Crime and punishment of migrant trafficking

The history of migration is almost as old as human history. In every period, some people have had to live in worse conditions than others. These inequalities are based on economic reasons as well as political and social reasons. People living in poor conditions migrate to live in countries with better welfare conditions. However, the countries they want to migrate to have also tried to limit immigration in order to protect their own interests. People who cannot enter other countries legally have begun to be seen as an economic resource by some malicious people. The protection of immigrants, who are often treated degradingly to human dignity and are often killed, as well as the protection of other countries' interests, has led to the birth of the crime of immigrant smuggling. Immigrant smuggling is regulated as a crime in the legislation of almost all countries.

When we look at Türkiye's geopolitical structure, it will be easier to understand why the crime of immigrant smuggling is encountered so frequently. Our country, located between Asia and the European continent, is a transit country in terms of immigrant smuggling. For this reason, immigrant smuggling is among the most common types of crimes in Türkiye. This situation is confirmed by statistical data.

The crime of immigrant smuggling is regulated under the title of international crimes in Article 79 of the Turkish Penal Code. In the doctrine, the issue of whether the type of crime is an international crime has caused differences of opinion. However, the dominant view is that the crime of immigrant smuggling is a type of crime that crosses borders, not international.

The legal value protected by the crime of immigrant smuggling is mixed. On the one hand, while the physical integrity, dignity and freedom of individuals are protected, on the other hand, public order, economy and the sovereign authority of states are protected. The subject of crime is immigrants.

Perpetrator of the CRIME OF MIGRANT TRAFFICKING

No specific characteristics were sought for the perpetrator of the crime. It is a type of crime that can be committed by anyone. The subject of the crime of immigrant smuggling is immigrants. At the same time, the victim of the crime is also an immigrant. For this reason, immigrants cannot be punished.

If the crime is committed by public officials and other conditions specified in Article 266 of the Turkish Penal Code are met, the penalty to be given to the perpetrator is increased.

TCK has regulated that perpetrators can only be real persons. In this case, it is clear that legal entities cannot be perpetrators. However, security measures are imposed in crimes committed on behalf of legal entities. As a matter of fact, TCK 79/4 states, "If this crime is committed within the framework of the activities of a legal entity, security measures specific to these are imposed on the legal entity." It is in the form.

VICTIM OF MIGRANT TRAFFICKING

79. In the justification of the article, "The real victims of this crime are people who are struggling to earn a living for themselves due to their desperation and poverty." The expression was used. It is understood from the justification that the victims of the crime are immigrants. However, there are also opinions in the doctrine that the victim is the international community.

The 8th Criminal Chamber of the Supreme Court of Appeals ruled in its decision numbered 2006/3617 E. that the victim is the international community, stating that "immigrants who are socially harmed by the crime are not the legal victims of the crime of immigrant smuggling, but are the subject of the crime, and the legal victim of the crime is the international community."

INTENTION IN THE CRIME OF MIGRANT TRAFFICKING

Intent constitutes the moral element of the crime of immigrant smuggling. A crime can only be committed intentionally. In addition, for the crime to occur, the perpetrator must act with the aim of obtaining financial benefit. In this form, the ability to commit a crime depends on the existence of special intent. If there is no purpose to obtain material benefit, a crime will not occur. Moral interests cannot be considered within the scope of crime. As a matter of fact, the Supreme Court ruled that "Since it has not been proven that the defendant directly or indirectly obtained financial benefit from the act of getting his brother-in-law and his friend's brother abroad during the control at the Customs Directorate while trying to take him abroad with his vehicle, or that he committed the action taken for this purpose, he should be acquitted." There is a decision as follows.

Anyone who knowingly rents his house to people whose presence in the country is not legal is also considered to have committed a crime. In addition, actions such as forced labor are considered the crime of human trafficking, not immigrant smuggling.

Aiming to obtain financial benefit directly or indirectly is not effective in the formation of the crime. The perpetrator may obtain the benefit directly from the immigrant or from a third party.

The crime of immigrant smuggling cannot be committed with possible intent.

HOW IS THE CRIME OF MIGRANT TRAFFICKING COMMITTED?

According to Article 79 of the Turkish Penal Code, the crime of immigrant smuggling is;

- Bringing a foreigner into the country illegally,

- Allowing a foreigner to stay in the country illegally, or

- Allowing a Turkish citizen or foreigner to go abroad through illegal means

Processed by.

As can be seen, the law regulates the crime as an optional mobile crime. A crime occurs with the presence of any of the situations listed in the article. Performing more than one of the actions written in the article does not require separate punishment. The perpetrator who commits one or more actions is considered to have committed a single crime and is punished for a single crime.

The crime of immigrant smuggling is a type of crime that can only be committed through executive actions. Since there is no regulation regarding negligent acts in the article of the law, punishing negligent acts would constitute a violation of the law.

Letting a Foreigner into the Country Illegally

As we mentioned above, the first of the optional acts of the crime is bringing a foreigner into the country illegally. The ability to commit a crime in this way depends on the subject of the crime being foreigners. Anyone who is not a Turkish citizen is a foreigner. It is not a crime if individuals with citizenship are brought into Türkiye illegally.

Country refers to all land, sea and air countries within the sovereignty of the Republic of Türkiye. It is not the case that a crime would occur if the foreigner was only allowed into the land country. The expression "bringing into the country" should be understood as illegal entry. The perpetrator does not need to cross the country border with the immigrant. A crime can also be committed by giving guidance.

Another condition for a crime to occur is to enter illegally. The conditions for entering the air, sea and land country of the Republic of Turkey are regulated by the Passport Law. Entries made in violation of this law are considered illegal entries and constitute a crime. In addition, entry into the country is only possible through places designated as entrance gates. If foreigners are brought into the country from outside the designated entry points, the crime of immigrant smuggling comes to the fore.

Ensuring a Foreigner Stays in the Country Illegally

Again, like the movement we mentioned above, only foreigners can be the subject of this movement. States have the authority to freely determine the conditions for foreigners to stay in their countries. This authority can only be limited due to international agreements. The conditions for foreigners to stay in the country are determined in Turkish Legislation. It is against the law for those who do not comply with these conditions to stay in the country.

If a visa is granted, the foreigner can only stay in the country for the duration of his/her permit (90 days). A foreigner who wants to stay longer than the visa period must obtain a residence permit. Foreigners with a work permit also have a residence permit. Permission from the Ministry of Internal Affairs is required for residence in villages. Again, for military regions, permission from the Ministry of General Staff is required. Foreigners who do not meet these conditions constitute the subject of the crime.

It is possible to enable foreigners to stay in the country in two ways. The first is to protect the person who has entered the country illegally, and the second is to provide shelter or employment opportunities in order to prevent the foreigner from being deported.

In a sample Supreme Court decision, it was stated that "the crime of immigrant smuggling was committed by employing and sheltering Syrian immigrants, who were not able to be in the country legally as of the date of the crime, for a long period of time by the defendant, without notifying any competent authority, and in accordance with some legal regulations made about Syrian immigrants after the date of the crime, it was understood that granting temporary protection status to these immigrants would not retroactively decriminalize the defendant's action. "The decision given by him was found to be justified, as it was established that he allowed Syrian immigrants, who entered the country illegally in order to gain benefits, to stay in the country illegally and thus committed the crime charged on him." The provision was made as follows.

Encouraging a foreigner to stay in the country is not considered a crime. In addition, a benefit purpose must be pursued due to the opportunity provided to the foreigner. Giving food to a stranger out of humane feelings is not considered a crime. Again, providing food or drink once is not considered a crime.

Enabling Turkish Citizens or Foreigners to Go Abroad by Illegal Means

In this action, the subject of the crime may be a foreigner or a citizen. The occurrence of the crime depends on the illegality of leaving the country. Again, entry and exit from the country are subject to certain conditions. It is regulated in the Law on Foreigners and International Protection that foreigners can exit through designated exit gates. Exit conditions are regulated in the Passport Law. Allowing a person to be taken abroad without complying with these conditions causes the crime of immigrant smuggling.

It is considered a crime to take people abroad who are prohibited from going abroad under judicial control.

By providing opportunities, it is meant to provide financial means. For a crime to occur, the perpetrator must provide concrete assistance. It is not necessary for a Turkish citizen or foreigner to cross the border for a crime to occur. The crime is completed by performing enabling actions (giving a fake passport, providing a vehicle, etc.).

PUNISHMENT FOR MIGRANT TRAFFICKING

The punishment for the crime of immigrant smuggling is regulated in Article 79 of the Turkish Penal Code. According to the article;

The punishment for the simplest form of the crime requires imprisonment from 3 to 8 years and a judicial fine from one thousand days to ten thousand days. Imprisonment and judicial fines are imposed together.

In case of the qualified circumstances listed below, the penalty is increased.

If the crime is committed within the framework of the activities of a legal entity, security measures specific to them are imposed on the legal entity.

QUALIFIED CONDITIONS OF MIGRANT TRAFFICKING CRIME

According to Article 79 of the Turkish Penal Code, it is regulated that if the crime of immigrant smuggling is committed within the framework of organizational activities, the penalty to be given to the perpetrator will be increased from half to one fold. The increase rate was changed with the amendment made to the law on 06.12.2019. In addition, with the amendment, another qualified condition was added to the article. This change covers the situation where the crime is committed by more than one person. According to the law, if the crime of immigrant smuggling is committed by more than one person, the penalty to be given to the perpetrator is increased by half.

The situation where there is a danger to the life of the victims due to the crime of immigrant smuggling is another qualified situation regulated by the law. If the lives of the victims are in danger due to the crime, the penalty to be given to the perpetrator is increased by half.

If the victims are subjected to degrading treatment, the penalty will be increased by half. The penalty will be increased in cases such as transporting immigrants in truck beds, starving them, or transporting them on a small boat.

ATTEMPT MIGRANT TRAFFICKING CRIME

The crime of immigrant smuggling is a crime of attempt. Due to the difficulty in identifying the enterprise in practice, the law was amended. As a result of this change, it has been regulated that if the crime remains an attempt, it will be punished as if it were completed.

The perpetrator who starts the executive actions to commit the crime is punished as if the crime was completed. There will be no reduction in the penalty imposed. "Even if the crime remains at the attempted stage, it is punished as if it were completed."

As a matter of fact, the Supreme Court stated that "The defendant, who is a Syrian national who wanted to go abroad illegally, in line with the agreement he made with the person named İ., who was understood to be involved in immigrant smuggling and whose identity cannot be determined, arranged the victims of Syrian nationality like himself, who wanted to escape abroad, by persuasion, connected them with the person named İ., and organized the money business, and the victims, whom he took to the beach two days before the incident, came back to the hotel when they could not check out due to unsuitable conditions, and he returned to Istanbul and brought the victims to İ. illegally." "The legal liability of the defendant in such an action is the attempt to smuggle immigrants, and the criminal liability is the equivalent of the crime completed in accordance with the last sentence of Article 79/1 of the Turkish Penal Code."

CONFESSION IN THE CRIME OF MIGRANT TRAFFICKING

The institution of confiscation, regulated by Article 54 of the Turkish Penal Code, is the transfer of a person's ownership of something to the public due to a crime that can be committed. In order to commit the crime of immigrant smuggling, a number of tools must be used. These vehicles used may be subject to confiscation because they are linked to crime. For more detailed information about confiscation: What is Confiscation? You can review our article titled.

TRIAL FOR MIGRANT TRAFFICKING

The court responsible for the crime of immigrant smuggling is the criminal court of first instance.

The crime is not one of the crimes within the scope of reconciliation.

Immigrant smuggling is not a crime subject to complaint. Investigation and prosecution are carried out automatically.