Tobacco Crimes in Turkish Law
What is a Makaron? What is the Penalty for Illegal Makaron?
What is a Makaron?
The term “makaron” refers to a cigarette paper and filter that is ready for sale without tobacco inside. According to the law, selling empty makarons does not constitute a crime after obtaining the necessary permissions.
Penalty for Illegal Makaron
Filling makarons with tobacco and selling them is considered a crime under the Anti-Smuggling Law No. 5607. It is also punishable by administrative fines as specified in the Tobacco and Alcohol Market Regulatory Law No. 4733.
Criteria for Considering Filling Makarons as Smuggling:
– Filling the makaron with tobacco to make it a cigarette
– The cigarette does not have a TAPDK banderol
– It is not taxed
Purchasing Makaron and Tobacco for Personal Use
Citizens purchasing makaron and tobacco for personal use, filling them at home, and smoking them is legal. The empty makarons sold are invoiced, taxed, and under state control. The tobacco placed inside the makaron is also sold packaged, invoiced, taxed, and with a banderol.
Precedent Supreme Court Decision
In decision No. 2019/35555 of the 7th Criminal Chamber of the Supreme Court, although 13 boxes of makarons were found in the defendant’s electric bicycle, the defendant claimed they were for personal use and the quantity of makarons was deemed insufficient for commercial purposes, resulting in an acquittal.
Penalty for Commercial Filling of Makarons
Filling empty makarons with tobacco and selling them as cigarettes for commercial purposes constitutes smuggling. According to Article 3 of the Anti-Smuggling Law No. 5607, this crime is punishable by 3 to 6 years of imprisonment.
Points to Consider:
– To trade in makarons and tobacco, a license from the Tobacco and Alcohol Market Regulatory Authority is required.
– Filling makarons with tobacco for sale is considered smuggling and is subject to penalties.
– Although purchasing makarons and tobacco for personal use is legal, the quantity must be reasonable. Otherwise, suspicion of commercial intent may arise.
TAPDK Penalty Amounts:
– Those who buy products from or sell products to individuals without a license from the Ministry of Food, Agriculture, and Livestock: 1,000 TL to 10,000 TL.
– Wholesale sellers of tobacco products, makarons, leaf cigarette papers, ethyl alcohol, methanol, and alcoholic beverages without a sales license from the Ministry of Food, Agriculture, and Livestock: 50,000 TL.
– Wholesale or retail sellers of tobacco products, makarons, leaf cigarette papers, ethyl alcohol, methanol, or alcoholic beverages selling outside the location specified on their license: 1,000 TL to 10,000 TL.
Producers and sellers of shredded tobacco for commercial purposes, as well as those who offer it for sale, will receive the following administrative fines based on the weight of the tobacco produced, sold, or offered for sale:
| Weight Range | Fee |
|---|---|
| 0 – 50 kg (inclusive) | 3,351 TL |
| 50 – 100 kg (inclusive) | 6,753 TL |
| 100 – 250 kg (inclusive) | 20,325 TL |
| 250 – 500 kg (inclusive) | 40,711 TL |
| 500 kg and above | 67,912 TL |
Points to Consider
– Administrative fines can be increased up to twice the amount in case of repeated offenses.
– It is possible to appeal the penalty for filling makarons. Appeals are made to the administrative judiciary.
Is Selling Filled Makarons a Crime?
Legal Regulations
Article 3, paragraph 20 of the Anti-Smuggling Law No. 5607 stipulates that the sale of filled makarons has been a crime since 01.07.2020. Sales of makarons before this date do not constitute a crime and are only subject to administrative fines.
However, it should be noted that offenses committed before the enactment of Article 3/20 do not always result in acquittal.
Illegal Tobacco and Makaron Sales
Offering illegal tobacco and makarons for sale without customs clearance is punishable by 2 to 5 years of imprisonment under Article 3/1 of Law No. 5607. Even if not smuggled into the country, knowingly trading these items warrants 1 to 3 years of imprisonment. Since the crime involves tobacco, the penalty cannot be less than 3 years.
Trading tobacco and makarons without banderol, label, hologram, or stamp, or with misleading features, is punishable by 3 to 6 years of imprisonment under Article 3/18.
ANKARA REGIONAL COURT OF APPEALS 7th CRIMINAL CHAMBER decision: In this decision, the defendant’s act of possessing and offering for sale filled makarons was considered a crime defined in Article 3/20 of Law No. 5607, but since it was committed before the effective date of 01.07.2020, the defendant was acquitted.
Conclusion
The sale of filled makarons has been a crime since 01.07.2020. Sales committed before this date do not constitute a crime and are only subject to administrative fines. However, the sale of illegal tobacco and makarons always constitutes a crime.
Supreme Court decisions exemplify practices in this matter and show that each case must be evaluated based on its unique circumstances.
Will Money Seized with Makarons be Confiscated?
Currency, gold, cash, and other monetary items found alongside crime elements such as makarons, makaron filling machines, and tobacco sacks will be considered as obtained from the crime and confiscated. This is known as confiscation of proceeds and is regulated under TCK 55.
What is Confiscation of Proceeds?
Confiscation of proceeds is the confiscation of material benefits obtained from or constituting the subject of the crime, or provided for the commission of the crime, and the economic gains arising from their use or conversion.
Important Points of TCK Article 55:
– The material benefit cannot be returned to the victim of the crime.
– If the property or material benefit subject to confiscation cannot be seized or delivered to the relevant authority, the value equivalent to these will be confiscated.
– For the confiscation of property falling within the scope of this article, the subsequent acquirer must not be able to benefit from the provisions of good faith protection under the Turkish Civil Code No. 4721, dated 22/11/2001.
Will the State Confiscate Tobacco Money?
Yes, the proceeds obtained from tobacco smuggling can be confiscated according to the confiscation of proceeds provisions explained above.
In summary:
– Money seized with makarons can be considered proceeds from the crime and confiscated.
– For detailed information on confiscation of proceeds, refer to TCK Article 55.
– Proceeds obtained from tobacco smuggling can also be confiscated.
Can the Police Conduct Searches?
Conditions for Conducting Searches
The police can conduct searches if they have obtained the necessary permissions and a court order. In smuggling cases, searches are generally conducted based on tip-offs.
Search Based on Tip-Offs
– To conduct a search based on a tip-off, there must be reasonable suspicion. Reasonable suspicion means a strong possibility that a crime has been committed.
– The reliability of the tip-off is also important.
– The identity of the person making the tip-off and the source of the tip-off should be known.
Search Warrant
– Before conducting a search, the police must obtain a search warrant as stipulated in the Criminal Procedure Code (CMK).
– The search warrant can be issued by a judge or a public prosecutor.
– In cases where delay poses a risk, the police chief can issue a written order.
– The search warrant must include information such as the place to be searched, what is being searched for, and when the search will be conducted.
Illegal Search
– Evidence obtained as a result of a search conducted without a search warrant is considered illegally obtained and cannot be used as a basis for a verdict.
– Police officers conducting illegal searches may face criminal proceedings.
In a decision by the 7th Criminal Chamber of the Supreme Court, it was stated that the search was invalid due to the lack of justification for the urgent need to search without a warrant, resulting in the defendant’s acquittal.
Conclusion
The police must act in accordance with the law when conducting searches. Otherwise, the evidence obtained may be considered illegal, potentially leading to the defendant’s acquittal.
Legal Limits for Carrying Cigarettes
What is the Personal Use Limit?
Possessing, smoking, and transporting cigarettes filled for one’s personal use is not a crime. For a crime to occur, there must be commercial-scale income, intent to commit a crime, tax evasion, or unregistered trade.
How Many Cigarettes Can Be Carried Without Being a Crime?
A person who smokes 3 packs of cigarettes a day can carry around 150 packs of cigarettes when traveling for seasonal work without committing a crime.
Points to Consider:
– If 150 packs of cigarettes are seized based on a tip-off and a search warrant, it may be considered smuggling.
– Proving that 150 packs of cigarettes are for personal use may require a trial.
– Since court rulings may vary depending on the specifics of each case, it is not always possible to provide a definitive number for personal use.
Possessing, smoking, or transporting cigarettes for one’s personal use is not a crime. However, it constitutes a crime if there is commercial-scale income, intent to commit a crime, tax evasion, or unregistered trade.
For example, a person who smokes 3 packs of cigarettes a day and carries 150 packs of cigarettes when traveling for seasonal work may not be committing a crime. However, if these cigarettes are seized during transport based on a tip-off and a search warrant, it may be considered smuggling. It may be necessary to prove that 150 packs of cigarettes are for personal use. Since court decisions can vary depending on the specifics of each case, it is not always possible to provide a definitive number for personal use.
Even within the personal use limit, if a tip-off results in a wiretap order and it is proven with conclusive evidence that the 150 packs of cigarettes are being transported for commercial purposes, the personal use defense may not be valid. In this case, it is crucial to quickly seek the assistance of a lawyer, examine the evidence in the file, and follow legal procedures to obtain a reduction within the scope of effective remorse. Depending on the evidence in the file, if it is proven that the action was commercial in nature and done with the intent of smuggling, the low value of the goods can also be considered for a reduction.
