Human trafficking crime

The crime of human trafficking was not included in the criminal law as a punishable act before 2003. The act, which was added to the penal code with the amendment made in 2003, was subject to sanctions.

TCK 80/1. According to the article, "Anyone who brings people into the country, takes them out of the country, supplies, abducts, takes them from one place to another, or transports them or shelters them by using threats, pressure, force or violence, abusing influence, deceiving, or taking advantage of the control possibilities or helplessness of people to obtain their consent, with the aim of forcing them to work, to serve, to engage in prostitution or slavery, or to ensure the donation of their body organs, is sentenced to imprisonment from eight to twelve years and a judicial fine of up to ten thousand days."

The legal value protected by the crime of human trafficking is of mixed nature, as in the crime of immigrant smuggling. While public order, general morality and public health values are protected, values such as human dignity and physical integrity are also protected.

PERPERT AND VICTIM IN HUMAN TRAFFICKING CRIME

Crime is a type of crime that can be committed by anyone. No specific characteristics were sought regarding the perpetrator. It does not matter whether the perpetrator is foreign or Turkish.

No specific characteristics were sought regarding the victim of the crime. Anyone can be a victim of crime. However, if the victim is under 18 years of age, TCK 80/3. According to the article, "In cases where people under the age of eighteen are recruited, kidnapped, taken from one place to another, or shipped or sheltered for the purposes specified in the first paragraph, the perpetrator is given the penalties specified in the first paragraph, even if none of the instrumental acts of the crime are used.

The crime of human trafficking can be committed on people who are brought from one province of Türkiye to another and used for the purposes listed above. Regarding the issue, the 8th Criminal Chamber of the Supreme Court of Appeals said, "It should be taken into account that the act of understanding that the defendant was caught while trying to persuade victims under the age of 15 at the time of the crime to steal them, while buying a ticket, will constitute the crime of human trafficking in proportion to the number of victims, and the duty to evaluate the evidence belongs to the High Criminal Court." There is a decision as follows.

INSTRUMENTAL ACTS IN THE CRIME OF HUMAN TRAFFICKING

The crime of human trafficking is a type of crime that can be committed with some optional actions. However, the occurrence of crime does not depend only on the existence of optional actions. In order for a crime to occur, a number of instrumental acts must be carried out as well as optional actions. The occurrence of the crime of human trafficking depends primarily on carrying out actions that affect the will of the victim or taking advantage of his difficult situation.

As a matter of fact, in a decision dated 2017 of the 18th Criminal Chamber of the Supreme Court of Appeals, "In order to constitute the crime of human trafficking regulated in Article 80 of the Turkish Penal Code, the perpetrator must take an action against the victim such as "threat, pressure, force or violence, abuse of influence, deceive or obtain consent by taking advantage of the control possibilities or helplessness over him" and while doing or after performing these actions, he must bring the victim into the country, take him out of the country, supply, kidnap him, supply him, kidnap him from one place to another. "For the crime to occur, at least one of the instrumental acts and the purposeful acts must be present. The instrumental acts must be done before the main or purposeful acts, or at the latest simultaneously with these acts. Thus, the will of the victim must first be broken with the instrumental acts, and then his apparent consent must be obtained, and then, by taking advantage of this, the main purposeful acts that constitute the crime must be carried out." He used his expressions.

80. The article enumerates some instrumental acts while regulating the crime. These elephants;

- Threat, pressure, force or violence,

- Abuse of influence,

- To deceive,

- Taking advantage of people's helplessness,

- Taking advantage of control opportunities over people.

It is possible to list them as follows. In cases where the above acts do not occur, the crime of human trafficking cannot be considered. As a matter of fact, the 8th Criminal Chamber of the Supreme Court of Appeals stated in a decision dated 2010, "The occurrence of the crime of human trafficking depends primarily on the performance of actions that affect the will of the victim or on taking advantage of his difficult situation. It should be observed that the element of deception does not occur in the case where it is understood that the victim had entered and exited Türkiye many times before and had a married sister in Türkiye, that she did not go to her sister but came to the defendant, stayed with him and engaged in prostitution, left after a disagreement and stayed in the hotel." He ruled as follows.

Again, which can be considered as an example of the desperation situation of the 18th Criminal Chamber of the Supreme Court of Appeals, "According to the scope of the file, sufficient, beyond doubt, definitive and convincing evidence could not be obtained to convict the victims of prostitution, who were not within the scope of Article 80/3 of the Turkish Penal Code and who committed prostitution with their consent, by using threats, pressure, force or violence, abusing their influence, deceiving, or obtaining their consent by taking advantage of their control opportunities or helplessness over people." It is necessary to understand the situation of a person who has nothing to do in matters that are necessary for the continuation of life such as eating, drinking, sheltering and traveling in the mentioned state of desperation, and in order to accept the existence of this qualified state, the victim must be in an environment of helplessness that he cannot overcome and must be exploited by taking advantage of this situation created by the state of need. Considering the fact that the victims come to Türkiye due to the economic difficulties in their country and turn to prostitution with their consent in order to earn money, it cannot be said that the defendants have obtained the consent of the victims by taking advantage of their desperation. "The decision to convict is grounds for reversal." There is also a decision as follows.

PRINCIPAL ACTIVITIES IN THE CRIME OF HUMAN TRAFFICKING

In order to be able to talk about the existence of the crime of human trafficking, one of the following optional actions must be present.

1- Bringing Into or Taking Out of the Country

The concept of country is used to express all air, land and sea countries under the country's sovereignty. The crime is completed when the victim is brought across the border into or out of the country.

2- Supply

In the crime of human trafficking, the subject of trade is the human being. Just like liking an item, certain characteristics are sought in people and provided when found. Procurement in the crime of human trafficking means finding the victim and providing it by performing actions in line with the purposes listed in the article.

3- Missing

It refers to changing the location of the victim. The kidnapped victim is placed under the sovereignty of the perpetrator. The kidnapping victim's sovereignty over himself ends. In order for the act of kidnapping to occur, the victim must be taken from one place to another.

4- Taking from One Place to Another

It is the taking of the victim from one place to another in line with the request of the perpetrator. It can be carried out by the perpetrator or his agent.

5- Hosting

It refers to providing the necessary conditions for the victim to live. The perpetrator places the victim somewhere and provides living conditions there.

6- Shipment

It refers to the victim being sent from one place to another alone.

INTENTION IN HUMAN TRAFFICKING CRIME

Human trafficking is a type of crime that can be committed intentionally. However, the legislator sought the existence of special intent in some crimes. In this crime, the existence of special intent is required. In terms of the crime, the law seeks the purpose of forced labor, service, prostitution or slavery, or the donation of body organs. If the perpetrator does not pursue one of the purposes listed, he will not be punished for the crime of human trafficking.

PUNISHMENT FOR HUMAN TRAFFICKING

According to Article 80 of the Turkish Penal Code, the penalty for the crime of human trafficking is determined as imprisonment from eight to twelve years and a judicial fine of up to ten thousand days. Imprisonment and judicial fine are imposed together.

Security measures are also imposed on legal entities due to these crimes. Confiscationdecision may be given.

It is possible to apply chain crime provisions in the crime of human trafficking. If the perpetrator commits a crime against more than one person with a single action, he will be punished for a single crime, but the punishment will be increased. In cases of human trafficking committed against different people at different times, the perpetrator will be punished according to the number of victims.

Attempted Human Trafficking Crime

The crime of human trafficking is completed when the perpetrator commits one of the actions of bringing the victim into the country, taking him out of the country, supplying, kidnapping, taking him from one place to another, transporting him or sheltering him, by using the tools specified in Article 80 of the Turkish Penal Code.

For the crime to remain attempted, the main acts must not have occurred despite the instrumental acts mentioned above. In such cases, the penalty to be given to the perpetrator is reduced. The discount rate is determined according to Article 35 of the Turkish Penal Code.