proof by itself. The court must evaluate the defense of personal use in conjunction with the nature of the goods and all the circumstances of the case.

4.1.1.5. Conclusion and Completion of the Crime

A significant portion of smuggling crimes are completed upon the act itself. For example, the crime is finished when goods are brought into the country without undergoing customs procedures. In crimes involving the transportation or concealment of smuggled goods for commercial purposes, it is not required that economic damage has occurred or that the goods have been sold.

However, in crimes such as bringing goods into the country without paying customs duties through deceptive transactions and behaviors, there must be a connection between the act and the non-payment of customs duties.

Article 3, paragraph 22 of Law No. 5607 stipulates that smuggling offenses defined in the article shall be punished as completed crimes even if they remain at the attempt stage. This provision is a special provision that distinguishes it from the provisions on attempt in the Turkish Penal Code.

4.1.1.6. Illegality

For a crime to occur, the act committed must be unlawful. The exercise of an authority derived from the law, a lawful import or export transaction, or an activity carried out with the permission of an authorized authority does not constitute the crime of smuggling.

However, if the perpetrator believed that the import of the goods was permitted or that the documents were valid, the matter should be evaluated not only in terms of illegality but also in terms of intent and error.

4.1.2. Mental Elements of the Crime of Smuggling

4.1.2.1. Caste

Smuggling offenses, as a rule, can only be committed intentionally. According to Article 21 of the Turkish Penal Code, intent is the knowing and willful performance of the elements defined in the law. Since negligent smuggling acts are not regulated as separate crimes, the perpetrator's carelessness or negligence alone is not sufficient for conviction.

The perpetrator;

• The existence and nature of the object,
• The act of transporting, storing or selling that it has carried out,
• If the crime type is being investigated, the smuggling nature of the goods,
• Customs procedures were not completed,
• Import or export ban,
• If required by the legal definition, then commercial purpose

He/She needs to know.

It is not necessary for the perpetrator to know the number of the law or that the act is legally considered "smuggling." However, it is essential that they are aware of the facts constituting the material elements of the crime.

4.1.2.2. Knowing That the Goods Are Contraband

The phrase "knowing its nature" is explicitly used in some paragraphs of the law. For example, the fifth paragraph of Article 3 punishes the purchase, offering for sale, sale, transportation, or concealment of smuggled goods with the knowledge of their nature and for commercial purposes. Knowing that the goods are smuggled is a fundamental element in this crime.

Therefore, assessments such as "the defendant should have known" or "he could have realized he was a fugitive if he had acted carefully" are not sufficient for conviction on their own. Such an approach would result in applying negligence or objective liability instead of intent liability.

The existence of information indicating that the goods are contraband;

• Receiving the goods without an invoice or documentation,
• Purchased at a price far below its normal market value,
• Transported in hidden compartments,
• Attempting to evade law enforcement surveillance,
• The perpetrator's contradictory statements regarding the origin of the stolen goods,
• The goods were delivered secretly
• Unusually high fees charged for transportation

Such conclusions can be drawn from facts like these. However, these indications must be evaluated in conjunction with the entire event and must reveal the element of information beyond any reasonable doubt.

4.1.2.3. General Intent and Specific Intent

The same type of intent is not required for all offenses under Law No. 5607. In offenses such as bringing goods into the country without subjecting them to customs procedures, general intent is generally sufficient. The perpetrator's knowing and intending to commit the act and the relevant material elements can constitute the crime.

In contrast, some crimes require a specific motive. In the crime of falsely representing an export as having taken place when it hasn't, the perpetrator must act with the intention of benefiting from incentives, subsidies, or monetary refunds. In some types of crimes related to the purchase, transportation, or concealment of smuggled goods, a clear commercial motive is required. Unless this motive is proven, conviction cannot be based solely on the possession of the goods.

4.1.2.4. Direct Intent and Indirect Intent

In direct intent, the perpetrator knows that the goods are contraband and willingly commits the criminal act. An example of this is a person who, for a fee, carries contraband goods in a hidden compartment.

In cases of probable intent, the perpetrator, although foreseeing that the elements of the crime may occur, continues their actions by accepting this possibility. However, if the legal definition explicitly requires "knowledge" of the specific nature of the goods, whether probable intent is sufficient must be carefully evaluated in accordance with the wording and purpose of the crime type. Mere suspicion or failure to comply with the duty of investigation may not prove knowledge of the smuggled nature of the goods.

4.1.2.5. Error

According to the provisions on error in the Turkish Penal Code, a person who is unaware of one of the material elements of a crime is not considered to have acted intentionally. Intent may be eliminated if the perpetrator makes an unavoidable mistake regarding whether the goods being transported were imported legally, whether the documents are valid, or whether the goods are not smuggled.

However, an abstract claim is not sufficient for a defense based on error to be accepted. It must be investigated whether the perpetrator actually fell into such a misunderstanding, considering the manner in which the goods were obtained, the delivery conditions, the documents, and the ordinary course of events.

Overall Assessment

In smuggling cases, the mere seizure of goods or the defendant's physical connection to the goods is not sufficient for conviction. First, the material elements of the alleged offense must be determined; then, it must be investigated whether the defendant knowingly and willingly committed these acts.

In particular, the knowledge of the contraband nature of the goods and the element of commercial intent must be based on concrete evidence, not assumptions. The defendant's defense, the quantity of the goods, the method of transportation and storage, the documentation, the benefit obtained, and all the circumstances of the event must be evaluated together. If intent or specific purpose cannot be proven beyond a reasonable doubt with conclusive and convincing evidence, an acquittal should be granted in accordance with the principle that "the defendant benefits from the doubt.".

5. EXAMINATION OF THE ELEMENT OF INTENT IN LIGHT OF SUPREME COURT DECISIONS

In smuggling offenses, intent refers to the perpetrator knowingly and willingly committing the material elements defined in the law. However, since intent relates to a person's inner world, it often cannot be proven directly with evidence. The Supreme Court determines the existence of intent based on external factors such as the manner in which the event occurred, the nature and quantity of the goods, the method of transportation or concealment, the perpetrator's position, the benefit obtained, the status of the documentation, and the consistency of their defenses.

However, the mere seizure of smuggled goods or the defendant's physical connection to the goods is not sufficient for conviction. It must be demonstrated beyond any reasonable doubt, with conclusive and convincing evidence, that the defendant was aware of the smuggled nature of the goods and consciously committed the criminal act.

5.1. Knowledge of the Smuggled Nature of the Goods

In certain types of offenses under Law No. 5607, knowledge of the smuggled nature of the goods is explicitly required. In this case, it is not sufficient for the perpetrator to merely transport, hide, or possess the goods. The perpetrator must be aware that the goods were brought into the country illegally or that they possess other smuggled characteristics as specified in the law.

In its decision dated February 22, 2018, numbered 2015/4701 E. and 2018/1894 K. , the 7th Criminal Chamber of the Court of Cassation determined that the defendant, who was engaged in transportation, carried powdered sugar loaded onto his vehicle based on a delivery note and presented this document to the officials during the inspection. The Chamber overturned the conviction, stating that there was insufficient evidence to prove that the defendant knew the goods were contraband. This decision demonstrates that it must be proven separately that the carrier was aware of the contraband nature of the goods.

Therefore, the fact that the goods are later found to be contraband does not automatically warrant the punishment of the carrier. It must be investigated whether the perpetrator could have relied on the documentation, whether the transport appeared to be a normal commercial transaction, and whether they had knowledge of the goods' origin.

5.2. The Perpetrator's Occupation or Proximity to the Object is Not Sufficient by Itself

In its decision dated October 12, 2021, numbered 2019/128 E. and 2021/464 K. , the Criminal General Assembly of the Court of Cassation ruled that 113 cartons of smuggled cigarettes were seized from a suitcase in the luggage compartment of a passenger bus whose owner could not be identified. The defendant, who worked as a bus assistant, argued that the suitcase was handed over by a passenger and that the baggage claim tag may have fallen off during the search. Following the testimony of a witness who stated that baggage claim tags can detach during transport, the Criminal General Assembly concluded that the defendant's employment as a bus assistant was not sufficient grounds for conviction.

The ruling stated that there was no other conclusive and convincing evidence that the defendant owned the smuggled cigarettes or knowingly transported them due to their smuggled nature, and the acquittal was upheld. Thus, the Supreme Court accepted that a distinction must be made between a breach of professional supervision and intent to smuggle.

According to this approach, the fact that a person is the driver, assistant, employee, or workplace supervisor of the vehicle does not, in itself, demonstrate intent. It must be established through concrete evidence that the defendant was aware of the existence and smuggled nature of the goods.

5.3. Commercial Purpose Must Be Specifically Proven

Certain articles of Law No. 5607 require not only general intent but also commercial intent. The Supreme Court's Criminal General Assembly generally defines commercial intent as the aim of making a profit. However, commercial intent is not limited solely to the subsequent sale of the goods. Using the goods as a cost element within a commercial activity or evaluating them in a debt relationship can also be considered within the scope of commercial intent.

In its decision dated June 24, 2021, numbered 2019/4 E. and 2021/310 K. , the Criminal General Assembly of the Court of Cassation stated that 39 liters of alcoholic beverages, eight cartons of cigarettes, and 2.5 kilograms of tea were seized from the defendant's vehicle. The defendant argued that he brought the products to serve to guests at his son's wedding and submitted the wedding invitation and the police report to the file. The Criminal General Assembly ruled that, in light of the supporting documents, it could not be definitively proven that the products were possessed for commercial purposes.

The decision will determine whether the perpetrator acted for commercial purposes;

• Economic and social situation,
• Type and quantity of goods,
• Place and time of use of the item,
• The value of the item,
• The manner in which it was possessed and seized,
• Evidence supporting the defendant's defense

It has been stated that this should be determined by evaluating them together.

In accordance with this decision, the defense that the item was kept for personal use cannot be rejected abstractly. The defense must be evaluated together with the date of the incident, the nature of the item's use, and the documents submitted to the file.

5.4. The Quantity and Nature of the Goods are Important in Determining Intent

In the practice of the Supreme Court, the quantity of goods is considered an important indicator in determining the commercial purpose. However, the quantity assessment should not be made independently of the type and intended use of the goods.

In its decision numbered 2016/86 E. and 2018/3819 K. , the 7th Criminal Chamber of the Court of Cassation accepted that the 300 packages of smuggled and untaxed cigarettes seized from the defendant exceeded the limit for personal use in terms of quantity and nature. The Chamber overturned the acquittal decision, which was given on the grounds that there was no commercial intent.

Similarly, in its decision dated February 19, 2019, numbered 2018/3278 E. and 2019/10719 K., the 7th Criminal Chamber of the Court of Cassation stated that the 25 cartons of smuggled cigarettes were of commercial quantity and nature, and found the acquittal decision, given on the grounds that the defendant did not have commercial intent, to be unlawful.

However, it cannot be said that a certain amount automatically constitutes a commercial purpose in every case. The lifespan of the item, the perpetrator's personal or family need, the perishability of the product, the packaging method, and whether other evidence of sale exists should also be considered.

5.5. Assessment of the Personal Use Defense

In deciding whether or not to accept the defense of personal use, not only the quantitative quantity of the item but also its nature and intended use are important.

In its decision dated June 28, 2022, numbered 2020/298 E. and 2022/493 K. , the Criminal General Assembly of the Court of Cassation stated that approximately 113.64 square meters of tiles were seized from the defendant's vehicle. The defendant argued that he was building a house and had purchased the tiles for use in the construction. The Criminal General Assembly, considering both the nature of the items and the content of the defense, concluded that the elements of the crime were not present and overturned the conviction.

This decision demonstrates that a large quantity of goods does not always imply a commercial purpose. Especially with building materials, household goods, or products purchased in bulk for a specific personal need, the concrete intended use should be investigated.

5.6. Concealment and Unusual Transportation Methods

Placing the item in a hidden compartment of the vehicle, under the bed, in the fuel tank, or in specially prepared arrangements may indicate that the perpetrator was aware of the item's existence and its unlawful nature. Similarly, evading law enforcement, concealing the owner of the item, using forged documents, or charging an unusually high transportation fee may also be considered in determining intent.

However, even if concealment is found, the court must explain, with reasoned justification, the connection between this fact and the defendant's knowledge and will. In the Supreme Court's 7th Criminal Chamber's decision numbered 2014/5578 E. and 2015/12791 K., the failure to discuss the grounds on which commercial intent was reached in the face of the defendant's defense of personal use regarding 45 liters of smuggled fuel hidden in plastic bottles in the vehicle was considered a reason for reversal.

Therefore, while the concealment of the goods can be considered a strong indication, achieving a commercial objective without justification is not sufficient.

5.7. Consistency of Defenses and the Ordinary Course of Life

The Court of Cassation examines whether the defendant's defense changed during the investigation and prosecution, whether it was corroborated by other evidence, and whether it is consistent with the ordinary course of life.

The defendant's inability to state the ownership of the goods, providing contradictory information about the delivery person, concealing the transportation fee, or offering inconsistent defenses regarding invoices and shipping documents may be considered evidence of intent. Conversely, if a consistent defense is supported by witness testimony, documents, camera footage, or other circumstances of the incident, the contrary of this defense must be demonstrated with concrete evidence.

In the Criminal General Assembly's decision regarding the bus conductor, the partial corroboration of the defense by a witness in the minutes was influential in evaluating the doubt in favor of the defendant. In the decision concerning the items claimed to have been brought for the wedding, the wedding invitation and police document were accepted as elements supporting the defense of personal use.

5.8. It must be proven that "He/She Knew," not that "He/She Should Have Known."

Smuggling offenses are, as a rule, not crimes that can be committed negligently. Therefore, considerations such as the defendant should have acted more carefully, failed to investigate the source of the goods, or suspected that they might be smuggled, are not sufficient for conviction on their own.

In particular, in types of crimes where the phrase "knowing this characteristic" is used in the legal text, the element of actual knowledge must be proven. A justification such as "they should have known" can transform intent liability into negligence or objective liability.

The perpetrator's profession, experience, and transportation conditions can help determine the element of knowledge involved. However, the fact that the defendant is a driver, transporter, or trader is not direct proof of intent to smuggle.

5.9. The Principle that the Accused Benefits from the Doubt

One of the most emphasized principles in Supreme Court rulings regarding the proof of intent to smuggle is the principle that "the defendant benefits from the doubt." According to the Criminal General Assembly, conviction must be based not on a high probability or assumption, but on certainty beyond any reasonable doubt. Unresolved doubts about the manner in which the event occurred or the defendant's intent cannot be interpreted against the defendant.

In this context;

• The inability to determine who the smuggled goods belong to,
• It remains unclear whether the defendant was aware of the existence of the property
• The inability to disprove the personal use defense,
• For commercial purposes, relying solely on the quantity of goods,
• Absence of evidence of communication, involvement, or surrender showing a connection between the perpetrator and the crime

In these cases, an acquittal may be necessary.

Overall Assessment

The Supreme Court's approach to determining intent in smuggling offenses is based on evaluating each specific case according to its own characteristics. While the quantity, value, and method of concealment of the goods are important factors in determining intent, none of these alone constitute absolute proof.

The court must first determine which knowledge and intent elements are required for the type of crime attributed to the defendant. Then, it must separately examine whether the defendant was aware of the smuggled nature of the goods, whether they committed the act willingly, and whether they acted for commercial purposes, if required by law.

The fundamental conclusion drawn from Supreme Court rulings is that hypothetical intent cannot be established based on the perpetrator's physical connection to the object, their profession, or their negligent behavior. For a conviction, there must be concrete, legally admissible, conclusive, and complementary evidence demonstrating that the defendant knew the material elements of the crime and intended to commit the act. If these conditions are not met, the principle of benefiting the doubt should be applied, and an acquittal should be granted.

6. PROBLEMS ENCOUNTERED DURING IMPLEMENTATION

Determining intent in smuggling cases is one of the most debated issues in practice. Intent, which relates to the perpetrator's inner world, is not a directly observable phenomenon. Therefore, courts determine the perpetrator's knowledge and will based on the external aspects of the event. However, during this assessment, the seizure of smuggled goods, the quantity of the goods, or the defendant's actual control over the goods are sometimes considered sufficient for the existence of intent; thus, a separate and detailed examination of the mental element of the crime may be neglected.

6.1. Failure to Correctly Determine the Type of Crime to be Applied

Article 3 of the Law No. 5607 on Combating Smuggling does not define a single smuggling offense, but rather numerous types of offenses regulated according to different actions and types of goods. The material and moral elements of these offenses differ from one another.

For example, Article 3, paragraph 5 of the Law punishes a person who, knowing the smuggled nature of the goods and for commercial purposes, purchases, offers for sale, sells, transports, or hides them, even if that person does not participate in the acts described in the first four paragraphs. In contrast, the crime of bringing goods into the country directly without undergoing customs procedures requires different elements.

In practice, convictions can be based on general statements without clearly defining which paragraph of the law the defendant's actions fall under. However, the defendant's initial participation in the smuggling act is not the same as their subsequent transportation or concealment of smuggled goods for commercial purposes. Incorrectly determining the type of crime leads to an erroneous assessment of which facts need to be proven regarding intent.

6.2. Presumption of Intent Based on Material Element

The seizure of smuggled goods in the suspect's vehicle, workplace, or in their possession may constitute significant evidence regarding the material aspect of the crime. However, a physical connection to the goods does not automatically prove that the suspect was aware of the smuggled nature of the goods.

In particular, convicting drivers, assistants, transporters, warehouse workers, and workplace personnel solely on the basis of their duties or responsibilities regarding the location of the goods may be incompatible with the principle of individual criminal responsibility. It should also be investigated whether the defendant was aware of the existence of the goods, whether they saw the contents of the goods, under what conditions they agreed to the transportation, and whether they obtained any economic benefit from the crime.

Failing to properly fulfill one's professional supervisory duties is not the same as knowingly acting on the knowledge that the goods are contraband. Carelessness or failure to conduct necessary checks may be considered negligence. However, since smuggling offenses, as a rule, cannot be committed through negligence, this alone is not sufficient for conviction.

6.3. Failure to Distinguish Between "Knew" and "Should Have Known"

One of the main problems encountered in practice is that instead of proving that the perpetrator knew the goods were contraband, the assumption is made that they "should have known.".

The fact that the goods are without an invoice, purchased at a low price, transported at night, or their origin cannot be clearly explained may indicate an element of knowledge. However, each of these facts must be evaluated in conjunction with all the specific circumstances of the case. Mere abstract suspicions that do not demonstrate that the perpetrator actually knew of the contraband nature of the goods are not sufficient to prove intent.

Especially in types of crimes where the phrase "knowing this characteristic" is used in the legal text, the court must demonstrate its reasoning regarding the defendant's actual knowledge. Assessments such as "the defendant should have known due to their experience," "they did not investigate whether the goods might be smuggled," or "they should have been aware of the situation according to the ordinary course of life," do not, by themselves, demonstrate the existence of direct intent. A contrary approach could lead to objective liability instead of liability based on fault.

6.4. Ambiguous Application of the Concept of Commercial Purpose

In some types of crimes under Law No. 5607, commercial intent is explicitly required for the crime to occur. However, since the law does not define commercial intent, significant differences in interpretation arise in practice.

The Supreme Court's Criminal General Assembly associates commercial intent with the aim of obtaining material or economic benefit; it accepts that this should be determined according to the specific circumstances of each case. If commercial intent is sought in the type of crime, it is not sufficient to assume this intent solely based on the existence or quantity of the goods.

Possessing an item for future sale may indicate a commercial purpose. However, if the item is acquired for personal or family needs, intended for use in a specific event, or for some other non-commercial reason, the element of specific purpose in the crime may not be met.

Therefore, when evaluating commercial intent, the type and quantity of the goods, their economic value, packaging method, whether they are ready for sale, the defendant's profession, social and economic status, customer connections, and other evidence related to the sale should all be examined together.

6.5. Quantity of Goods Being Considered the Sole Determinant Factor

The quantity of smuggled goods is an important indicator in determining the commercial purpose. However, quantity alone is not a definitive criterion that can be applied equally to all goods.

Certain types of cigarettes, alcoholic beverages, electronic products, or building materials may be subject to different assessments based on their usage characteristics. A quantity exceeding the personal use limit for one product may fall within the scope of ordinary personal or family needs for another.

The Supreme Court's Criminal General Assembly, in its decisions regarding the assessment of commercial intent, emphasizes that in addition to the quantity of the goods, the economic and social status of the perpetrator, the place and time of use of the goods, the manner in which they were possessed, and other evidence supporting the defense must be evaluated together.

The lack of standard and predictable criteria for personal use in practice can lead to differing decisions regarding similar quantities of goods. This creates problems in terms of legal certainty and predictability.

6.6. Insufficient Investigation of the Personal Use Defense

One of the most frequent defenses put forward by defendants is that the seized items were acquired for personal or family use. However, merely presenting this defense in an abstract manner is not sufficient for acquittal. The court should also not reject the defense solely based on the quantity of the items.

The wedding invitation, construction permit, travel information, family size, usage habits, shopping documents, witness statements, and economic status of the defendant should be investigated to corroborate their defense. Reaching a conclusion about commercial motives without gathering evidence that supports or refutes the defense may constitute an incomplete investigation.

In criminal proceedings, the burden of proof for the defendant's innocence is not present. Even if the defense of "personal use" is considered contrary to the ordinary course of life, the prosecution must demonstrate the contrary with concrete evidence.

6.7. Failure to Individualize Cases with Multiple Defendants

Smuggling crimes are often investigated based on goods seized from vehicles, workplaces, warehouses, or residences where multiple individuals are present. A significant procedural problem in these cases is holding all defendants responsible on the same grounds.

With regard to each defendant;

• The actual connection he establishes with the object,
• Whether or not he/she is aware of the existence of the item,
• Whether he/she knew about the smuggling nature of the situation,
• How he/she contributed to the commission of the crime,
• Whether or not they gained economic benefit,
• His relationship with the other defendants

They must be determined separately.

Traveling in the same vehicle, working in the same workplace, or being related to the owner of the property does not automatically demonstrate complicity. Failure to personalize the grounds for conviction for each defendant may lead to a violation of the principle of the individuality of criminal responsibility.

6.8. Inadequacy of Technical and Administrative Reviews

Determining whether goods are smuggled often requires a technical report, customs investigation, tax stamp examination, national marker analysis, or expert assessment. Reaching a conclusion that goods are smuggled based solely on the observations of law enforcement officers without conducting these investigations is inaccurate.

Whether the goods entered the country legally, whether customs duties were paid, whether the tax stamp is genuine, the contents of the product, and its market value should be inquired about from the relevant authorities. The reports should include information that will help assess not only the smuggling nature of the goods but also the veracity of the defendant's claims.

Certain types of goods are required to have a sufficient number of samples taken before destruction to allow for analysis, examination, or inspection. Insufficient sample collection, unclear storage conditions, or destruction without detailed inspection of the goods may limit the defendant's ability to conduct a subsequent counter-examination.

6.9. Decontextualization of Communication and Digital Evidence

Phone calls, text messages, location records, and digital payment transactions can be important in proving intent to smuggle goods. However, interpreting this evidence without establishing a direct link to the crime is problematic.

The fact that the suspect met with another person, gave off a base station signal at the crime scene, or made a money transfer does not, by itself, prove intent to smuggle. The content of the meeting, the reason for the money transfer, the commercial or personal relationship between the parties, and the connection of the records to the events on the date of the crime must be investigated.

The meaning of correspondence alleged to contain coded or veiled language should not be determined by assumption; the correspondence as a whole and the parties' prior relationships should be evaluated.

6.10. Making Contradictions in the Defense a Sole Ground for Conviction

The discrepancies between the defendant's statements during the investigation and prosecution phases may be considered in terms of the credibility of the defense. However, this inconsistency does not relieve the prosecution of the burden of proof to demonstrate all elements of the crime.

The defendant's silence, refusal to answer certain questions, or inability to identify the owner of the property cannot, by itself, be considered proof of guilt. Contradictory defenses can be used to determine intent only insofar as they are supported by other material evidence. The mere lack of credibility in the defense does not substitute for the positive proof required for conviction.

6.11. Failure to Discuss Intent in Reasoned Judgments

In some court decisions, after considering the quantity of the goods, the place of seizure, and the defendant's defense, the conclusion is directly reached that "it has been determined that the defendant acted with commercial intent." However, it should be clearly explained which evidence demonstrates the element of information and which demonstrates the element of intent or commercial purpose.

The right to a reasoned judgment requires the court to address the essential claims and objections raised by the parties. In particular, the reasons why defenses concerning the mental element of the crime—such as personal use, ownership of the goods, lack of knowledge of the contents of the transport, or the belief that the documents were valid—are not accepted must be explained with concrete justifications.

Conviction decisions based on abstract and stereotypical statements also make judicial review difficult. For the higher court to understand the evidence upon which its assessment of intent is based, a clear link must be established between the material facts and the legal conclusion reached.

6.12. Ineffective Application of the Principle that the Defendant Benefits from the Doubt

In smuggling cases, there may be unavoidable doubts regarding the ownership of the goods, whether the defendant was aware of their existence, or whether the smuggling was for commercial purposes. Interpreting these doubts against the defendant is contrary to the fundamental principles of criminal procedure.

A conviction should not be based on the possibility or high probability that the defendant committed the crime, but on the proof of guilt beyond any reasonable doubt. The Constitutional Court's decisions also state that the principle of the benefit of the doubt goes to the accused, and that the requirement for a reasoned judgment, are among the fundamental safeguards of criminal proceedings.

Proving that the goods are contraband and proving the defendant's intent to smuggle are two different matters. Even if the first point is established, if it cannot be proven that the defendant knew the nature of the goods and acted for the purpose required by law, an acquittal should be granted.

Overall Assessment

A fundamental problem encountered in practice regarding smuggling offenses is the insufficient distinction between the material and mental elements of the crime. The mere discovery of smuggled goods, the defendant's actual control over the goods, or the quantity of the goods exceeding a certain amount does not, by itself, prove the existence of intent.

For a sound assessment of intent, the type of crime to be committed must first be determined; then, it must be investigated separately whether the defendant knew that the goods were smuggled, whether the criminal act was committed willingly, and, if required by the type of crime, whether there was a commercial motive.

Judicial authorities must proceed from concrete and legally admissible evidence, not assumptions; they should not automatically establish liability based on the defendant's position, profession, or the location of the stolen goods. The evaluation of unresolved doubts in favor of the defendant and the clear indication in the conviction of the evidence used to prove intent are necessary consequences of fault-based liability and the right to a fair trial.

7. PROPOSED SOLUTIONS

To address the practical problems in determining intent in smuggling offenses, more systematic criteria need to be adopted in the legislation, investigation, prosecution, and judicial review phases. While effectively combating smuggling is important, this does not justify disregarding the principles of culpability, individual responsibility, and the benefit of the doubt for the accused. According to Article 21 of the Turkish Penal Code, intent requires the knowing and willful commission of the elements defined in the law; therefore, conviction should not be based solely on the seizure of smuggled goods.

7.1. The Mental Element of Each Type of Crime Must Be Clearly Defined

Article 3 of Law No. 5607 contains numerous types of offenses, each with different material and moral elements. Therefore, the investigative and prosecutorial authorities must first clearly determine under which paragraph the defendant's actions fall.

The legal status of a person who brings goods into the country directly without subjecting them to customs procedures is not the same as that of a person who, without participating in the smuggling act, subsequently transports, hides, or purchases the smuggled goods. In the latter case, it must be proven that the goods were known to be smuggled and that the action was taken for commercial purposes, if required by the relevant article.

Indictments and reasoned judgments should not merely contain general statements such as "committed the crime of smuggling"; the relevant clause to be applied, the information and purpose elements required in that clause, and the evidence demonstrating that the defendant fulfilled these elements should be explained separately.

7.2. The Distinction Between Intent and Negligence Must Be Maintained

In practice, the existence of intent is sometimes accepted on the grounds that "the defendant should have known that the goods were contraband" or "failed to conduct the necessary investigation." However, the fact that a person could have learned that the goods were contraband by being more careful does not necessarily prove that they actually knew that the goods were contraband.

In smuggling offenses, negligence, carelessness, or breach of duty to control should not, by themselves, constitute grounds for conviction unless negligent liability is specifically regulated. In particular, for carriers, drivers, assistants, warehouse workers, and workplace personnel, a clear distinction must be made between breach of professional duty of care and intent to smuggle.

Courts should proceed not from the conclusion that "he should have known," but from evidence that "it is established that he knew." The opposite approach could lead to the establishment of objective liability instead of fault-based criminal liability.

7.3. The Relationship Between the Expression "Knowingly" and Possible Intent Must Be Clarified

Certain provisions of Law No. 5607 explicitly require "knowledge" of a specific characteristic of the property. In practice, differing interpretations may arise regarding whether probable intent is sufficient for these types of crimes.

The perpetrator's mere suspicion that the goods might be contraband is not the same as seriously foreseeing and accepting this possibility. Therefore, the circumstances under which probable intent applies need to be defined more clearly in legal doctrine and judicial decisions, particularly for crimes that directly seek information.

The legislator could more clearly define whether direct knowledge is required in the wording of the crime types or whether probable intent is sufficient. Such clarity would increase legal certainty by preventing differing decisions in similar cases.

7.4. Common Evaluation Criteria Should Be Established for Commercial Purposes

According to Law No. 5607, certain actions must be carried out for commercial purposes to constitute a crime. However, the lack of a detailed definition of commercial purpose in the law can lead to differing decisions in practice based solely on the quantity of the goods.

Common criteria to be used in determining commercial purpose should be clarified through judicial precedents or practice guidelines. In this context;

• Quantity, type and economic value of the goods,
• The product's personal usage period and features,
• The way it is packaged and prepared for sale,
• The defendant's profession and economic status,
• Whether there are sales listings, customer interviews, or order records,
• Money transfer and business communication records,
• Whether the defendant has previously carried out similar transactions,
• Documents supporting the personal use defense

They should be evaluated together.

However, setting fixed and absolute quantity limits for every product may not be accurate. Cigarettes, alcoholic beverages, electronic goods, building materials, and fuel have different characteristics for personal use. Therefore, quantity should be used as an important indicator; however, it should not be transformed into a presumption of commercial intent on its own.

7.5. Personal Use Defenses Should Be Effectively Investigated

If the defendant claims that the seized items were acquired for personal or family use, this defense should not be dismissed with abstract statements. The court should, on its own initiative, investigate evidence that may support or refute the defense.

For example, if the item is claimed to have been purchased for a wedding, construction, travel, gift, or family needs, aspects such as wedding invitations, licenses, travel records, witness statements, family size, intended use, and economic situation should be examined.

The defendant is not obligated to definitively prove the personal use of the goods. The prosecution must establish the element of commercial use beyond any reasonable doubt. If the possibility of personal use cannot be ruled out given the circumstances of the case, this doubt should be considered in favor of the defendant. The Constitutional Court also considers the elimination of doubts and the defendant's ability to effectively present evidence as fundamental guarantees of a fair trial in criminal proceedings.

7.6. An Individualized Review Should Be Conducted for Each Defendant

In cases where contraband is seized in a vehicle, warehouse, workplace, or residence where multiple individuals are present, all defendants should not be held equally responsible. In accordance with the principle of individual criminal responsibility, each person's knowledge, intent, and contribution to the commission of the crime must be determined separately.

For each defendant;

• Whether or not he/she is aware of the existence of the object,
• Whether he/she was aware of the smuggling nature of the situation,
• Whether or not he/she has actual control over the property,
• How it participated in the transportation or storage process,
• Whether or not they gained economic benefit,
• Whether there is any criminal connection with the other defendants

It should be investigated.

The fact that the suspect was a passenger in the vehicle, worked at the same place, was a relative of the owner of the goods, or shared an area where the smuggled goods were found, does not, by itself, demonstrate complicity. The intention to participate and the joint decision to commit the crime must be proven with concrete evidence.

7.7. A Standard Evidence Gathering System Should Be Established During the Investigation Phase

Accurate assessment of smuggling intent depends on the complete collection of evidence from the very beginning of the incident. It is insufficient for police reports to merely state the quantity of goods and the location where they were seized.

In the minutes;

• The exact location of the item,
• Whether it was transported openly or concealed,
• Who prepared the concealment device?
• Who has control over the vehicle or area,
• The suspect's behavior before and during the search,
• Whether an invoice, delivery note, or transport document is available
• Initial statements regarding ownership of the property,
• Other persons who had access to the property

It should be shown in detail.

The location where the item was found should be documented with photographs and videos; relying solely on general reports that may have been prepared later is insufficient. This will allow for a more reliable assessment of the concealment method and the suspect's control over the item.

7.8. Standards for Technical Review and Expert Witnessing Should Be Developed

Determining the legal and technical nature of goods involved in smuggling offenses often requires expertise. Whether the tax stamp is counterfeit, the national marker level in the fuel, the import regime of the goods, customs duties, and market value must be determined by specialized organizations.

Expert reports should not simply conclude that "the goods are smuggled"; they should explain the technical methods used to reach this conclusion. The processes of sampling, preservation, analysis, and reporting must be verifiable.

In cases where evidence must be destroyed, sufficient samples must be preserved so that the defendant can exercise their right to have a counter-examination conducted; all evidence must be photographed in detail, and the chain of custody must be recorded. The lack or unverifiability of technical evidence makes it difficult to assess both the material subject matter of the crime and the defendant's defense.

7.9. Digital Evidence Should Be Evaluated in its Entire Context

Phone calls, text messages, bank statements, location data, and security camera footage can be important in determining smuggling intent. However, this evidence should not be interpreted out of context.

A suspect's meeting with another suspect, the detection of a cell tower signal at the crime scene, or a money transfer alone does not prove intent to smuggle. The content of the meeting, the explanation of the money transfer, the prior relationship between the parties, and the connection of the evidence to the events at the time of the crime must be investigated.

Lawfulness, data integrity, and the chain of investigation must be maintained when obtaining digital evidence. The case file should include not only fragments of messages selected by law enforcement, but also the entire conversation and any data that may be in the defendant's favor.

7.10. The Elements of Intent Should Be Discussed Separately in Reasoned Judgments

The Code of Criminal Procedure mandates that court decisions be reasoned. The conviction decision must explain which evidence was accepted, why the defenses were rejected, and on what grounds the elements of the crime were established.

In smuggling cases, clichés such as "considering the quantity of the goods, it has been determined that there was commercial intent" should be avoided. The court;

• The defendant was aware of the existence of the property
• He was aware of the smuggling feature,
• He stated that he performed the alleged act willingly
• He acted for commercial purposes

The evidence should be listed separately.

Conviction without addressing the defendant's substantial defenses—such as not knowing the contents of the goods, purchasing them for personal use, or relying on valid documentation—weakens the right to a reasoned judgment and judicial review.

7.11. Consistency and Accessibility in Supreme Court Jurisprudence Should Be Increased

Reaching different conclusions regarding similar quantities and types of smuggled goods reduces legal predictability. The Supreme Court needs to more clearly and consistently define the fundamental criteria regarding intent, personal use, and commercial purpose.

In smuggling cases, it is important for the appeals review to be conducted by the relevant criminal chamber, specializing in this area, in order to ensure consistency in jurisprudence. The Supreme Court's recent division of labor decision indicates that matters arising from Law No. 5607 fall within the jurisdiction of the relevant criminal chamber.

Case law regarding intent assessment should be made accessible, categorized according to topics such as personal use, carrier liability, concealment method, and commercial quantity. This would enable first instance and appellate courts to make more consistent assessments in similar cases.

7.12. Specialized training should be provided for practitioners

Smuggling crimes involve customs, tax, trade, criminal, and technical product legislation. Regular specialized training should be provided for judges, public prosecutors, law enforcement officers, and expert witnesses.

These trainings focus particularly on:

• The distinction between general caste and specific caste,
• The difference between possible intent and conscious negligence,
• Commercial purpose criteria,
• The responsibility of carriers and employees,
• Evaluation of digital evidence,
• Technical product reviews,
• The principle that the accused benefits from the doubt

This should be emphasized.

Specialization will not weaken the fight against smuggling; on the contrary, it will increase the effectiveness of investigations and prosecutions by ensuring that the real perpetrators are identified with accurate evidence.

Overall Assessment

Solving the problems related to the element of intent in smuggling crimes depends more on correctly determining the material and moral elements of the crime than on increasing the severity of the penalties. Accepting intent based on assumptions, for the sake of effective combat, risks punishing innocent people and may also lead to insufficient investigation of real criminal organizations and perpetrators.

Therefore, from the initial stages of the investigation to the verdict, evidence must be collected demonstrating that the defendant was aware of the smuggled nature of the goods and willingly committed the criminal act. Commercial intent should be evaluated not only by the quantity of goods but also by all the circumstances of the case. In court decisions, each defendant's actions should be individualized, and it should be clearly shown which concrete evidence establishes intent.

In conclusion, effectively combating smuggling and protecting the rights of defendants are not conflicting goals. An approach that adheres to the principle of culpability, the individuality of criminal responsibility, the requirement for reasoned judgments, and the principle that the defendant benefits from doubt will both protect the right to a fair trial and ensure a more effective and reliable fight against smuggling crimes.

8. CONCLUSION

Smuggling offenses are among the significant crimes aimed at protecting state customs control, public revenues, and the legal order of trade. However, effectively combating smuggling does not justify abandoning the fundamental principles of criminal law. For a person to be punished, it is not sufficient merely to seize smuggled goods or for the defendant to have a physical connection with them. In addition to the material elements of the crime, the mental element, especially intent, must also be proven beyond any reasonable doubt.

Article 3 of the Law No. 5607 on Combating Smuggling regulates numerous types of offenses according to different actions and types of goods. Therefore, before conducting an investigation of intent, it must be correctly determined under which paragraph the defendant's action falls. The mental element of a person who directly brings goods into the country without subjecting them to customs procedures cannot be evaluated with the same criteria as that of a person who subsequently transports, hides, or purchases smuggled goods without participating in the smuggling act.

Smuggling offenses are, as a rule, crimes that can only be committed intentionally. The perpetrator must know the existence and nature of the goods and the criminal act; they must carry out the act willingly. If the legal regulation explicitly requires knowledge of the smuggled nature of the goods and that the act is for commercial purposes, these elements must also be proven. The assessment that the perpetrator "should have known" that the goods were smuggled does not substitute for proof that they actually knew.

In Supreme Court rulings, factors such as the quantity and nature of the goods, the method of storage or transportation, the presence of invoices and shipping documents, the defendant's profession, the economic benefit obtained, the consistency of their defenses, and the manner in which the incident occurred are considered together to determine intent. However, none of these facts alone constitutes absolute proof.

In particular, the duty of a person or their responsibility regarding the location of the goods, such as drivers, assistants, transporters, warehouse workers, and workplace personnel, should not be accepted as automatic proof of intent to smuggle. In accordance with the principle of individual criminal responsibility, it must be determined separately for each defendant whether they were aware of the existence and smuggled nature of the goods, in what manner they participated in the crime, and whether they obtained any benefit.

In assessing the element of commercial intent, relying solely on the quantity of the goods is insufficient. The type of goods, their intended use, economic value, packaging method, whether they were ready for sale, the social and economic status of the perpetrator, and documents supporting the defense of personal use must all be examined together. The Supreme Court's practice demonstrates that a large quantity of goods does not necessarily imply commercial intent in every case; the specific intended use and the characteristics of the incident must be investigated.

The defendant's defenses regarding personal use, ignorance of the contents of the items being carried, or reliance on valid documents should not be dismissed with abstract statements. All evidence that can corroborate or refute these defenses must be collected; the reason why the defense is not accepted must be clearly stated in the reasoned judgment. The lack of credibility in the defense does not relieve the prosecution of the burden of proof regarding the elements of the crime.

The most significant problem encountered in practice regarding smuggling offenses is the assumption of intent based solely on the material element. However, determining that the goods are smuggled and proving that the defendant was aware of this are different matters. Even if smuggled goods are seized from the defendant's vehicle or workplace, a conviction cannot be established unless there is concrete evidence that the defendant was aware of the smuggled nature of the goods.

Therefore, from the investigation stage onwards, the location of the goods, the method of concealment, the transport documents, the suspect's initial statements, his/her communications with other individuals, and his/her financial transactions should be thoroughly investigated. Technical examinations, customs records, and expert reports should be collected completely; digital evidence should be evaluated without being taken out of context.

In court decisions, the elements of intent—knowledge and will—must be discussed separately. Standard phrases such as, "Considering the quantity and nature of the goods, it is understood that there was commercial intent," are insufficient. It must be clearly demonstrated which evidence shows the defendant knew the goods were smuggled, which evidence indicates that the defendant willingly committed the criminal act, and which evidence shows a commercial purpose.

In conclusion, the fundamental principle emerging from Supreme Court rulings is that intent to smuggle cannot be established based on assumptions, professional title, or solely the quantity of goods. Conviction must be based on legally admissible, conclusive, and complementary evidence demonstrating that the defendant was aware of all elements of the crime and committed it willingly.

The principle of "the benefit of the doubt goes to the accused" should be applied when there is an unresolvable doubt regarding intent or commercial purpose. Criminal liability based on fault, the principle of individual criminal responsibility, and the presumption of innocence must be fully protected in cases of smuggling offenses.

Effectively combating smuggling and protecting the rights of defendants are not contradictory. A system where the material and moral elements of the crime are meticulously investigated, each defendant's actions are individualized, and decisions are justified with concrete evidence will both guarantee the right to a fair trial and ensure that the real perpetrators are identified more accurately.