partially or fully cases where payment of customs duties, According to the criminal element that will be useful to examine in two parts with customs blame.
Customs Law If not due to an action exemplary kabahat The said Law "Tax Loss Why be charged on operations Suspensions" in the section titled second 234, 235, 236, 237 and 238 Although it necessary to apply the provisions of Article; As a result of the process and deceptive behavior, or in other words, Moving intent In cases where a crime and customs duties partially or fully paid 5607 Law No. smuggling 3 Of the article 2 NC are the subject of paragraph.
In this article, subject, 5607 is thought to be discussed is the scope of the law should be the subject of a separate study of offenses.
5607 Law No. "Smuggling Crime entitled" 3 in article, 21 Total actual crime is defined. Said substance 19 The offenses referred to in paragraph Article, 6545 Some of the Turkish Penal Code No. The law is repealed by the Law Amending.
The said Law 3 Of the article 2 As stated in paragraph "Items, and deceptive conduct transactions with payment of customs duties partially or completely countries to put people, Two years up to five years in prison and up to ten thousand days it will be punished with a judicial fine. " The provision is located.
Paragraph text of the article in question, although customs duties partially or completely be defined as an offense to bring into the country without payment, process and deceptive behavior commission of the offense have been introduced prerequisite. In other words, The customs duty for goods alone being partially or completely create the crime of trafficking tuck home without paying, must take place so that deliberate process and deceptive behavior. At this point; customs office administrative penalty is applied for processing the misdemeanor, Whereas the presence of smuggling and consequently determined not by the administration of the penalty should be emphasized that the court made.
Of course, the Constitution 125 Article of "judicial review against all actions and acts of the administration." provision, which must be notified by the customs authorities and the accrued fines decisions are subject to judicial control. The Customs Code 242 in Article describes the administrative appeal process to be followed before the judicial. According to the Directorate of Customs communicated with the Regional Directorate of customs duties against fines, Regional Offices may be referenced against the refusal to jurisdiction. As a result; customs duties and administrative fines, although the decision of an administrative procedure subject as a final binding decision of the court is also provided.
At first glance, "Process and deceptive conduct" Customs duties in the presence of elements of the basis of partially or fully realized because of crime into the country without payment of goods, case questioned whether the presence of non-payment of customs duties; in an other saying, already managed by the non-payment of taxes, which has been determined to be accepted as an accurate data considered by the court on the matter. Below, With a different perspective, This assumption may not be valid at all times will be discussed.
Although organized Investigation Reports relating to customs and trade and smuggling of Auditors reports, Guidance and Inspection submitted to the Presidency of the Republic Prosecutor's Office Even though the ettiriliyor, The opening of public prosecution or turned ON, even if it is determined that no criminal court, Inspectorate does not go beyond the allegations are not proven to identify and before the law.
In this case, The court is to decide whether the officer detected the formation of smuggling "process and deceptive behavior" rather than wonder "non-payment of taxes" Is it becoming a decisive point would be to ask the question:.
Customs Law 197 Article of 1 In paragraph "Customs duties, It is notified immediately after the required assessment. " In the second paragraph is called, "Made audits determined to be taken as a result of no or omissions or 1 paragraph in the notice relating to customs duties can not be notified as specified, From the date of birth of the customs debt shall be made within three years. So far, Litigation regarding the incident where he was born of a customs debt will stop the timeout. " The provision is located. Therefore, Customs and Trade of Auditors to prosecute trafficking crimes allegedly reports issued at the time, Answered Reports are also regulated and examined by the commission after the assessment report is sent to the Presidency of Guidance and Inspection respective customs administrations to prevent customs duties to expire.
Customs Regulations "Criminal proceedings carried out according to various law puts entitled" 579 In the first paragraph of Article Article, “Act as a verb as well as the case could fall within the scope of the fight against smuggling or other criminal laws put, event management therefore examining the case supervisor, also detects whether or not the process according to other laws. "; In the second paragraph "As a result of the investigation or prosecution of the criminal law in the determination of a heavier fines or the decision given that the act constitutes a crime and that the crime due to the implementation of sanctions decided if given, finalization of the decision and sentenced the money collected is removed and the decision is taken according to the law, provided that the money is given back. " it is called.
These two substances in accordance with said, In addition to accruals required by the customs directorates and penalty decisions are communicated. One can go in as a constitutional right to judicial remedy against this decision, which, as noted above administrative proceedings, also consumed primarily administrative appeal route for it.
It is precisely at this point, "Process and deceptive conduct" condition prior to the detection of the presence of matter, After obliged parties expected the decision on the administrative and customs duties to go to judicial appeal, 5607 Law No. smuggling 3 Of the article 2 NC is essential to see the lawsuit in court that according to paragraph. Because of the required result of an administrative or judicial appeal if the appeal is found justified, If it is decided that there should be Unearned taxes, 5607 Law No. smuggling 3 Of the article 2 crime will occur in accordance with paragraph. because of; For existing non-tax "process and deceptive behavior" will also be investigated by the court of the intent of the question.
eliminate the legal basis for the provisions of the said dilemma, 6100 No. Code of Civil Procedure 165 article has been. "Dilatory problem" in the first paragraph under the heading located in the said Article "Shall be granted on a case, Another lawsuit, Whether a legal relationship exists regarding the determination of the administrative authority or partially or completely depending on if the impugned decision of the trial court or administrative authority until the conclusion of that trial can be held. " The provision is located. Thus criminal court, The decision on the appeal will give the customs authorities and / or taxes may be waiting for the decision of the court.
Here we want to draw attention to an issue, Obliged parties in terms of the objections made by the criminal court should ultimately result. Other words the; the rejection of his appeal against the obligation related to the regional directorate of customs offices will start on time with the decision to go to judicial review, In case of refusal of the time going to the offices of the judiciary will be finalized by the end of, case to go to tax court judgment against the decision of the appeals process -temyiz administration can also go to the taxpayer- Or on the date of the end of the appeal period expires attended the judgment will become final.
As a result; 5607 Law No. smuggling 3 Of the article 2 paragraph reading the text that occurs as a prerequisite "Process and deceptive conduct" As a pre-condition for the term - if it is claimed in the taxpayers appeal- It is understood that the customs duties should be finalized and the consequent punishment that was born in.
4458 Customs Law No.
5607 No. Anti-Smuggling Law
6100 No. Code of Civil Procedure
6545 No. Law on Amendments to Certain Laws of the Turkish Penal Code
Guidance and Inspection Department of the Ministry of Customs and Trade Regulation
ABOUT THE AUTHOR
Customs and Trade Specialist
Customs General Directorate
Tel: 0312 449 31 46
1973 He was born in Afyonkarahisar. He completed his primary and secondary education in Afyonkarahisar. 1999 In A.. He graduated from the Faculty of Political Sciences Department of International Relations. 2002 he began his career as an Assistant Specialist at the Customs Undersecretariat of Customs. Halen, Ministry of Customs and Trade Customs continues to serve as the General Directorate of Customs and Trade Specialist.