Smuggling, within the scope of the Anti-Smuggling Law in Türkey, is included in our criminal law. The Anti-Smuggling Law is a special law that regulates the crime of smuggling and defines multiple actions that constitute the crime of smuggling within its content. Therefore, it is not possible to provide a single definition of the crime of smuggling. However, if we make a basic definition: smuggling refers to the entry of various goods into countries without subjecting them to customs procedures. It is important to note here that the smuggled item being bring into or taken out of the country is “goods”; in practice, this is also referred to as “customs smuggling.” This crime has no connection with what is known as migrant smuggling, which is not regulated by this law. Therefore, attention must be paid to the difference between migrant smuggling and goods smuggling.
The acts constituting the crime of smuggling are comprehensively regulated in Article 3 of the Anti-Smuggling Law No. 5607 and should be evaluated together with the Turkish Criminal Code.
Additionally, special legislation applies to the crimes of arms smuggling, drug smuggling, illegal tobacco and alcohol production, and smuggling of cultural and historical artifacts, rather than Law No. 5607.
To understand the elements of the crime of smuggling, the following decision is worth examining:
“The act of entreing goods into free circulation within the Customs Territory of the Republic of Turkey without undergoing customs procedures, despite using the customs gates where customs region entry and exit and customs procedures are performed as stipulated in Article 33 of Law No. 4458 and Article 72 of the Customs Regulation, is defined as a crime.
The term ‘goods’ mentioned in the paragraph, according to paragraph twenty-three of Article 3 of the Customs Code No. 4458, refers to any kind of substance, product, and value. The subject of the crime can be any kind of goods. However, goods whose entry into the country is prohibited by law (Article 3/7 of Law No. 5607), commercial goods found on passengers, among their belongings or in their vehicles contrary to their declarations (Article 6/4 of Law No. 5607), and duty-free goods (Article 239/1 of the Customs Code) will not be considered under the first paragraph of Article 3 of Law No. 5607.
Although there is no definition of the term ‘customs formalities’ in Law No. 5607, the repealed Law No. 4926 in its Article 2 titled ‘Definitions’ defined ‘customs procedure’ term as, ‘the procedures carried out by customs authorities in accordance with customs legislation and other relevant legislation.’ According to this definition, customs procedure includes all necessary procedures for a good to be subjected to an approved transaction or use by customs authorities, either under customs legislation or other relevant legislation. Goods brought into the Customs Territory of the Republic of Turkey can only be brought into the country after being subjected to an approved transaction or use by customs authorities.
Accordingly, for an item to be subject to smuggling, it must be imported into the country without undergoing customs procedures. What is significant in the formation of the crime are the customs procedures, understood as the approved transaction or use of the goods to be imported or exported by the customs authorities” (General Assembly of Criminal Chambers 2020/268 E., 2022/736 K.)
