1. Introduction

The seizure or retention of goods by Turkish customs authorities may have significant commercial and legal consequences. Imported goods, export goods, commercial merchandise, vehicles, electronic products, luxury goods, precious items or other assets may be prevented from entering or leaving the country because of suspected customs violations, unpaid customs duties, import restrictions, incorrect declarations or allegations of smuggling.

However, the fact that goods are physically held by a customs authority does not necessarily mean that the same legal regime applies in every case. Turkish law distinguishes between administrative customs measures and criminal-procedure seizure measures. This distinction determines the competent authority, the applicable procedural rules, the available remedies and, ultimately, the procedure for recovering the goods.

The principal legislation relevant to such disputes includes:

• Law No. 4458 on Customs;
• Law No. 5607 on Anti-Smuggling;
• Law No. 5271 on Criminal Procedure (“CMK”);
• Law No. 5237, the Turkish Criminal Code (“TCK”); and
• Law No. 5326 on Misdemeanours.

Under Article 9 of Law No. 5607, seizure relating to suspected smuggled goods operates within the criminal-procedure framework, while Article 242 of the Customs Law provides a separate administrative objection mechanism for customs duties, penalties and administrative decisions.

2. “Seizure”, “Detention”, “Confiscation” and “Public Ownership” under Turkish Law

One of the most important issues in international customs disputes is terminology. English terms such as “seizure”, “detention” and “confiscation” should not be used interchangeably when describing Turkish legal procedures.

A. Seizure – “Elkoyma”

The closest Turkish legal equivalent of seizure is “elkoyma.”

Elkoyma is generally a temporary protective measure rather than a final transfer of ownership.

Article 123 of the Turkish Criminal Procedure Code provides that property considered useful as evidence or potentially subject to confiscation may be taken into custody. Where the person possessing such property refuses to surrender it voluntarily, the property may be seized.

Accordingly, seizure does not automatically mean that the State has acquired ownership of the goods.

The purpose of seizure may include:

1. preserving evidence;
2. preventing disappearance or destruction of goods;
3. securing property potentially subject to confiscation; or
4. facilitating a criminal investigation.

This distinction is particularly important in customs cases because seized commercial goods may remain legally owned by the importer or another third party throughout the investigation.

3. Detention – “Alıkoyma” and “Muhafaza Altına Alma”

There is no single Turkish legal term corresponding to every possible use of the English expression “detention of goods.”

Depending on the factual and legal circumstances, the appropriate Turkish terminology may be:

• alıkoyma;
• muhafaza altına alma;
• retention under customs supervision; or
• temporary withholding of the goods pending completion of customs procedures.

Under Article 123 CMK, property relevant as evidence or potentially subject to confiscation may initially be muhafaza altına alınır, meaning that it is taken into official custody.

Law No. 5607 additionally uses “alıkoyma” as a specific technical concept concerning certain vehicles used in connection with smuggling. A vehicle subject to the statutory conditions may be detained, and in certain circumstances it may be returned if security corresponding to its value is deposited with the customs administration within thirty days.

Therefore, when translating a Turkish customs file into English, “detention” should not automatically be translated back into Turkish as “elkoyma.” The actual underlying legal measure must first be identified.

4. Confiscation – “Müsadere”

Confiscation generally corresponds to “müsadere” in Turkish criminal law.

Unlike seizure, confiscation is not merely a temporary procedural measure. It is a substantive criminal-law security measure affecting ownership.

Article 54 of the Turkish Criminal Code regulates confiscation of property. As a general principle, property used for committing an intentional offence, allocated for the commission of an offence or resulting from an offence may be subject to confiscation, subject to statutory limitations and protections concerning bona fide third parties.

The distinction may therefore be expressed as follows:

Seizure (elkoyma) = provisional measure.

Confiscation (müsadere) = possible final legal consequence.

A customs authority’s seizure of goods does not, by itself, establish that those goods will ultimately be confiscated.

5. Public Ownership – “Mülkiyetin Kamuya Geçirilmesi”

Another concept frequently confused with confiscation is “mülkiyetin kamuya geçirilmesi,” which may be translated as transfer of ownership to the public / transfer to public ownership.

This institution is regulated principally under Article 18 of Law No. 5326 on Misdemeanours.

It is an administrative sanction, rather than criminal-law confiscation in the strict sense. The Misdemeanours Law allows transfer to public ownership where legislation provides for such a consequence regarding property constituting the subject matter of a misdemeanour or obtained through a misdemeanour.

Importantly, before the decision becomes final, the relevant public authority may retain or seize the property in order to secure the effectiveness of the eventual decision.

Accordingly:

• müsadere primarily belongs to criminal law;
• mülkiyetin kamuya geçirilmesi primarily belongs to the administrative-sanctions regime.

The two concepts should therefore not be translated or legally analysed as if they were identical.

6. Administrative Customs Measures versus Judicial Seizure

This distinction is usually the starting point of any customs recovery strategy.

A. Administrative Customs Disputes

A customs authority may issue decisions concerning matters such as:

• tariff classification;
• customs value;
• customs duties;
• administrative penalties;
• import or export formalities;
• deficiencies in documentation;
• compliance with customs regimes; and
• other administrative customs obligations.

Under Article 242 of Law No. 4458, persons concerned may object to notified customs duties, penalties and administrative decisions within fifteen days from notification. The objection is submitted to the superior customs authority, or to the same authority where no superior authority exists. The administration is required to decide the objection within thirty days. A rejection may subsequently be challenged before the competent administrative judiciary.

Therefore, where the continued detention of goods is the consequence of an administrative customs decision, Article 242 may form a central part of the legal strategy.

However, this mechanism should not be confused with challenging a criminal-procedure seizure order.

B. Judicial Seizure in a Smuggling Investigation

Where customs officials suspect an offence falling within Law No. 5607 on Anti-Smuggling, the matter may become a criminal investigation.

Article 9 of Law No. 5607 expressly regulates search and seizure in relation to smuggling cases and links the procedure to criminal-procedure rules.

In this situation:

• a criminal investigation file may be opened;
• the public prosecutor becomes a central authority;
• the Criminal Procedure Code governs the seizure;
• judicial review becomes available; and
• eventual confiscation may be requested before the criminal court.

Accordingly, an administrative objection submitted only to the customs authority may be insufficient to obtain release of goods that are being held pursuant to a criminal seizure.

7. Judicial Control over Seizure

Under Article 127 CMK, seizure is principally based on a judicial decision. In urgent circumstances, however, the public prosecutor—and in circumstances provided by law law-enforcement officers acting under prosecutorial authority—may carry out seizure without obtaining a prior judicial order.

A seizure conducted without a prior judicial decision must be submitted to the competent judge for approval within twenty-four hours. The judge must issue a decision within forty-eight hours from the seizure, failing which the seizure automatically ceases to be effective.

This mechanism provides an important safeguard against indefinite executive control over private property.

In the investigation stage, judicial review is generally exercised within the criminal peace judgeship (Sulh Ceza Hâkimliği) system in accordance with the applicable provisions of the Criminal Procedure Code.

For a lawyer reviewing a customs seizure file, it is therefore important to obtain and examine:

• the seizure record;
• the prosecutor’s instructions;
• the judicial approval decision;
• the date and exact time of seizure;
• the date on which judicial approval was requested; and
• the judicial decision approving or rejecting the measure.

A procedural defect in the establishment or continuation of the seizure may provide an independent ground for challenging the measure.

8. Application to the Public Prosecutor for Return of the Goods

The most important provision concerning return of judicially seized property is Article 131 CMK.

Under this provision, property belonging to the suspect, accused or a third party may be returned where:

1. it is no longer necessary to retain the property for the investigation or prosecution; or
2. it becomes apparent that the property will not be subject to confiscation.

Return may be ordered ex officio or upon application by the public prosecutor, judge or court. A decision rejecting a request for return may be challenged through the objection procedure.

This provision is particularly important because a final judgment in the criminal proceedings is not always required before goods can be returned.

Therefore, an application for return may be filed while the investigation remains pending.

9. Return of Goods Before a Final Judgment

One of the most common misconceptions is that property seized in a criminal investigation can only be returned after acquittal or after the entire criminal case becomes final.

This is incorrect as a general rule.

Article 131 CMK expressly allows the return of seized property before final judgment if continued possession by judicial authorities is no longer required and the property is not expected to be confiscated.

A strong application for early return should therefore demonstrate, depending on the circumstances, that:

• all necessary examinations have been completed;
• samples have already been obtained;
• photographs, expert reports or records adequately preserve the evidence;
• continued physical possession of the entire quantity of goods is unnecessary;
• the applicant is the lawful owner;
• the applicant acted in good faith;
• the goods themselves are lawful commercial products;
• the goods were not used as an instrument of an intentional crime;
• confiscation requirements are not satisfied; and
• continued seizure imposes a disproportionate commercial burden.

The Constitutional Court has repeatedly considered seizure and confiscation from the perspective of the constitutional right to property and has emphasised the need to maintain a fair balance between the public interest and the individual’s property rights.

10. Third-Party Ownership

The fact that goods are found in the possession of a suspect does not necessarily establish that the suspect owns them.

Commercial goods may belong to:

• an importer;
• exporter;
• manufacturer;
• supplier;
• purchaser;
• finance company;
• leasing company;
• logistics client; or
• another bona fide third party.

Turkish criminal law provides protection for bona fide third-party ownership in the context of confiscation, and Article 131 CMK expressly recognises that seized property may belong to third parties.

Consequently, a third-party return application should clearly document ownership through instruments such as:

• invoices;
• purchase contracts;
• payment records;
• customs declarations;
• transport documents;
• bills of lading;
• warehouse records;
• insurance documents; and
• accounting records.

Establishing genuine third-party ownership can materially change the confiscation analysis.

11. Status of the Goods During Investigation and Trial

Seized goods do not necessarily remain physically untouched in a customs warehouse until the criminal proceedings become final.

Turkish law contains mechanisms concerning custody, storage, delivery to a custodian and, in certain categories, liquidation or destruction.

This is particularly important under Law No. 5607.

The legislation and implementing rules provide special procedures for seized goods and detained vehicles. Depending on the nature of the goods, storage requirements, deterioration risks and statutory rules, goods may become subject to liquidation, sale or destruction before the underlying criminal proceedings have been finally concluded.

Therefore, filing a return application alone may not always provide sufficient commercial protection.

Where there is an imminent risk of liquidation or destruction, the lawyer should consider simultaneously requesting:

• return of the goods;
• lifting of seizure;
• suspension or prevention of liquidation;
• preservation of sufficient samples instead of the entire shipment; and
• appropriate interim protection from the competent judicial authority.

12. Special Rule under the Anti-Smuggling Law

Law No. 5607 contains an important limitation.

Where goods constitute the subject matter of an offence or misdemeanour under the Anti-Smuggling Law and are legally capable of being subjected to confiscation or transfer to public ownership, their return may be restricted.

The current statutory framework specifically addresses the relationship between return, confiscation and liquidation of such goods.

Accordingly, a request based solely on the argument that “the owner needs the goods for commercial purposes” will ordinarily be insufficient.

The legal question is whether the goods themselves remain legally capable of being confiscated or transferred to public ownership.

13. Vehicles Used in Alleged Smuggling

Vehicles require a separate assessment.

Law No. 5607 contains a specific regime for vehicles used in connection with smuggling offences. Depending on statutory conditions, a vehicle may be seized or detained.

The legislation also provides a security mechanism under which a detained vehicle may, in certain circumstances, be returned to its owner where security equivalent to the vehicle’s value is deposited with the customs administration within thirty days from detention.

Accordingly, in vehicle cases the lawyer should not examine only the ordinary CMK return mechanism but should also analyse the specific provisions of Law No. 5607.

14. Risk of Confiscation

When evaluating the probability of obtaining return of the goods, the central issue is frequently whether the goods satisfy the legal requirements for müsadere.

The assessment should include:

• whether the goods constitute the subject matter of the alleged offence;
• whether they were used in committing the offence;
• whether they were allocated for use in an offence;
• whether possession of the goods is itself unlawful;
• whether the applicant is a bona fide third party;
• whether confiscation would be proportionate; and
• whether a specific confiscation provision under Law No. 5607 applies.

The fact that goods have been seized does not automatically answer any of these questions.

Seizure preserves the possibility of confiscation; it does not itself constitute confiscation.

15. Constitutional Protection of Property

Long-lasting seizure may also raise constitutional issues.

Article 35 of the Turkish Constitution protects the right to property. Turkish Constitutional Court case law treats seizure and confiscation as interferences with property rights and examines whether the measure has a legal basis, pursues a legitimate public interest and preserves a fair balance between the interests of the individual and society.

The Constitutional Court has also dealt with cases involving goods or vehicles retained during criminal proceedings and has recognised that the duration and practical economic consequences of seizure may become relevant to the proportionality analysis.

Therefore, where valuable commercial goods have been held for an excessive period despite the completion of evidentiary examinations, proportionality and property-right arguments may strengthen a return application.

16. Recommended Legal Strategy

In practice, the legal strategy should begin with identifying the exact legal basis of the physical retention of the goods.

The lawyer should obtain:

1. the customs seizure or detention report;
2. the customs administrative decision;
3. any customs penalty decision;
4. the customs declaration;
5. the prosecutor’s investigation number;
6. the prosecutor’s seizure instruction;
7. the Criminal Peace Judgeship approval decision;
8. expert or laboratory reports;
9. documentation demonstrating ownership;
10. invoices and payment records;
11. transportation documents; and
12. any liquidation or destruction notification.

The case can then be classified into one of three broad categories:

Administrative customs dispute:
Administrative objection under Article 242 of the Customs Law followed, where necessary, by administrative litigation.

Criminal seizure:
Application to the public prosecutor under Article 131 CMK, together with judicial objection or review where appropriate.

Combined customs and criminal proceedings:
Parallel action may be necessary before both customs administrative authorities and criminal judicial authorities.

This classification is often more important than the name placed on the document by the customs authority.

17. Conclusion

The recovery of goods seized by Turkish customs authorities requires a distinction between temporary administrative control, judicial seizure, detention of vehicles, confiscation and transfer to public ownership.

The critical principles are:

Seizure does not automatically mean confiscation.

Confiscation does not occur merely because customs authorities physically possess the goods.

A criminal investigation does not necessarily have to become final before the goods can be returned.

Article 131 CMK permits return during an ongoing investigation or prosecution when continued retention is unnecessary and confiscation is no longer expected.

At the same time, cases arising under Law No. 5607 require particular caution because special seizure, vehicle detention, liquidation and confiscation rules may apply.

For this reason, the first legal question in every Turkish customs seizure case should not simply be “How can the goods be recovered?”

The correct preliminary question is:

“Under which legal authority and for what legal purpose are the goods currently being held?”

Once that question is answered, the appropriate administrative or judicial remedy can be determined.