Ulgener

-Gül Alpay

Vessels calling at Turkish ports are required to declare their onboard bunkers to the Customs Directorate as per the regulations. If a discrepancy is detected between the declared amount and the actual onboard amount (a difference of up to 3% is usually tolerated depending on the size of the vessel), customs officials will mandate the discharge of the excess bunker. Additionally, the case may be referred to the Public Prosecutor, who could initiate an investigation under the Anti-Smuggling Act, summoning the vessel’s Master and Chief Engineer for statements.

Legal Framework

Under Article 3 of the Anti-Smuggling Act No. 5607:

“Anyone who brings goods into the country without subjecting them to customs procedures is punishable by imprisonment from one to five years and a judicial fine of up to ten thousand days. If goods are brought from outside the customs gates, the penalty is increased by one third to half.”

In cases involving fuel, the penalties are more severe:

“For goods such as fuel, tobacco, and alcoholic beverages that constitute smuggling, penalties are increased from half to twice the standard amount. The minimum penalty is three years.”

When these provisions are interpreted together, the Master and Chief Engineer who misdeclare bunker to Turkish Customs face the risk of prosecution, with potential prison sentences ranging from 3 to 10 years.

Judicial Process and Court Evaluation

If, as a result of the investigation, the prosecutor concludes that there is reasonable doubt that a smuggling offence has been committed, he prepares an indictment. If the court accepts this indictment, prosecution process begins.

In the prosecution process, crew member will no longer be in Turkey; therefore the court will request the authorities in the place of residence of the defendant, to make the necessary arrangements for the questioning of the defendant. This request, includes a summary of the facts, a description of the offence, the applicable legal provisions and specific questions to be asked. In practice, this correspondence between the relevant authorities often takes months to finalise.

According Turkish Law, a conviction can only be made, after questioning of the defendant takes place. Hence, if questioning cannot take place due to the fact the crew member cannot be reached at his/her address or fails to appear to testify despite being notified to do so, the Turkish court will issue an arrest warrant to ensure that the defendant is brought directly to court upon arrival in Turkey. Accordingly, It should be considered that the return of a crew member with an arrest warrant to Turkey, may disrupt the vessel’s operations.

During the proceedings, the court examines the specific details of the case to determine whether the offence of smuggling has been committed. In other words, excessive bunker alone does not prove the existence of a smuggling offence. The court takes into account factors such as whether the fuel was intended for an external voyage, whether any part of it was attempted to be removed, or whether there was an attempt to transfer it to another vessel.

If, after evaluation, the court concludes that that no smuggling was attempted/intended, despite the excess bunker, the defendants will be acquitted. but administrative penalties for declaration discrepancies will continue to apply.