Law No. 5607 on Combating Smuggling

ENTRANCE

  The protection of the financial and economic order within the sovereign rights of states is vital for maintaining national security and social welfare. In a globalized world, the permeability of borders and the increase in commercial mobility have made smuggling activities, which threaten the customs sovereignty, tax revenues, and fair market competition of states, more complex and difficult to combat. In the Turkish legal system, the Law No. 5607 on Combating Smuggling was enacted to combat this multifaceted type of crime, prevent unregistered activities that cripple the economic order, and protect public peace and security.

Beyond general criminal norms, this law, which contains its own procedural rules, dynamic crime definitions, and special sanction regimes, aims not only to prevent financial losses but also to cut off the financial lifelines of international organized crime networks. Regulating a wide range of crimes, from the smuggling of goods into the country without customs procedures to import and export irregularities carried out using forged documents, and to specific and qualified areas such as fuel, tobacco, alcohol, and cultural artifact smuggling, Law No. 5607 is one of the most dynamic instruments of economic criminal law. With this text, the legislator has strived to maintain a high level of deterrence through penalties while simultaneously striking a delicate balance between property rights, the right to a fair trial, and the principles of restorative justice.

This study will examine the place and importance of Law No. 5607 on Combating Smuggling in modern criminal law; the basic types of crimes regulated in the law, the purpose of these crimes, legal disputes frequently encountered in practice, and especially the special provisions that directly affect criminal responsibility will be subjected to a detailed analysis in light of doctrinal discussions and judicial practices.

CHAPTER 1: Purpose and Definitions of Crimes Covered by Law No. 5607

  The law first regulates smuggling offenses and their penalties, and then the methods and principles related to preventing smuggling crimes.

 The law prescribes an extremely broad, detailed, and technical range of criminal offenses to protect the state's financial sovereignty, customs order, and fair market competition. These offenses, outlined in Article 3 titled "Crimes and Offenses," are primarily grouped around two main axes: irregularities in import and export processes, and the illegal trade of goods requiring specialized expertise.

The most common criminal offense in this context is bringing goods into the country without subjecting them to customs procedures or from outside customs checkpoints (i.e., classic import smuggling) or bringing into the country goods whose import is legally prohibited. In addition, bringing goods into the country by partially or completely avoiding customs duties using forged or deceptive documents, and illegally releasing goods that should only pass through the country under the transit regime or are held in customs warehouses into the domestic market and leaving them within the country are also considered serious crimes in the import dimension. In the export dimension, exporting goods whose export is legally prohibited or presenting goods that do not actually exist or have a different nature as exported in order to obtain unfair gains from incentives, financial support, or tax refunds is defined as a crime. The law holds not only those who smuggle these goods across the borders but also those who knowingly purchase, offer for sale, transport, or store these goods for commercial purposes equally liable.

Furthermore, the legislator has also created specific criminal offenses targeting certain private sectors that directly threaten public health, state tax revenues, and public safety. Accordingly, fuel smuggling (production and sale of fuel without national markers or containing counterfeit markers), and the production, importation, possession for commercial purposes, and sale of tobacco, tobacco products, cigarette filters, cigarette rolling papers, ethyl alcohol, and alcoholic beverages without tax stamps, labels, counterfeit barcodes, or illegal logos constitute specific criminal offenses subject to much harsher penalties under the law.

SECTION 2: Examples of Supreme Court Case Law within the Scope of Law No. 5607

*Officers on patrol at the border seized 60 kg of smuggled tea that had been illegally brought into Türkiye from Syria (via wire fences). Three suspects were identified at the scene. The seizure of smuggled goods while attempting to enter the country from the border, or immediately afterwards (without interruption), constitutes the crime of smuggling under the second sentence of Article 3/1 of Law No. 5607.

The ruling stated that the act constituted an uninterrupted process because the perpetrator was caught attempting to smuggle the goods into the country through a customs checkpoint or border crossing, or immediately afterward. Therefore, it was emphasized that the act was considered a "continuous crime," and that Article 3/1, sentence 2 of Law No. 5607 should be taken into account in punishing the defendants. Punishment was requested under Article 3/5 of the same law.

According to Article 4/2 of Law No. 5607, the commission of the crime of smuggling by three or more persons together constitutes an aggravating circumstance and necessitates an increase in the penalty. The insufficient sentencing in the decision: Although it was determined that three individuals acted together in the incident, it was stated that the local court did not apply this increased penalty to the defendants and imposed an insufficient sentence. The Supreme Court found the appeals of the defendants and the plaintiff's (complainant's) lawyer to be justified. The local court's judgment was found to be contrary to the law, and it was unanimously decided on June 16, 2016, to OVERTURN it in accordance with Article 321 of the current Code of Criminal Procedure No. 1412. (7th Criminal Chamber, 2014/29925 2016/8553)

*The defendant was apprehended at a customs checkpoint while entering the country as a passenger, possessing cigarettes that were not of commercial quantity or quality and were not exempt from import restrictions. The local court acquitted the defendant regarding these goods, which were not prohibited from import; however, it ordered the confiscation (transfer to the state) of the seized cigarettes. The Supreme Court of Appeals stated that the acquittal decision regarding the cigarettes was correct, but the decision to transfer ownership of the cigarettes to the public (confiscation) was incorrect. Procedure to be Applied: According to the relevant articles of the law, instead of directly ordering the confiscation of these non-commercial goods, they should have been sent to the Customs Administration for further action. Supreme Court of Appeals Decision: The local court's confiscation decision was found to be contrary to the law, and the appeal of the participating customs administration representative was deemed justified, resulting in the unanimous reversal of the judgment on July 3, 2014. (7th Criminal Chamber, 2013/16600, 2014/14169)

*The file contains two separate incident reports dated August 6, 2009 and August 27, 2009. During operations on these dates, two ownerless horses (without anyone present at the time of seizure) and a total of 900 cartons of smuggled cigarettes (300 cartons of Prestige and 600 cartons of United brand) loaded onto these horses were seized. Law enforcement investigations alleged that these smuggled cigarettes belonged to an individual from a specific village, whose name is withheld in the text, and a public prosecution was initiated against the defendant based on this allegation. In his defenses during the trial, the defendant absolutely denied the contents of the incident report. The defendant only stated that the seized horses belonged to him. However, he claimed that he had no connection, knowledge, or involvement with the smuggled cigarettes on these horses. The Court of Cassation criticized the local court, stating that it had reached a verdict based on unlawful grounds and insufficient investigation, making the following points: The Signatories of the Report Were Not Heard: The officials who prepared and signed the incident report were not heard as witnesses by the court. It was necessary to clarify what information, findings, and evidence these individuals possessed to support the claim that the smuggled cigarettes belonged to the defendant.

Erroneous Justification: The local court, in its conviction decision, relied on an abstract and unlawful justification stating that "the defendant's statements cannot be relied upon due to the conditions of the region...". The Court of Cassation found it unlawful to directly invalidate the defendant's statement by citing regional conditions instead of concrete evidence. The defendant's appeals were deemed justified due to the incomplete examination and erroneous justifications listed above. The conviction decision given by the local court was unanimously OVERTURNED on December 30, 2013, in accordance with Article 321 of the Code of Criminal Procedure No. 1412. (7th Criminal Chamber, 2013/4060, 2013/25290)

*A truck and its driver arriving at the Kapıkule Truck Customs Area from Bulgaria to enter Türkiye were processed. Following entry and customs registration procedures, the police, suspecting the vehicle and based on risk criteria, sent the truck to an X-Ray scanning device. Before the vehicle underwent X-Ray scanning, the suspect was asked if they had any goods subject to customs duties, and the suspect declared in writing that they did not. Following the X-Ray scan, a search of the vehicle revealed an additional tank (supplementary tank) designed to be difficult to detect from the outside, in addition to the main fuel tank. The smuggled fuel in question was seized from this additional tank. The text states that the discovery of smuggled fuel in this additional tank, outside the main tank, after the suspect declared in writing that they had no goods subject to customs duties, constitutes the elements of the crime. It is established that the fuel in this additional tank, which was difficult to detect from the outside, was intended to be imported into the country without undergoing customs procedures. Therefore, the defendant should be convicted for this act. Although the first instance court (local court) accepted that the defendant's act was importing goods without being subject to customs procedures, it acquitted the defendant on an erroneous basis. The appeals of the plaintiff's (complainant/institution's) representative were found justified and valid by the Court of Cassation. The acquittal decision of the local court was found to be unlawful. It was unanimously decided on December 10, 2013, that the judgment should be REVERSED due to its illegality, in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which is in force pursuant to Article 8/1 of Law No. 5320. (7th Criminal Chamber, 2013/1797, 2013/23824)

*On the date of the crime, a group that illegally crossed from Iran into Turkish territory was spotted and pursued by security forces, resulting in the seizure of 1560 liters of smuggled Iranian diesel fuel in 26 60-liter jerrycans. This action, carried out via illegal routes outside the border crossing, constitutes the crime of smuggling as defined in Article 3/1 of the Law No. 5607 on Combating Smuggling, as it falls under the category of being caught after crossing the border with smuggled goods. The local court's erroneous decision, which failed to consider that this action constituted the crime under the relevant article of the law, led to the appeal of the plaintiff's lawyer being found justified. This judgment, which was contrary to legal procedures, was unanimously overturned on May 16, 2013, in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which is still in force by way of Article 8/1 of Law No. 5320. (7.CD 2013/4539, 2013/11001)

*In smuggling offenses involving goods illegally brought into the country or traded domestically, the revenue lost by the state due to the non-payment of customs duties and other equivalent taxes and financial charges stipulated during import is considered "public damage"; however, while the application of the Suspension of the Announcement of the Verdict (HAGB) institution under Article 231 of the Criminal Procedure Code requires the compensation of this public damage, the court misled the defendant by stating that the "customs value" constituted the public damage, and ruled that the legal conditions were not met because this high damage could not be paid, thus deciding that there was no basis for applying HAGB. The Supreme Court, emphasizing that the actual public damage is not the customs value but only the unpaid customs duties and financial charges, found the local court's erroneous assessment to be contrary to law, upheld the defendant's appeal, and reversed the judgment pursuant to Article 8/1 of Law No. 5320. The court, pursuant to Article 321 of the Code of Criminal Procedure No. 1412, unanimously overturned the decision on January 23, 2013, upon referral of the relevant article. (7th Criminal Chamber, Case No. 2010/12975, 2013/1697)

*Customs legislation states that, except for cases where exemptions and exceptions are granted for the importation of goods into the country, no exemptions or exceptions are granted for the importation of goods outside of customs checkpoints. Article 3/1 of the Law No. 5607 on Combating Smuggling stipulates that a person who imports goods into Türkiye without subjecting them to customs procedures shall be punished with imprisonment from one to five years and a judicial fine of up to ten thousand days, and that if the goods are imported into Türkiye outside of customs checkpoints, the penalty shall be increased by one-third to one-half. The decision emphasizes that, in order for Article 3/5 of the aforementioned law to be applicable, if the defendants return to the country illegally with the goods they obtained after leaving the country illegally, they should be punished directly under Article 3/1, regardless of whether the goods they brought back were of a commercial nature. In the specific case, it was established that the defendants, having illegally entered another country and purchased the goods in question, then illegally imported them into the country from outside the customs checkpoint. Regardless of whether the imported goods were of a commercial nature, the defendants should have been punished in accordance with Article 3/1 of Law No. 5607 and its related aggravating circumstances. However, the local court rendered an erroneous judgment. Accordingly, the appeals of the local Public Prosecutor and the participating administrative representative were deemed valid, and the local court's judgment, found to be contrary to law, was unanimously overturned on September 11, 2012, in accordance with Article 321 of the Code of Criminal Procedure No. 1412. (7th Criminal Chamber, 2010/10779, 2012/23747)

*The sale of petroleum products, commonly known as "number ten oil," which have been converted into fuel, is directly considered "illegal petroleum" under the Petroleum Market Law No. 5015. According to subparagraph (c) of paragraph 21 of article 2, titled "Illegal Petroleum," of the relevant law; fuel obtained from petroleum products other than fuel, such as solvents, mineral and base oils, asphalt, solvent naphtha, and similar petroleum products, or products used or possessed for the purpose of converting them into fuel, without permission from the Energy Market Regulatory Authority (EPDK), are considered illegal petroleum. In the specific case, it has been established that the substances sold by the defendants were petroleum products converted into fuel (number ten oil). Therefore, considering that the defendants' actions fall within the scope of Article 5 of Law No. 5015, they should be punished for this crime, and a written conviction should not be established under Law No. 1705 on the Prevention of Adulteration in Trade and the Supervision and Protection of Exports, which is inconsistent with the case file. Since the local court disregarded this legal framework and rendered a judgment based on an erroneous article of law, the appeal of the Chief Public Prosecutor was found justified, and the local court's unlawful judgment was overturned on June 5, 2012, by a majority vote (with unanimous vote regarding the reversal of the judgment) in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which is in force by way of reference to Article 8/1 of Law No. 5320, with the dissenting opinion of member Orhan Koçak. (7.CD 2010/12257, 2012/21934)

     CHAPTER 3: General Assessment and Conclusion Regarding Law No. 5607

 A general legal assessment of Law No. 5607 on Combating Smuggling reveals that it is not merely a punitive normative text, but rather a multi-functional and dynamic shield protecting the state's financial security, customs sovereignty, public health, and fair competition in the free market. Aimed at paralyzing the financial mechanisms of transnational criminal organizations in the face of globalized and digitized trade networks, this law, with its technical definitions of crimes, progressively increasing sanction regimes based on the customs value of goods, and severe penalties for sophisticated smuggling types (fuel, tobacco, alcohol, etc.), is one of the most deterrent instruments of economic criminal law. However, the law's true success lies in the delicate balance it attempts to strike between the strict and uncompromising nature of its fight against crime and the principles of restorative justice and proportionality, which are indispensable elements of modern law. Indeed, through the provisions on effective repentance included in the legislation, on the one hand, the tax and customs losses suffered by the state and the public are promptly compensated, minimizing treasury losses, and on the other hand, the aim is to reintegrate criminals into society by opening the door to reduced sentences or impunity for those who cooperate sincerely with judicial authorities. As frequently emphasized in the established jurisprudence of the Supreme Court of Appeals, in order to avoid undermining fundamental constitutional guarantees such as the right to property and the right to a fair trial, it is vital for the courts to properly issue warnings of effective repentance to defendants and to base the determination of public damage on equitable criteria for the realization of justice in accordance with the spirit of the law. In conclusion, Law No. 5607 will continue to be one of the strongest guarantees of social welfare and financial order in the Turkish legal system to the extent that it protects the line between public interest and individual rights and freedoms, can soften the shortcomings in judicial practice with the constructive interpretations of the Supreme Court of Appeals, and can adapt to the evolving nature of economic crimes.