This offence is regulated in Article 79 of the Turkish Penal Code (TCK), Law No. 5237:
(1) Any person who, with the aim of obtaining a material benefit, directly or indirectly, by unlawful means;
a) brings a foreigner into the country or enables him to remain in the country,
b) enables a Turkish citizen or a foreigner to leave the country,
shall be punished with imprisonment of three to eight years and a judicial fine of one thousand to ten thousand days. (Additional sentence: 22/7/2010 – Law No. 6008, Art. 6) Even if the offence remains at the stage of attempt, a penalty shall be imposed as if it had been completed.
(2) (Additional paragraph: 22/7/2010 – Law No. 6008, Art. 6) Where the offence;
a) creates a danger to the life of the victims,
b) is committed by subjecting the victims to degrading treatment, the penalty to be imposed shall be increased by one half to two thirds.
(3) (Amended: 6/12/2019 – Law No. 7196, Art. 56) Where this offence is committed jointly by more than one person, the penalty to be imposed shall be increased by up to one half; where it is committed within the framework of the activities of an organisation, the penalty to be imposed shall be increased by one half to one fold.
(4) Where this offence is committed within the framework of the activities of a legal person, the security measures specific to legal persons shall be imposed on it.
The legal interest protected by the offence of migrant smuggling is predominantly human dignity and honour. While the purpose of regulating the offence is to protect these values, it is also to protect the economic order and demographic structure of states. Looking at the legislative rationale of the article:
“The article has been included in the Draft in order to fulfil the requirements of the provisions of the ‘United Nations Convention against Transnational Organized Crime’ and the ‘Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime’, which have also been ratified by Türkiye.
In order to obtain a material benefit, migrants are smuggled into other countries, generally by means of criminal organisations, and brought into the country by unlawful means, and the desperate people who fall into the hands of these organisations may suffer serious and sometimes irreparable harm to their life and bodily integrity.
The first paragraph of the article defines the alternative acts constituting the offence of migrant smuggling. According to the definition, bringing a foreigner into the country or enabling him to remain in the country, or enabling a Turkish citizen or a foreigner to leave the country, by unlawful means with the aim of obtaining a material benefit, directly or indirectly, is defined as an offence with alternative acts.
Accordingly, enabling foreigners who, although they have entered the country lawfully, have not been granted permanent residence in Türkiye by the competent authorities to remain in the country will also constitute this offence.
The mental element of the offence is that the act is committed “with the aim of obtaining a material benefit, directly or indirectly”. For the offence to be constituted, the existence of this aim is necessary and sufficient; however, the benefit need not have been obtained. This element makes it possible to distinguish the offence from, for example, acts of bringing certain persons into the country for terrorist purposes. Moreover, the real victims of this offence are people struggling, because of their desperation and poverty, to find a means of earning a living.
The second paragraph provides that, where the offence of migrant smuggling is committed within the framework of the activities of an organisation, the penalties to be imposed shall be increased by one half.
The final paragraph of the article provides that, where this offence is committed within the framework of the activities of a legal person, the security measures specific to legal persons shall also be imposed on the legal person.” That is how it reads.
The aim in carrying out the act forming the subject of the offence must be to obtain a material benefit, directly or indirectly. And this act must be carried out by unlawful means. Bringing a foreigner into the country or enabling him to remain in the country by lawful means will not give rise to the offence, even if a material benefit is obtained. Apart from material benefit, for example, a long-haul lorry driver coming to our country from abroad who brings someone into the country unlawfully because he feels sorry for a person left stranded on the road (without receiving any material consideration) will not commit this offence.
The legislature has listed alternative acts for this offence to be constituted. The first is “bringing a foreigner into the country or enabling him to remain in the country”. As stated above, bringing the foreigner into the country must have been done unlawfully and for a material benefit. Enabling him to remain in the country, on the other hand, consists of acts such as providing that foreigner with accommodation, supplying food, or giving him financial assistance with which he can sustain his life. For example, letting immovable property to a foreigner who has entered the country by unlawful means will also constitute this offence, since it enables him to remain in the country. The other alternative act is “enabling a Turkish citizen or a foreigner to leave the country”. An important point needs to be addressed here. The acts of bringing a Turkish citizen unlawfully from a foreign country into our country, or enabling this, do not constitute the offence of migrant smuggling. This offence can be constituted only where a Turkish citizen is enabled to leave the country. Likewise, enabling a foreigner to leave the country unlawfully also constitutes the offence. At this point, a situation that may give rise to questions also needs to be addressed. For example, the act of leaving foreigners or Turkish citizens at another place within the country, after transporting them in the back of a lorry on the claim that they would be taken to Europe, does not constitute the offence of migrant smuggling; it constitutes the offence of fraud. This is because the legislature has criminalised not the transportation of these persons but their being taken out of the country.
Although the subject of the offence of migrant smuggling is disputed in the doctrine, the prevailing view is that it is the migrants. In this offence the victim is everyone who makes up society; the offence is committed against humanity and society. Since the victims of the offence here are not the migrants, there will not be as many offences as there are migrants. Otherwise, in a smuggling offence involving 30 migrants, 30 separate offences would have been committed and the provisions on successive offences would have to be applied. (TCK 43-2) Of course, it should not be forgotten that the number of migrants may be taken into account in determining the sentence. This offence can be committed by positive acts (doing or acting) as well as by omission. As an example of the form that can be committed by omission, one may cite a passport officer who, in return for a material consideration, lets into the country someone who should not have entered the country.
No special characteristic is required of the perpetrator of the offence, and it is not a special offence. As is well known, a special offence is one which only certain persons can commit. The offence of migrant smuggling can be committed by anyone. If we look at the qualifying elements of the offence, as well as having a form requiring a heavier penalty, it also has a qualified form requiring a lesser penalty. When we look at the second paragraph of the text of the article, it reads: where the offence creates a danger to the life of the victims or is committed by subjecting the victims to degrading treatment, the penalty to be imposed shall be increased by one half to two thirds. For example, the transportation of people among animals, in an airless and extremely filthy place. In addition, the other aggravated forms listed in the article are its commission by more than one person or within the activities of an organisation. Although the organisation offence is included in the TCK as a separate, independent offence, for the purposes of Article 79 it is included as an aggravated form requiring a heavier penalty. Where the offence of migrant smuggling is committed in an organised manner, no separate penalty will be imposed for the offence of establishing an organisation. This is because it has been listed as an aggravating factor in an independent offence. In order to be able to apply real concurrence to the offence of establishing an organisation, that is, in order to be able to impose a separate penalty, the activity of an organisation must not be an aggravated form within the structure of the relevant offence, so that separate punishment can be ensured both for the relevant offence and for the organisation. The fourth paragraph of the text of the article contains a provision concerning legal persons. It provides that, where this offence is committed within the framework of the activities of a legal person, the security measures specific to legal persons shall be imposed on the legal person. That is to say, the operating licence of the legal person may be revoked or the provisions on confiscation may be applied.
Turning to the mental elements of the offence: this offence is not one that can be committed through negligence. It is a type of offence that can be committed only intentionally, and indeed only with direct intent. The reason for direct intent being required is the wording “acting with the aim of obtaining” in the text of the article. As is well known, in matters set out in the law in this way, the existence of direct intent is referred to. The legislature has not allowed for cases where these offences are committed with eventual intent. Among the special forms of appearance of the offence, the provisions on attempt differ from those of other offences. Even if the perpetrator begins the acts of execution of the offence but is unable to bring about the result for reasons beyond his control, the offence will be deemed completed. For example, where the perpetrator has brought foreigners to the borders of our country but is caught at the last moment, the offence will also be deemed completed and the provisions on attempt will not be applied. The penalty for the offence is imprisonment of three to eight years and a judicial fine of one thousand to ten thousand days, and in terms of jurisdiction it falls within the jurisdiction of the Criminal Courts of First Instance. The investigation is not subject to a complaint, and an investigation is commenced ex officio as soon as the relevant authorities learn of the offence.
This is an English translation of the author’s article originally written in Turkish.
Link to the original article on Hukuki Haber: https://www.hukukihaber.net/gocmen-kacakciligi-sucu