THE PROCESS OF OBJECTION TO CUSTOMS DUTIES UNDER ARTICLE 242 OF THE TURKISH CUSTOMS LAW

THE PROCESS OF OBJECTION TO CUSTOMS DUTIES UNDER ARTICLE 242 OF THE TURKISH CUSTOMS LAW

Article 242 of the Customs Code regulates complaints and executive decisions related to customs and fines. The administrative appeal regulated under the Customs Law is a mandatory administrative remedy. When the provision of Article 242 and its secondary legislation are analyzed, it is understood that this practice is contrary to the basic principles of administrative law and fundamental rights and freedoms. This is because this remedy directly affects the taxpayer’s right of access to the jurisdiction. In addition, the taxpayer’s property rights can indirectly affects by the interests for late payment that may arise due to the prolongation of the administrative and legal process.

INTRODUCTION

Article 242 of the Turkish Customs Law regulates the appeal procedure for customs duties and fines. This regulation is considered as an administrative appeal that must be exhausted before the lawsuit. Therefore, the administrative objection process that stipulated in the Turkish Customs Law has affected the right to file a lawsuit of related persons. This is because failure to file the objection properly also prevents the filing of a lawsuit. For this reason, it is important to clearly state the duration and procedure of the administrative objection regulated by law.

LEGAL SCOPE OF ADMINISTRATIVE OBJECTION

The administrative objection procedure is regulated under Article 242 of the Turkish Customs Law. In the former regulation of the article, we see that a two-stage approach was used for correction and objection. However, since the practice did not yield the expected results, the aforementioned provision was amended, and the correction request practice was abandoned. According to Article 242,  “Within 15 days from the notification, the debtors may appeal against the customs duties, fines and administrative decisions under a petition addressed to a superior authority or to the same authority if such a superior authority does not exist. Article 242/4 of the Turkish Customs Law stipulates that if the objection is rejected, the objection may be appealed to administrative jurisdiction. Although the provision in question is regulated as “may appeal”, the “Danistay” (the highest supervisory authority in the administrative judiciary) has established ruling cases that administrative appeal procedures must be exhausted before applying to the judiciary. According to this provision, taxpayers may file an administrative appeal against tax and penalty decisions. The fifteen-day period mentioned in the provision is legally guaranteed for the reconciliation request.

Pursuant to Article 242/2 of the Turkish Customs Law, an answer to the objection must be given within 30 days following the filing of the administrative objection. If the administration does not respond within 30 days, it is accepted that the application is tacitly rejected, and the judicial remedy is opened.  However, Article 586 of the Customs Regulation; “The objections shall be notified to the relevant person by making a decision within thirty days by examining the declaration and all other documents subject to the dispute and the sample to be taken from the goods, the goods themselves in cases where it is not possible to take a sample or other documents that will give an idea without seeing the goods such as photographs, catalogs, prospectuses, or if necessary, by taking the opinion of the relevant customs administration. In cases where a decision cannot be taken within thirty days, the second paragraph of Article 6 of the Law shall apply.” In paragraph 2 of Article 6 of the Turkish Customs Law; “The request for a decision must be made in writing. Customs administrations take a decision within 30 days from the receipt of the application regarding the request. Decisions made are notified to the applicant in writing. However, that 30-day period may be exceeded where the customs administrations are unable to comply with it. In that case, those administrations shall so inform the applicant before the expiry of the above-mentioned period, stating the grounds which justify exceeding it and indicating the further period of time which they consider necessary in order to give a ruling on the request.” In the circular issued by the General Directorate of Customs in 2014 on responding to administrative appeals, the explanations on the determination of this additional period of time cited Article 10 of the Turkish Administrative Procedure Law as the provision on which the additional period of time would be based. Within the scope of these provisions, for disputes, the obliged parties must first exhaust the administrative appeal procedures.

The administrative appeal period is 15 days, and the relevant administration must respond to the acceptance or rejection of the objection within 30 days. However, if the administration determines that the examination will exceed the 30-day period, it must notify the applicant of the additional period deemed necessary before the end of the period and with justification. On the other hand, the period specified in the Turkish Administrative Procedure Law provision should not exceed 6 months from the application. In any case, even if the additional period is used, the applicants may apply to the judicial remedy according to paragraph 2 of Article 10 of the Turkish Administrative Procedure Law due to the lack of a final result within the 30-day period. If the answer given by the administration at the end of the additional period is in favor of the applicant, the administrative judiciary should conclude the case by issuing a decision of “no decision” since the lawsuit filed will not be subject to the case.

OBLIGATION OF THE ADMINISTRATIVE REMEDY

It is important to examine the compulsory administrative appeal as it may lead to loss of rights. This is because, if the administrative appeal is made mandatory, the administrative action may be subject to litigation only if there is an objection. At the same time, exceeding the mandatory administrative objection period will lead to loss of rights in terms of both objection and judicial remedy. Although it is regulated as a right in the relevant legislation, it is seen from the regulations of the Danistay that administrative objection is considered mandatory. The regulation on administrative objection in the Turkish Customs Law is one of them. Paragraph 1 of Article 242 of the Turkish Customs Law clearly stipulates that “an objection may be filed”. Despite this provision, it is understood from the case law of the Danistay and the circulars of the Ministry of Trade that the said provision is a mandatory administrative remedy. There is no explanation as to what the legislator meant by this provision. A literal interpretation of the provision is possible, but since the wording of the provision conflicts with the practices, there will not be a definitive interpretation of the provision.

EVALUATION IN TERMS OF RIGHT TO LEGAL REMEDIES

The necessity of exhausting the mandatory administrative objection before the judicial remedy, the possibility of losing the freedom to seek rights due to the complete closure of the judicial remedy in case of missing the deadline, and the fact that it is related to the property rights of the taxpayers should be clearly understood by the by interested parties. The administrative appeal procedure regulated in the Turkish Customs Law is not regulated in a single law and its application is also shaped by the Turkish Administrative Procedure Law, the communiqués of the Turkish Ministry of Trade and the case law of the Danistay.

The fact that the administrative objection, which is accepted to be mandatory, is regulated in a complex manner in the laws, which may cause individuals to suffer loss of rights, is contrary to Article 40/2 of the Constitution. The administrative objection procedure in the Turkish Customs Law creates a temporary obstacle in terms of taxpayers’ rights in terms of the freedom to seek rights, at the stage of going to the judiciary.

The regulation under Article 242 of the Turkish Customs Law is essentially uncomplicated. However, the fact that the regulation in the Customs Regulation refers to Article 6 of the Turkish Customs Law, the additional period provision in the article is not clear, and the additional period is based on Article 10 of the Turkish Administrative Procedure Law in the circular published by the General Directorate of Customs causes the administrative objection, which is the subject of this framework, to be procedurally complicated.

CONCLUSION

According to the literal interpretation of the legislator, the administrative appeal procedure under Article 242 of the Customs Code is an optional remedy. However, there are many contradictions when it comes to the elements of the administrative appeal procedure in the Turkish Customs Code. These contradictory statements lead to blocked access to courts and loss of property rights.