7th Symposium of Lawyers - Ali Ulusoy 2

“Diversity of controls and sanctions in goods road transport: helping your hauliers through the maze of unharmonised applications”

THE FRAMEWORK OF THE POLITICS OF CONTROL AND SANCTIONS RELATING TO THE INTRODUCTION OF GOODS ON THE CUSTOMS TERRITORY IN TURKEY

Prof. Dr. Ali ULUSOY
Professor of Law, Ankara University

I - CONTROL OF GOODS

a) Entry of Goods into the Customs Territory of Turkey

Goods brought into the Customs Territory of Turkey shall, from the time of their entry, be subject to customs supervision. They shall be subject to control by the customs administration in accordance with the provisions in force.

Goods brought into the Customs Territory of Turkey shall be conveyed by the person bringing them without delay, under the rules specified by the Undersecretariat of Customs:

(a) to the customs administration designated or to any other place approved by those administrations; or,
(b) directly to a free zone by sea or air, or by land without passing through a part of the Customs Territory of Turkey.

b) Presentation of Goods to Customs

Except for the goods that entered into free zones pursuant to the principles determined by the Undersecretariat of Customs, goods which arrive at the customs administration or other place designated or approved by the customs administrations shall be presented to customs by the person who brought the goods into the Customs Territory of Turkey or, if appropriate, by the person who assumes responsibility for carriage of the goods following such entry.

c) Summary Declaration and Unloading of Goods Presented to Customs

Goods presented to customs shall be covered by a summary declaration. The summary declaration shall be lodged to the concerned customs administration within working hours of the first working day following the date on which the goods are presented to customs.

Goods may be unloaded or transshipped from the means of transport carrying them with the permission of the customs administrations in places designated or approved by those customs administrations.

Goods can not be unloaded from the means of transport without submitting a summary declaration or a commercial or official document used as a summary declaration to the customs administrations.

However, such permission shall not be required in the event of the imminent danger necessitating the immediate unloading of all or part of the goods. In that case, the nearest customs administrations shall be informed accordingly forthwith.

For the purpose of inspecting goods and the means of transport carrying them, the customs administrations may if appropriate require goods to be unloaded and unpacked.

Goods shall not be removed from their original position without the permission of the customs administrations.

d) Obligation to Assign Goods Presented to Customs a Customs-approved Treatment or Use

Goods presented to customs shall be assigned a customs approved treatment or use.

e) Temporary Storage of Goods

Until such time as they are assigned a customs-approved treatment or use, goods presented to customs shall, following such presentation, have the status of goods in temporary storage.

Goods in temporary storage shall be stored only in places approved by the customs administrations under the conditions laid down by those administrations.

The customs administrations may require the person holding the goods in temporary storage to provide security with a view to ensuring payment of any customs debt which may arise.

f) Customs-Approved Treatment or Use

Save as otherwise provided under the Law, goods may at any time, under the conditions laid down, be assigned any customs-approved treatment or use irrespective of their nature or quantity, or their country of origin, consignment or destination.

Regarding the assignment of goods a customs-approved treatment or use, The Council of Ministers may adopt prohibitions or restrictions justified on grounds of public morality, public order or public security, the protection of health and life of humans, animals and plants, the protection of national treasures possessing artistic, historic or archaeological value or the protection of industrial and intellectual property rights.

The Council of Ministers is authorized to adopt prohibitions or restrictions or to apply different procedures or tariff, as a reprisal, for the goods and means of transport belonging to foreign countries which do not have an agreement made with Turkey on trade, customs, transportation or have partially or totally withdrawn from the provisions of the signed agreements unilaterally ahead of time or have adopted prohibitions or restrictions for Turkish means of land transport, vessels and aircraft or apply different procedures for them.

The importation of goods to Turkey having a name or sign, either on themselves or their inner or outer coverings, which shows or rises a suspicion that they are products of a country other than their producer countries shall not be permitted. Undersecretariat of Customs may permit their transit, storage in warehouses or likewise places, or re-exportation.

The importation of all kinds of blank envelopes, tapes, labels, stamps and likewise goods with prints or writings in foreign languages on them which shows or rises a suspicion that they are products of a foreign country into Turkey in order to be used for goods of Turkish origin and, with the exception of the proforma invoices of foreign firms not established in Turkey, the importation of blank invoices to Turkey, either signed or not, which may make documents issued in Turkey seem as issued in other countries shall not be permitted. Such goods of the firms established in Turkey and of the foreign firms which have signed agreements of license, royalty or patent shall not subject to this provision.

II - SANCTIONS

a) General Sanctions Envisaged in Customs Law No: 4458

The penalty provisions of Customs Law, shall apply to those who have violated the Law. Amercing fines and determination of these fines by administrative appeal bodies in accordance with this law, acting deliberately or not is not of importance. No further penalty shall be applied for those about whom a legal proceeding has been already taken and thus convicted of an offence more repressive than the penalties designated in Customs Law.

Where the same act concerns more than one of the penalties referred to in the articles or Customs Law, the article including more repressive penalty shall apply. Moreover, the application of the penalties in accordance with the provisions of this Law shall not preclude the implementation of other administrative sanctions imposed on those who committed these acts.

b) Penalties to be Charged on Operations that Result in Tax Loss

As a result of any declaration, examination and control following the delivery relating to goods under the free circulation procedure or temporary relief arrangement :

Apart from the existing duties, a threefold of these duties and shall be charged as fine in the case that any discrepancy occurs in the nature and characteristics of goods affecting the tariff treatment or in such measurements of goods as number and weight which are subject to taxation; and provided that the difference between the duties calculated pursuant to declaration, and the duties to be charged in accordance with the examination results, exceeds 5 %.

Apart from the customs duties regarding the deficit, a threefold of these duties shall be charged as fine in the case that the examinations and controls have demonstrated that the declared value of the goods subject toad-valorem duties is deficient when compared with the value determined in Articles 23 to 31 of Customs Law.

Although guarantee has been provided, if the goods wholly or partly removed from warehouses or designated places by the customs administration, without commencing the customs formalities or without the authorization of the customs administration after completing them, threefold of these duties shall be charged as fine as well as export or import duties of the removed goods.

Apart from the exportation and importation duties of the deficient goods, threefold of these duties shall be charged as fine; where some part of the goods have been demonstrated to be deficient as a result of the counting carried out in customs warehouses and in the areas designated by customs administration to place goods.

Apart from placing the goods under disposal, a fine at the amount of the export and import duties of the excessive goods, shall be charged; where excessive amount of goods have been detected as a result of the counting carried out in customs warehouses and in the areas designated by customs administration to place goods. Due account being taken of the responsibilities of the warehouse keepers or depositors, the fines mentioned herein, shall be severally charged from these in accordance with the controls.

In the default of demonstrating within the period prescribed by the customs administration, that the packages, proved to be deficient as a result of the amount registered in the summary declarations or the commercial or official papers used as summary declarations submitted to the customs administration by the owners, captains and agents of the vehicles, have not been loaded from their provenance or have been unloaded in another port or lost or stolen due to any accident or average; and provided that the tariff classification of the goods kept within these deficient packages can not be determined, a fine shall be charged on these goods, at an amount under their tariff classification or if tariff classification can not be determined, under the highest dutiable classification of the chapter in accordance with the nature and the description of the goods.

In default of demonstrating, within the period prescribed by the customs administration, that packages have been loaded at an amount exceeding the amount in its provenance in accordance with the amount registered in the summary declarations submitted to the customs administrations by the owners, captains or agents of the vehicles in accordance with the Articles 42-45 of this Law and registered in the commercial or official documents used as summary declaration; the mentioned goods shall be seized and confiscated, and a fine at the amount of CIF value of goods, shall be charged.

No proceeding shall be applied where deficiency and excessiveness in goods in bulk, do not exceed 3 %. The fines shall be received from the owners, captains or agents of the vehicles.

c) Fines Relating to Irregularities

A fine at the rate of one tenth of CIF in the case that the goods are subject to importation, and a fine at the rate of one tenth of FOB in the case that goods are subject to exportation, shall be charged from; those who have without authorization imported or exported or attempted to import or export the goods subject to relief from export and import duties through other places other than the customs administrations specified in accordance with the provisions of Article 33 of Customs Law; and those who have brought into or out such goods or who have attempted to bring into or out such goods, without going customs formalities, from the customs territory of the country.

The declarant of the goods subject to auction shall reserve the right to apply the customs administration and request that the concerned goods are placed under the free circulation entry procedure until the date on which the announcement of the auction is published. However, such a request shall only be accepted if the import duties of the concerned goods, fines, storing and handling charges and other expenses are borne by the declarant. Therefore the fine at the rate of 1 percent of the CIF value of the goods on foreign currency, shall be charged as TL to the declarant.

Without prejudice to the circumstances for which a separate penalty has been assigned, an irregularity fine of 30.000.000 TL shall be charged on those who have violated the formats and procedures laid down by the by-laws, regulations, notifications and instructions issued on the basis of Customs Law and the authorities granted therein. The irregularity fine shall be raised to from two times to six times in some cases mentioned in the law.

d) Law No: 5607 on Struggling with Smuggling

The purpose of this Law is to lay down smuggling offences and corresponding penalties and the principles and procedures for preventing, monitoring, investigating and judging smuggling activities.

Sanctions prescribed under the Law no: 5607 are as follows:

Importing any goods into Turkey subjecting them to customs formalities, shall be inflicted to imprisonment from 1 to 5 years and shall be amerced to judicial fine up to then thousand days.
Importing any goods into Turkey without paying or partly paying the customs taxes by means of using false documents, shall be inflicted to imprisonment from 1 to 5 years and shall be amerced to judicial fine up to then thousand days.
Leaving the goods carried in accordance with the transit regime and not subjected to free circulation in the customs region on contrary to the regime provisions, shall be inflicted to imprisonment from 6 months to 2 years and shall be amerced to judicial fine up to five thousand days.

Whoever carries out customs formalities by the use of false documents, for the alleged exit of the territory of goods temporarily imported under the customs transformation regime, for a specific use or in view of their transformation, shall be punishable by 6 months to three years of imprisonment and a fine up to a maximum of 5000 days sanctions.

Without participating to the commitment of the acts mentioned in the above paragraphs, purchasing, exposing for sale, selling, carrying or hiding the goods in question shall be inflicted to imprisonment from 6 months to 2 years and shall be amerced to judicial fine up to five thousand days.
To consign, sell or assign to a usage other than the import purpose or by knowing the characteristics to purchase or accept the goods imported with an exemption of customs taxes wholly or partly in accordance with their special laws shall be inflicted to imprisonment from 3 months to 1 year and shall be amerced to judicial fine up to five thousand days.
Importing the goods whose importing is forbidden by law, shall be inflicted to imprisonment from 2 to 6 years and shall be amerced to judicial fine up to twenty thousand days if the act does not form a crime requiring heavier penalty. Purchasing, exposing for sale, selling, carrying or hiding by having the knowledge that the goods’ importing is forbidden shall be inflicted to the same penalty.
Taking out or changing the goods, which is not subjected to free circulation, at warehouses or temporary storehouses, partially or wholly, without the permission of the customs authority shall be amerced to administrative fine of the twice bonded value of the goods.
Putting the goods brought into country within the framework of temporary import, inward processing and processing regime under customs control without subjecting it to customs formalities into free circulation shall be amerced to administrative fine of the twice bonded value of the goods.
Importing the goods whose importing is forbidden by general regulative administrative deeds, shall be amerced to administrative fine of the four times bonded value of the goods. If the goods is of no value, surplus or waste material, the administrative fine shall be calculated as twenty thousand TL per a ton for the goods delivered in the nature of bulk, four hundred TL per box delivered in package.
Importing the goods whose import is subjected to license, condition, permission, reduction or certificate of conformity or efficiency that certain institutions issues by means of misleading transaction and acts shall be amerced to administrative fine of the twice bonded value of the goods. If the goods is of no value, surplus or waste material, the administrative fine shall be calculated as five thousand TL per a ton for the goods delivered in the nature of bulk, one hundred TL per box delivered in package.
Exporting the goods from Turkey whose exporting is forbidden by law, shall be inflicted to imprisonment from 6 month to 2 years and shall be amerced to judicial fine up to five thousand days if the act does not form a crime requiring heavier penalty.
Exporting the goods whose exporting is forbidden by general regulative administrative deeds, shall be amerced to administrative fine of the two times bonded value of the goods. Exporting the goods whose export is subjected to license, condition, permission, reduction or certificate of conformity or efficiency that certain institutions issues by means of misleading transaction and acts shall be amerced to administrative fine of the half bonded value of the goods.
Taking advantage by means of disclosing as exporting is realized even though the exporting is not realized or benefiting from incentive, subvention or monetary refund pursuant to the provisions of law by disclosing the kind, amount, characteristic or price of the goods subject to the export realized in different values shall be inflicted to imprisonment from 1 to 5 years and shall be amerced to judicial fine up to ten thousand days.
Exporting the goods from Turkey which is subject to export by means of paying the customs taxes, without subjecting the goods to the customs formalities or without paying the customs taxes wholly or partly by means of misleading transactions and acts shall be amerced to administrative fine of two times bonded value of the goods.

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