Trafficking Crimes Under the Anti-Trafficking Law No. 5607 and the Turkish Criminal Code
1. Introduction
Trafficking crimes are serious crimes that threaten the economic order, public safety and public health. The Anti-Smuggling Law No. 5607 is recognized as a special regulation in the fight against these crimes. When considered together with the Turkish Criminal Code, both material and spiritual elements are considered in detail in terms of penal policy. In this article, a comprehensive analysis will be presented in the light of the legal nature of trafficking crimes, criminal sanctions, aggravating causes, elements of the crime and judicial decisions.
2. Definition and Legal Basis of Trafficking Crime
The crime of smuggling is the act of introducing or removing goods or goods into the country in violation of permits or legislation. Article 3 of Law No. 5607 defines the crime of smuggling and regulates its punishment. Some articles of the Turkish Penal Code, such as 204, 220, 228, 282, 288, also deal with crimes related to trafficking.
3. Elements of the Crime of Trafficking
In order for the crime of trafficking to occur, both material and spiritual elements must have occurred.
3.1. Material Elements
The material element is the action carried out with contraband. Movements such as the illegal introduction, transportation, possession or sale of goods into Turkey constitute the material element of the crime. The concept of goods is considered in a broad sense according to customs legislation.
3.2. Spiritual Element
The crime of trafficking is a crime that can be committed intentionally. The perpetrator must act, knowing and willingly that the item is on the run. There is no crime of smuggling by taxi (with carelessness). However, in some cases, the claim that the perpetrator was at fault can be put forward as a defense.
4. Penalties and Aggravating Causes
According to Article 3 of Law No. 5607, the basic punishment is imprisonment from 1 year to 5 years and a judicial fine of up to 20 thousand days.
4.1. Aggravating Causes
The penalty is increased in the following cases:
-Committing a crime within the framework of organizational activity
-Processing by government officials or on the basis of public duty
-Trafficking of dangerous goods for public health (e.g. medicines, meat, alcohol, etc.)
-The repetition of the act or the crime of chain
5. Judicial Decisions (First Instance, Appeal, Supreme Court)
Below are some decisions of the Supreme Court made under Law No. 5607:
5.1. Commercial Intent and Possession of Contraband
7th Criminal Chamber of the Supreme Court, 2019/9519 E.,2020/2885 K. — It was concluded that 80 packs of illegal cigarettes found in the gift shop were commercially possessed, and the acquittal was overturned.
5.2. Personal Use Defense and Commercial Intent
7th Criminal Chamber of the Supreme Court, 2019/6056 E.,2021/15381 K. — The defence of 'personal use' of 47 packs of cigarettes is not accepted.
5.3. Smuggled Goods Threatening Public Health
The 7th Criminal Chamber of the Supreme Court, 2016/2862 E.,2020/267 K. — 1560 kg of smuggled meat has been sentenced for threatening public health.
5.4. Lehe Law Enforcement and Determination of Penalty
19th Criminal Chamber of the Supreme Court, 2019/18827 E.,2019/7491 K. — The judgment was overturned because the Lehe law review was incomplete.
5.5. Chaining Crime and Penalty Practice
7th Criminal Chamber of the Supreme Court, 2018/13765 E.,2021/3392 K. — The decision was overturned on the grounds that the provisions of the crime of chains were incorrectly applied.
6. Problems in Practice and Evaluation
6.1. Separation of Commercial Purpose and Personal Use
The assessment of the courts differs, since the criteria are vague.
6.2. Status of the Car Owner in the Confiscation of Goods
If the car owner is unaware of the crime, a confiscation order should not be issued. In practice, this is often not taken into account.
6.3. Uncertainty in Lehe Law Enforcement
Not only the duration of the sentence, but also aspects such as execution and HAGB/postponement must be taken into account.
6.4. Inadequacy in Bandrol and Document Inspection
Sales with fake bandrolls are common due to lack of supervision.
6.5. HAGB and Procrastination Practice Discussions
Postponement or non-disclosure of penalties weakens deterrence.
7. Conclusion and Recommendations
Anti-Trafficking Law No. 5607 is critical in terms of both criminal law and economic order. However, many uncertainties and problems are encountered in practice. Unity must be achieved in judicial decisions, and supervisory systems must be strengthened by digitalization. The principle of justice and deterrence in punishments must be observed in a balanced manner.