Confiscation of Excess Fuel by the Administration
In cases where fuel other than the declared amount is found during the inspection and fuel measurements on ships, the fuel can be confiscated pursuant to Article 127 and the following provisions of the Criminal Procedure Code No. 5271 (“CMK”). A report is prepared after a sample is taken from the fuel for analysis, and the fuel, which is not declared, is delivered to the relevant authority. The administration transfers this fuel to its storage facilities in accordance with Article 11 of the Law on Combating Smuggling No. 5607. Following the confiscation, the process of disposing of the undeclared fuel on ships, including the transfer of fuel from the ship to the storage facilities, can take between 3 days to 1 week. This is because the speed at which fuel is disposed of from ships is nearly half the speed at which fuel is loaded onto the ship. This situation delays the departure of the ship and causes additional costs, such as unnecessary occupation fees paid to the Port Authority while the ship remains in port. In many cases, the occupation fee paid is found to be higher than the customs value of the undeclared fuel.

In such cases, in addition to delivering the confiscated fuel to the relevant authority, if the ship wishes to depart, the amount of the seized fuel can be deposited as collateral, allowing the ship to continue its voyage.

Implementation of CMK Article 132/5
To prevent the time loss caused by the disposal of undeclared fuel from ships, the collateral procedure can be applied pursuant to Article 132/5 of the CMK. In this context, the fuel can be left on the ship, and the ship can continue its voyage once the collateral is deposited. “CMK Article 132/5: The seized goods can be delivered to the suspect, defendant, or another person for safekeeping, with measures for maintenance and supervision, and it can be immediately returned upon request, provided that a guarantee is provided.” One of the advantages of implementing this provision is that the decision-making authority is granted to the Public Prosecutor’s Office, meaning there is no need to wait for a decision from a judge or court. As a result of this procedure being transferred to the relevant judicial and administrative institutions, including Gemlik and Ambarlı Ports, the ships were able to leave the port without any delays.

Determining the Collateral Amount
It should first be noted that there is no regulation regarding the amount of collateral in Article 135/2 of the CMK, which allows the fuel to remain on the ship by depositing collateral. In practice, the goal is to preserve the amount of fuel obtained through nationalization. Therefore, the amount of collateral to be deposited is determined as the customs value of the fuel that has been found to be smuggled. The concept of “customs value” is defined under Article 2/b of the Law on Combating Smuggling as “the total CIF value (cost, insurance, and freight) plus customs duties for imported goods, and the total FOB value plus customs duties for exported goods.” In other words, the customs value of the fuel is the total value calculated by applying customs duties, special consumption tax (SCT), and VAT on the CIF value (the cost of the goods, insurance, and freight). This value is determined by the “Smuggled Goods Detection Form” issued by the Customs Directorate and is used as the basis for the collateral amount. After the collateral amount is deposited to the relevant unit, procedural actions are completed, and the ship is permitted to continue its voyage.

Appealing the Confiscation Decision
It is important to note that the confiscation decision made under Article 127 of the CMK does not disappear by depositing collateral. The deposited collateral replaces the confiscated goods, and therefore, the confiscation decision continues based on the collateral amount. An appeal can be made against this decision through legal means. The confiscation decision can be appealed at the relevant Magistrate’s Court within 7 days from the date of learning of the decision. Unlike the legal remedy, pursuant to Article 127/4 of the CMK, the lifting of the confiscation measure can always be requested from the Magistrate’s Court or the court. If you require more detailed information on this matter, you can contact us anytime through the contact numbers provided below.