IS A COMMITMENT REQUIRED?

Hüseyin Cahit SOYSAL
Board member

We see that the Customs Regulation requests six letters of undertaking. I cannot even count the letters of commitment requested through notifications and circulars. The third paragraph of Article 130 of the Regulation states, "In case the delivery of the goods to be subjected to analysis is requested by the obligor without waiting for the analysis result, the amount corresponding to the difference between the tax rate corresponding to the declared customs tariff statistical position of the goods and the highest tax rate in the declared chapter is secured by Provided that a commitment in Annex 17 is obtained from the obligor stating that the goods will not be used until the analysis of the goods is completed, and a report in Annex 25 is prepared in the presence of the declarant or his representative to be kept at the customs administration, and a witness sample is taken from the goods and kept in a place deemed appropriate in the customs administration. It has the provision that "it is delivered to the trustee on the condition that.

The letter of undertaking form is also included in Annex 17 of the Regulation. In the letter of undertaking, "According to the provisions of the Customs Law No. 4458 and the Customs Regulation, when the goods to be analyzed sent to the customs laboratory are delivered to me without waiting for the analysis result, I will not use the goods until the analysis is completed, and if I use them, the provisions of the Anti-Smuggling Law No. 5607 will be applied to me; I will pay the taxes and funds that will be charged to me based on the report prepared as a result of the analysis; In case of any goods that are contrary to the agreements and contracts to which Turkey is a party, the relevant penal provisions written in Law No. 4458 shall be applied to me; All taxes, duties, duties, etc., which were received incompletely for any reason at the date of this undertaking. "I undertake and agree to pay the financial obligations to the relevant customs accountancy cashier when first requested, without any objection, if requested by us later, and to fulfill my administrative, financial, and legal obligations that may arise in line with the Customs Law No. 4458 and the Law No. 6183 on the Collection Procedure of Public Receivables."

In the 1st paragraph of the 478th article of the same Regulation, titled "Bunker and port dealers who can follow up transactions directly at the customs," the conditions required for being a bunker and port dealer in bonded areas are listed, while in the 2nd paragraph, "Documents proving the above-mentioned issues together with the guarantee are annex-75" Companies that fill out the letter of undertaking and submit it to the relevant customs; It can carry out operations regarding the supply of oil and fuel to ships."

In the undertaking in Annex 75, it is stated that "By the Customs Law No. 4458, we will comply with all the issues stipulated by the Customs Law No. 4458 and the Customs Regulation, while following up the transactions regarding the supply of oil and fuel to the ships that are in free circulation or not in free circulation, and which are not in free circulation, before the customs administrations; Otherwise, we accept and undertake to apply the provisions of the Customs Law No. 4458, the Law No. 1567 on the Protection of the Value of Turkish Currency and the relevant Decision and the Anti-Smuggling Law No. 5607 regarding our company officials.

In the first paragraph of Article 512 of the Customs Regulation, titled "Requirements to be sought for temporary storage operators," it is stated that "the chairman and members of the board of directors of real persons and legal entities who apply to open a temporary storage place, and real persons who own 10% or more of the company capital" are subject to criminal convictions against them for certain crimes. The condition of not having a conviction is required. The third paragraph of the same article states that "Written declarations of foreign persons residing abroad among the persons listed in the first and second paragraphs are taken into account and that they have not committed the crimes listed in the first paragraph." A similar provision is included in the fifth paragraph of Article 518, titled "Warehouse Investment Permit."

Although this is the case, in Annex 52 of the Customs Regulation there is a sample of a "letter of undertaking", not a "written declaration form", and the undertaking includes the following: "Enumerated in the Turkish Penal Code No. 5237; international crimes, crimes against the security of the state, crimes against the constitutional order and the functioning of this order, crimes against state secrets and espionage, embezzlement, extortion, bribery, abuse of trust, theft, fraud, forgery, abuse of faith, fraudulent bankruptcy, false testimony, crimes of fabrication and slander, bid rigging, tampering with the performance of an act, crimes of laundering property values ​​resulting from crime, tax evasion or attempted tax evasion crimes, customs smuggling or customs smuggling crimes, oil smuggling crimes, drug smuggling crimes, wrongful acquisition of goods "I undertake and declare that I have not been punished for any crime in accordance with the legislation of Turkey or other countries, and that I will accept all legal consequences that may arise if a contrary situation is detected."

In other words, while the provision of the regulation relies on a "written declaration," the annex of the regulation stipulates that this declaration should be made by a "letter of undertaking."

In the first paragraph of Article 513 of the Customs Regulation, titled "permit" states that "Persons who want to open and operate a temporary storage place must apply to the relevant customs directorate with a petition along with the documents listed below in order to obtain permission.

a) …

 b) …

 h) The conditions required are listed as a "letter of undertaking in Annex-79".

In the text of the undertaking in Annex-79, "I accept and undertake the following issues against the permission to be given by the Ministry to open and operate the place, whose address and other characteristics are shown in the documents submitted in our letter dated …/…/… and numbered …….., as a temporary storage place. It is stated that;..." after the rules to be followed during the temporary warehouse operation are listed, "If we act contrary to the customs legislation and our commitments, the Ministry may revoke the permission it has given. We will close the temporary storage place by transferring the existing goods to another place, which will be determined by us, on the condition that we pay the costs due to this issue." We accept and undertake that we will not have the right to claim damage or loss."

Likewise, the 1st paragraph of Article 520 of the Regulation titled "Documents to be required for application" states that "Persons who wish to obtain a warehouse opening and operating permit must comply with Annex-80's 'I. They must apply to the customs directorate to which the warehouse will be affiliated, with the documents specified in the 'Documents to be Required for Application' section and the letter of undertaking in Annex-81.

There are two examples of letters of undertaking in Annex-81. The first one is defined as "A sample letter of undertaking to be received from those who will request to open and operate a warehouse," and the second one is defined as "A sample letter of undertaking to be received from those who will request to open/operate a warehouse for the storage of flammable, flammable, explosive goods or goods that require special arrangements or facilities for their storage." Except for the special obligations of both letters of undertaking, the introductory and closing phrases are the same as the example of the undertaking in Annex-79.

Law, which enters every aspect of our lives, is divided into two branches: private and public law. While the parties are in an equal position before the law in private law regulations, the state is in a stronger position against citizens and businesses in public law regulations. While violation of private law regulations provides the other party with the right to demand compensation, private and legal entities face unilateral criminal sanctions of the state in case of a breach of public law regulations. While, according to private law, a relationship can be established between the parties through a private contract, according to public law, the relations between the state and individuals are often provided by a set of rules defined as "legislation." Therefore, while the provisions of the contract signed by the provisions of private law are known only by the parties to the contract and a copy of the contract is kept by these parties, the "legislation" containing the public law rules that regulate a field is published in the Official Gazette and kept open for use on a platform that everyone can easily access.

In this regard, claims that unknown public law regulations are not accepted when seeking rights. This rule was embodied in the 3rd article titled "Binding force of the law" of the Turkish Penal Code No. 5237, which is a public law regulation, with the provision that "Ignorance of criminal laws is not an excuse." Moreover, while there may be unique situations and special rules in relations within the scope of private law, in the field of public law, decisions are made according to general principles, not according to individuals or particular situations. In this context, if the obligation to pay taxes is to be imposed or a tax exemption rule is to be imposed, the rule is to be applied to everyone. Likewise, military service is determined as an obligation for every man. General rules are also set for exemption from military service.

Undoubtedly, depending on whether the level of education is low or high, living a lifestyle open to the outside world or at home, living in an urban or rural area, constantly staying in the same place of residence or traveling frequently, and following daily developments from the media to a greater or lesser extent, people may be affected by the legislation. Their level of knowledge varies. However, a person's statement, "I did not know that stealing was a crime" or "I did not know that killing people was punishable by imprisonment," cannot be accepted as a defense thesis.

Suppose the courts cannot even notify the addressee of the decision made in the person's absence. In that case, it is published in the Official Gazette, and the decision is deemed to have been notified to the people it could not reach. In this regard, all provisions of a legislative regulation published in the Official Gazette are binding on those related to this regulation. Additionally, there is no need to obtain a commitment from these people.

In particular, it is unthinkable for natural or legal persons operating in the field of Customs Law to be unaware of its regulations. The more specific this field of law is, the more specialized people are in dealing with its rules.

Then, I have difficulty understanding why a "letter of commitment" that can be requested due to a relationship in private law is required in customs procedures.

Have you ever seen the Ministry of Treasury and Finance request a letter of undertaking stating, "I accept and undertake that I will pay the corporate tax, and if I do not pay, I will pay the penalties to be imposed by the provisions of the Corporate Tax Law"?

Or have you witnessed the Ministry of National Defense requesting a letter of undertaking containing the phrase, "I will fulfill my military service as specified in the law, and if I fail to do so, I accept and undertake to be imprisoned by the Military Service Law"?

Or, after signing a letter of undertaking from the Ministry of Internal Affairs stating that "From the date I get my traffic license, I will comply with all traffic rules, will not exceed the speed limits, will have my vehicle inspected on time, will not park in the wrong place, and I accept and undertake to pay a penalty if I violate these rules." Have you heard of giving out driver's licenses?

But when we violate the rules on this issue, we are punished with a fine or imprisonment, and no one can say, "I did not give you a commitment on this matter; why am I being punished?"

These commitments also contain specific announcement provisions. For example, what does "….. I undertake and declare that I will accept all legal consequences if a contrary situation is detected"? In other words, if the relevant person did not sign the undertaking, would there be no legal consequences for him? Or "We will comply with all the issues stipulated by the Customs Law No. 4458 and the Customs Regulation. Otherwise, if the authorities of our company had not been committed such as "We accept and undertake to implement the provisions of the Customs Law No. 4458, the Law No. 1567 on the Protection of the Value of Turkish Currency and the related Decision and the Anti-Smuggling Law No. 5607", would the bunker and port dealers be allowed to engage in smuggling?

Likewise, although it is promised in the letter of undertaking, natural and legal persons cannot be prevented from applying to judicial authorities in case of dispute. For example, in the commitments in Annex-79 and Annex-81, it is stated that "In case it is determined that the goods placed in the temporary storage place (warehouse) are lost due to non-compliance with the law, statute, regulations and orders and this commitment, the state accepts all the responsibility that will arise." To pay compensation and damages for the rights immediately upon the request of the Ministry, without the need for a court ruling or arbitral decision, and to pay the taxes on the lost goods without objection… Although the commitment of "we accept and undertake" is made, it is known that these businesses do not automatically compensate for the loss and damage in such cases of loss. They resort to seeking their rights in court.

Same way, "… all kinds of taxes, duties, and fees, etc. that are incompletely received for any reason. "I undertake and accept to pay the financial obligations to the relevant customs accounting office upon first request, without any objection, if requested by us later, and to fulfill my administrative, financial, and legal obligations that may arise by the Customs Law No. 4458 and the Law on the Collection Procedure of Public Receivables No. 6183." However, laboratory tests are objected to, and second tests and administrative lawsuits are taken.

So, why is it indispensable without requesting a "letter of undertaking" at customs? Why doesn't the idea that "even if no special commitment is taken from individuals, the legislative provisions adequately protect the customs administration" prevail in the administration? Why do the letters of the undertaking of open temporary storage, warehouse enterprises, and bunkers have to be kept in dusty files for decades? Why does it hurt the officer when these are lost?

In short, the customs organization no longer needs a legal oddity called a "letter of undertaking" to defend customs ri