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HÜSEYİN YAVUZ –
UGM Legislation Director
Considering the severity of the material penalty within the rules of good faith, it is thought that there is a public interest in mitigating simple errors that cannot be autonomously controlled by the BİLGE system, regardless of the guiding or directive effect of the administration, “within the framework of facts such as the act/penalty balance and the basic principles of law”, by adding them to at least Article 241 of the Customs Law or the first paragraph (c) of Article 234, which provides for a reduction in the penalty.
The Constitution of the Republic of Turkey, Article 38, titled “Principles Regarding Crimes and Penalties”, stipulates that “no one can be punished for an act that was not considered a crime by the law in force at the time it was committed, and no one can be given a heavier penalty than the penalty set for that crime by law at the time the crime was committed”; Article 73 states that “taxes, duties, charges and similar financial obligations can be imposed, changed or abolished by law”; and Article 167 states that “the President can be authorized by law to impose and abolish additional financial obligations other than taxes and similar obligations on import, export and other foreign trade transactions to regulate foreign trade for the benefit of the country’s economy”.
THE PRINCIPLE OF “PROPORTIONALITY” IN LAWMAKING REGULATIONS…
In this context, as a requirement of the principle of the rule of law; the legislator has bound himself with the “principle of proportionality” while making regulations. This principle consists of three sub-principles: “convenience”, “necessity” and “proportionality”. Convenience means “the measure applied must be suitable for the purpose sought to be achieved”; necessity means “the measure applied must be necessary for the purpose sought to be achieved”; and proportionality means “the necessary measure between the measure applied and the purpose sought to be achieved”. When viewed in this sense, this principle brings with it the obligation to establish a reasonable balance between the sanction envisaged by the legislator due to non-compliance with a rule or regulation and the purpose sought to be achieved, by “proportionality”.
Proportionality is an important element in achieving the purpose of prevention by punishment, and for prevention to be achieved, punishment must be sufficient and must deter the criminal/offender from committing the crime/offense. Thus, it would not be wrong to say that "for punishment to produce the expected result, it will be sufficient for the damage it causes to exceed the benefit the criminal will gain from the crime."
ELEMENTS IN THE DECLARATION THAT BIND THE DECLARER…
In the third paragraph of Article 61 of the Customs Law, it is stipulated that “the registered declaration binds the declarant as a commitment for the taxes and fines of the goods to which it belongs and will be the basis for the accrual of customs duties”; in the second paragraph of Article 181, it is stipulated that “the person liable for customs liability in import is the declarant, in the case of indirect representation, the person on whose behalf the customs declaration is made is also liable, in indirect representation, the liability of the representative is limited to situations where he knows or should have known due to his profession and customary practice that the data used in the declaration is incorrect”, and in the third paragraph, it is stipulated that “… if the data used in the declaration causes the taxes that should be collected by law not to be collected completely or partially, the persons who provided this data for the declaration to be made and who knew or should have known that this data was incorrect will also be liable for customs duties”.
In line with these provisions, we can say that “in the case of customs liability, the person liable is the declarant, in the case of indirect representation, the person on whose behalf the customs declaration is made is also liable, and in the case of indirect representation, the liability of the representative is limited to the situations where he knows or should have known due to his profession and custom that the data used in the declaration is incorrect.”
NOT TO IGNORE THE PRINCIPLE OF HONEST BEHAVIOR AND GOOD FAITH…
When looking at the issue from this perspective, it is important in terms of the health of the transactions and the protection of good faith that “the principle of honest behavior and good faith, including the acts listed” is stated in the second paragraph of Article 3 of the Anti-Smuggling Law and Article 234 of the Customs Law titled Penalties to be Applied to Transactions that Cause Tax Loss.
To be able to talk about “fraudulent or deceptive transactions and behavior” during the completion of customs transactions, an evaluation should be made on a case-by-case basis, considering that the actions taken must meet the following minimum conditions. It should be taken into consideration whether the declaration misleads the customs administration, makes a mistake, is false and deceptive, the fraudulent behavior is a certain amount heavy, intense, or skillful, eliminates the possibility of inspection in terms of the way it is expressed and displayed, and whether it provides an unfair advantage. In addition, it is necessary to reach a judgment by evaluating whether there is a deceptive characteristic (capability to seduce) and whether the liable party acted within the framework of the "principle of honest behavior and good faith" by taking into account the moral element of the crime, namely intent (although intent is not required in a crime, participation is only possible with intent) and the "facts that customs duties were not paid partially or completely" together. As a result, it is thought that it would be a more correct behavior in line with legal principles to stay away from a wholesale understanding and to make a decision within the framework of honest behavior and good faith principles in line with the harmony of the act committed and the documents presented.
DISPROPORTIONATE PENALTY FOR IMMEDIATELY OBSERVABLE ERRORS IN DATA ENTRY…
For example, declaring the value of $17,000 as $1,700 on the invoice submitted to the customs as an attachment to the declaration form, which is not considered a material calculation error, and imposing a fine of three times the direct tax difference for an incorrect data entry that can be immediately understood as a result of a simple check by the customs administration, can be said to be a heavy penalty “considering the severity of the material penalty within the framework of good faith rules and the balance of act/penalty”.
CONCLUSION…
The expressions in the 16th paragraph of Article 3 of the Customs Law, “customs declaration, requesting that the goods be subject to a customs regime within the framework of the determined procedures and principles” and in the third paragraph of Article 61, “the registered declaration binds the declarant as a commitment for the taxes and fines of the goods to which it belongs and is the basis for the assessment of customs duties”, have brought about the Law being a law based on declaration regarding the accuracy and binding nature of the declaration of the liable person.
In this context, by Article 234/1-(a) of the Customs Law titled Penalties to be Applied to Transactions Causing Tax Loss, applying a fine of three times the tax difference and applying the participation rule and, depending on the situation, simultaneously carrying out the transaction by the second paragraph of Article 3 of the Anti-Smuggling Law No. 5607, appear as a severe sanction.
Considering the severity of the material penalty within the rules of good faith, it is considered to be in the public interest to mitigate such simple errors, which cannot be autonomously controlled by the BILGE system, independently of the guiding or directive effect of the administration, “within the framework of facts such as the act/penalty balance and the basic principles of law”, by adding them to at least Article 241 of the Customs Law or subparagraph (c) of the first paragraph of Article 234, which provides for a reduction in the penalty.
