Customs Confiscation vs. Customs Seizure in Turkey: What Is the Difference?

When goods are stopped by Turkish Customs, foreign individuals and companies frequently use the terms “seizure” and “confiscation” interchangeably.

Under Turkish law, however, these concepts are fundamentally different.

A seizure (elkoyma) is generally a temporary procedural measure designed to preserve evidence or secure property that may later become subject to confiscation.

A confiscation (müsadere) is a substantive legal consequence that may permanently deprive the owner of the property.

This distinction becomes particularly important in cases involving alleged customs smuggling under Law No. 5607 on Anti-Smuggling, because goods may first be seized during an investigation and later become the subject of a confiscation request before the criminal court. Turkish criminal procedure expressly permits property that may serve as evidence or constitute the subject matter of property or proceeds confiscation to be taken under protection.

Therefore:

Seizure does not automatically mean that ownership has been lost.

And equally:

The fact that goods were initially seized does not necessarily mean that they will eventually be confiscated.

Understanding this distinction is crucial when deciding whether to request the immediate return of goods, challenge the seizure, defend against a confiscation request or assert the rights of a third-party owner.

1. What Is Customs Seizure in Turkey?

In criminal proceedings, seizure — elkoyma — is principally a procedural protection measure.

Article 123 of the Turkish Code of Criminal Procedure provides that property considered useful as evidence or constituting the potential subject matter of property or proceeds confiscation may be taken under protection. Where the person holding the property does not voluntarily surrender it, seizure may be applied.

The purpose of seizure is therefore not, in itself, to transfer ownership to the State.

Its purposes may include:

• preserving evidence;
• preventing disappearance or destruction of goods;
• securing property that may later be confiscated;
• allowing examination, sampling or expert analysis;
• ensuring that the goods remain available during the investigation or prosecution.

A company whose goods have been seized may therefore remain the legal owner of those goods while being temporarily prevented from possessing, using, selling or disposing of them.

This distinction has major commercial consequences.

Goods worth hundreds of thousands of euros may remain legally owned by the importer while physically being held by Customs or another competent authority.

2. What Is Confiscation Under Turkish Criminal Law?

Confiscation — müsadere — is different.

Under Article 54 of the Turkish Criminal Code, property used in the commission of an intentional offence, allocated to the commission of an offence or produced as a result of the offence may, subject to the statutory conditions, be confiscated.

The provision expressly protects property belonging to bona fide third parties in the ordinary form of property confiscation.

Unlike seizure, confiscation is not merely intended to preserve an item during proceedings.

It is classified within the criminal-law system as a security measure and may permanently remove the property from the owner’s patrimony.

A simple way to understand the difference is:

Seizure freezes the property.
Confiscation determines its ultimate legal fate.

3. Seizure and Confiscation Are Different Stages

A typical customs-related criminal case may develop as follows:

Stage 1 — Suspicion

Customs Enforcement identifies suspected irregularities concerning imported or exported goods.

Stage 2 — Seizure

The goods are seized or otherwise secured during the investigation.

Stage 3 — Investigation

The Public Prosecutor investigates whether an offence under Law No. 5607 or another criminal provision has been committed.

Stage 4 — Prosecution

If sufficient suspicion exists, criminal proceedings may be initiated.

Stage 5 — Confiscation Assessment

The criminal court determines whether the legal requirements for confiscation have been satisfied.

Therefore, confiscation should not be treated as an automatic consequence of seizure.

The prosecutor or court must separately determine whether the substantive legal requirements for confiscation exist.

4. How Does Law No. 5607 Apply to Smuggled Goods?

Law No. 5607 contains special provisions concerning smuggling offences and customs-related criminal conduct.

Article 9 specifically regulates search and seizure in relation to suspected contraband and other property falling within the scope of the Anti-Smuggling Law.

For confiscation, Article 13 of Law No. 5607 expressly refers to the property and proceeds confiscation provisions of the Turkish Criminal Code. Accordingly, the general rules contained particularly in Articles 54 and 55 of the Turkish Criminal Code become relevant in smuggling cases.

This means that where imported goods are alleged to constitute contraband, the analysis should not end with the question:

“Were the goods seized?”

The more important long-term question is:

“Are the legal conditions for confiscation actually satisfied?”

5. Does Every Smuggling Case Result in Confiscation?

No.

The fact that Customs or Customs Enforcement describes goods as suspected contraband does not by itself constitute a final confiscation judgment.

The investigation and court must determine the legal status of the goods and whether the relevant statutory conditions exist.

This distinction can be crucial where there is a dispute about:

• customs tariff classification;
• customs value;
• origin;
• quantity;
• import licence;
• product conformity;
• documentary errors;
• ownership;
• the importer’s knowledge or intent;
• the legal status of the goods themselves.

A customs irregularity and a criminal smuggling offence should therefore not automatically be treated as identical concepts.

6. What Types of Property May Be Confiscated Under TCK Article 54?

Article 54 of the Turkish Criminal Code principally concerns property confiscation — eşya müsaderesi.

The provision covers several categories.

Property Used to Commit an Intentional Offence

For example, machinery, equipment, vehicles or other property deliberately used in committing an offence may potentially be considered for confiscation.

Property Allocated to the Commission of an Offence

Property specifically prepared or dedicated to criminal activity may also fall within the scope of confiscation.

Property Produced by the Offence

Property directly resulting from criminal activity may be confiscated.

Property Whose Possession or Trade Is Itself Criminal

Article 54 also contains special rules concerning goods whose production, possession, use, transportation, purchase or sale itself constitutes an offence.

This category must be distinguished from ordinary commercially lawful goods that merely happened to be connected with an alleged offence.

The legal position of an ordinary commercial product is therefore not necessarily the same as the position of property whose very possession or circulation is prohibited by criminal law.

7. Is Confiscation Automatic When Property Was Used in an Offence?

Not necessarily.

Turkish law also recognises the principle of proportionality.

Article 54 provides that where confiscating property used in an offence would create consequences substantially more serious than the offence itself and would therefore be inequitable, confiscation may not be ordered.

This issue can be particularly important in customs cases involving expensive transport vehicles.

For example, using a high-value truck in connection with a relatively limited quantity of alleged contraband does not necessarily mean that confiscation of the entire vehicle should automatically follow.

The exact facts, ownership, use of the vehicle, statutory conditions and proportionality must all be considered.

8. What About Vehicles Used to Transport Alleged Contraband?

Transport vehicles are one of the most frequently disputed categories in smuggling cases.

Law No. 5607 contains specific rules governing vehicles used in connection with smuggling offences, while the general confiscation principles of the Turkish Criminal Code remain relevant.

The court may need to examine issues such as:

• who owns the vehicle;
• whether the owner knew of the alleged smuggling;
• whether the vehicle was specifically adapted for smuggling;
• the amount and volume of the goods;
• whether the vehicle was effectively allocated to the criminal activity;
• proportionality between the value of the vehicle and the alleged offence.

This is particularly significant where a logistics company, leasing company, rental-car company or another third party owns the vehicle.

9. What Is “Transfer of Ownership to the Public” in Turkish Law?

Another concept frequently confused with confiscation is:

mülkiyetin kamuya geçirilmesi — transfer of ownership to the public.

This concept belongs principally to the field of administrative sanctions, particularly under Article 18 of the Turkish Misdemeanours Law No. 5326.

Article 18 provides that ownership of property constituting the subject matter of a misdemeanour or obtained through the commission of a misdemeanour may be transferred to the public only where legislation expressly provides for such a measure.

It should therefore not be automatically translated or treated as exactly the same institution as criminal-law confiscation under Article 54 of the Turkish Criminal Code.

Although both may ultimately result in the individual losing ownership, their:

• legal basis;
• competent authority;
• procedural regime;
• available objections;
• relationship with criminal liability

may be different.

10. Administrative Transfer of Ownership vs. Criminal Confiscation

Under the Misdemeanours Law, property may be seized while the administrative transfer-of-ownership decision is pending and until that decision becomes final. This illustrates once again why seizure itself and the ultimate transfer of ownership are separate legal events.

11. Why the Difference Matters in Customs Cases

In a customs file, the lawyer should therefore identify precisely which expression appears in the official decision.

A document referring to:

“elkoyma”

should not automatically be interpreted as:

“müsadere.”

Likewise, an administrative decision referring to:

“mülkiyetin kamuya geçirilmesi”

should not automatically be analysed exclusively under TCK Article 54.

The first legal question should always be:

Which authority issued the decision and under which statutory provision?

Without answering this question, it is impossible to determine the correct objection procedure.

12. What Happens to Seized Goods If the Defendant Is Acquitted?

This is one of the most important questions in practice.

The general rule is that where seized property is no longer necessary for the investigation or prosecution, or it becomes clear that the property will not be subject to confiscation, the property may be returned.

Article 131 of the Code of Criminal Procedure expressly provides for the return of property belonging to the suspect, defendant or third parties under these circumstances. A refusal of a request for return may also be challenged.

Accordingly, where the defendant is acquitted and there is no independent legal basis for confiscation, the defence should normally seek the return of the goods.

However:

Acquittal does not always automatically mean that every seized object must be returned.

13. Can Property Be Confiscated Even If the Defendant Is Acquitted?

Potentially, yes, in certain circumstances.

Turkish criminal procedure expressly contains a separate confiscation procedure.

Article 256 of the Code of Criminal Procedure provides a procedural mechanism where confiscation is legally required even though no public prosecution has been initiated or no decision concerning confiscation was rendered together with the merits of the criminal case.

Therefore, the correct legal question after an acquittal is not simply:

“Was the defendant acquitted?”

It is also:

“Is there nevertheless an independent statutory basis requiring confiscation of this particular property?”

For example, an item whose possession, transportation or sale itself constitutes an offence may require a different analysis from an ordinary commercial product belonging to an innocent importer.

14. Example: Ordinary Commercial Goods

Assume that an importer brings electronic equipment into Turkey.

Customs Enforcement suspects smuggling and seizes the shipment.

Later, the criminal court finds that the alleged offence has not been established.

If the electronic equipment is otherwise legally tradable, the prosecution no longer needs it as evidence and there is no legal ground for confiscation, the owner may seek its return under Article 131 of the Code of Criminal Procedure.

The initial seizure did not permanently destroy the importer’s ownership.

15. Example: Property That Is Illegal in Itself

The situation may be different where the property itself belongs to a category whose production, possession, transportation, purchase or sale constitutes a criminal offence.

In such circumstances, return cannot be assumed merely because a particular defendant was acquitted.

The legal status of the property itself must separately be examined under TCK Article 54 and the applicable special legislation.

This distinction is essential when advising clients about the likelihood of recovering seized goods.

16. What Rights Does a Bona Fide Third-Party Owner Have?

Turkish law provides significant protection to bona fide third parties — iyiniyetli üçüncü kişiler.

Article 54 of the Turkish Criminal Code expressly states, for the ordinary category of property used in or allocated to an intentional offence or produced by it, that confiscation applies subject to the condition that the property does not belong to a bona fide third party.

This can be critically important where the owner of the goods or vehicle is not the accused person.

Examples include:

• a leasing company;
• a logistics company;
• a vehicle rental company;
• a financing institution;
• a foreign seller retaining title;
• a company whose employee used company property without authorisation;
• another commercial owner with no knowledge of the alleged offence.

The third-party owner should not remain passive during the criminal proceedings.

Ownership and good faith should be affirmatively demonstrated.

17. How Should a Third Party Prove Good Faith?

Depending on the facts, useful evidence may include:

• purchase invoices;
• registration records;
• leasing agreements;
• rental agreements;
• transport contracts;
• insurance documents;
• payment records;
• company records;
• correspondence;
• instructions given to the driver or employee;
• compliance policies;
• evidence showing lack of knowledge of the alleged criminal activity.

The purpose is not merely to prove formal ownership.

The owner should also establish that it did not knowingly provide or allocate the property for the commission of the alleged offence.

18. The Constitutional Protection of the Bona Fide Owner

The confiscation of third-party property also engages the constitutional right to property.

The Turkish Constitutional Court has examined cases where property belonging to third parties was confiscated because it had allegedly been used in criminal activity.

In Mehmet Salih Baltacı, the Constitutional Court dealt with the confiscation of vehicles belonging to a third party and emphasised the importance of examining whether that person was genuinely a bona fide owner. The Court found a violation of the right to property where the necessary assessment concerning the third party’s good faith had not been adequately made.

The Constitutional Court’s case law therefore makes clear that the mere physical use of property in connection with an offence does not eliminate the need to assess the rights and position of its actual owner.

19. Seizure Itself Can Also Affect the Right to Property

Even before confiscation, a lengthy seizure can significantly interfere with property rights.

A business may remain the formal owner while being unable to use, sell or commercially exploit its property for months or years.

The Constitutional Court evaluates both confiscation and temporary seizure measures in the context of the constitutional right to property and the requirement to maintain a fair balance between the public interest and the individual’s property rights.

Therefore, where continued seizure is no longer necessary or proportionate, a return application should be considered rather than simply waiting for the criminal proceedings to end.

20. Can the Owner Request the Goods Back Before the Criminal Case Ends?

Yes, depending on the circumstances.

Article 131 of the Code of Criminal Procedure does not require the criminal case always to reach a final judgment before seized property can be returned.

If:

• continued retention is no longer necessary for the investigation or prosecution; or
• it has become apparent that the property will not be subject to confiscation,

the competent prosecutor, judge or court may order its return.

This can be particularly important for:

• expensive machinery;
• commercial vehicles;
• electronic goods;
• perishable goods;
• seasonal products;
• property rapidly losing commercial value.

21. What Should Be Challenged: The Seizure or the Confiscation?

Sometimes both — but at different stages and on different legal grounds.

Challenging Seizure

Arguments may include:

• lack of procedural requirements;
• lack of necessity;
• lack of evidential relevance;
• disproportionality;
• property belonging to an unrelated third party;
• absence of a realistic confiscation possibility;
• continuation of the seizure no longer being necessary.

Challenging Confiscation

The defence may instead argue:

• no intentional offence has been established;
• the property was not used in or allocated to the offence;
• the goods were not produced through the offence;
• the property belongs to a bona fide third party;
• confiscation would be disproportionate;
• the statutory conditions under Law No. 5607 are not satisfied;
• the property is otherwise legally possessed and traded.

These are legally distinct arguments.

22. The Most Important Practical Question

When a foreign client says:

“Turkish Customs confiscated my goods,”

the lawyer should not immediately assume that there is already a final confiscation judgment.

The following documents should first be obtained:

1. seizure report;
2. Customs Enforcement report;
3. prosecutor’s investigation number;
4. judicial seizure or approval decision;
5. indictment, if issued;
6. administrative customs decisions;
7. any confiscation or transfer-of-ownership decision;
8. ownership documentation;
9. court judgment, if proceedings have concluded.

Only then can it be determined whether the goods are:

temporarily seized, administratively retained, subject to an administrative transfer-of-ownership decision, requested to be confiscated, or already finally confiscated.

Conclusion

Under Turkish law, customs seizure and customs confiscation are not the same thing.

Seizure — elkoyma — is primarily a temporary procedural measure.

Confiscation — müsadere — is a criminal-law security measure capable of permanently removing crime-related property from the owner’s patrimony.

Transfer of ownership to the public — mülkiyetin kamuya geçirilmesi — is a separate concept associated with administrative sanctions and must be examined under its own statutory basis.

In smuggling investigations under Law No. 5607, goods may first be seized and later become the subject of confiscation proceedings, but one does not automatically establish the other.

For the owner of seized goods, the most important questions are therefore:

Is the measure temporary or final?
Which authority issued it?
What is its statutory basis?
Is there a criminal investigation?
Are the goods themselves illegal or merely connected with an alleged offence?
Does the property belong to a bona fide third party?
Are the substantive requirements for confiscation satisfied?
Is continued seizure proportionate and necessary?
Can return be requested before the criminal proceedings end?

The answers to these questions determine whether the appropriate legal remedy is a challenge to the seizure, an application for return, a defence against confiscation, an objection to an administrative sanction or a combination of several legal remedies.