Immigrant is a person who voluntarily leaves their country of residence for another country with the intention of settling there due to various reasons such as education, economic, or political factors. Therefore, a person who temporarily goes to another country to work or for any other reason cannot be considered an immigrant.
A refugee is a person who is outside their country of citizenship or habitual residence due to fear of persecution based on their race, religion, nationality, membership in a particular social group, or political opinion, and is unable or unwilling to return to their country of citizenship or habitual residence. Refugees are individuals who leave their homeland in a state of concern and fear, being compelled to go elsewhere without even considering the idea of returning to the land they belong to.
A asylum seeker is someone who has applied for international protection as a refugee but whose legal status has not yet been officially recognized. Although their status is not officially recognized, asylum seekers cannot be forcibly returned to their country of citizenship under the principle of non-refoulement.
Immigrants are individuals who voluntarily leave their places of residence to settle in another country in order to have better living conditions, access to better education and healthcare facilities. On the other hand, refugees and asylum seekers are individuals who feel the need to leave their current location due to security concerns but have the desire to return to their countries if conditions permit.
Although the terms immigrant, refugee, and asylum seeker are considered different statuses, all individuals with these statuses are considered foreigners in terms of the crime of migrant smuggling. According to Article 79 of the Turkish Penal Code, which regulates the crime of migrant smuggling:
“(1) A person who directly or indirectly, in order to obtain material benefits:
Brings a foreigner into the country or provides the opportunity for them to stay in the country, Enables a Turkish citizen or a foreigner to leave the country, Shall be sentenced to imprisonment for a term of three to eight years and a judicial fine of one thousand to ten thousand days. Even if the crime remains in the attempt stage, it shall be punished as if it were completed.”
According to established case law and legal doctrine, the mental element of the crime is considered to be the intention to obtain material benefits directly or indirectly through the act. Therefore, the crime of migrant smuggling is a crime committed with the purpose of gaining profit.
The legal interest protected by this offense has a mixed nature. On the one hand, the interests of individuals such as the property and physical integrity of migrants are protected, and on the other hand, the interests of the national and international community, such as public order, security, and economy, are protected. The influx of migrants smuggled through illegal means can disrupt the free market economy by creating cheap labor, resulting in many citizens becoming unemployed. Enterprises that employ migrants in the informal sector also gain an advantage over their competitors and create unfair competition. Additionally, the informal employment of migrants leads to tax losses, thereby harming the financing source of public services and violating individuals’ right to benefit from public services (Zeynel T. Kangal, “Göçmen Kaçakçılığı Suçu,” DEÜ Hukuk Fakültesi Dergisi, Prof. Dr. Durmuş Tezcan’a Armağan, Vol. 21, Special Issue, 2019, p. 230).
In the crime of human trafficking, which is regulated as an alternative offense, the result is achieved by enabling a Turkish citizen or a foreigner to illegally leave the country by crossing the country’s territorial waters, airspace, or land borders. The crime may involve a foreigner or even a Turkish citizen. According to legal doctrine, the term “enabling” implies understanding any activity aimed at the illegal departure of migrants from the country, emphasizing that the perpetrator should have a more active role in aiding and abetting the crime. (Veli Özer ÖzbekKoray Doğan-Pınar Bacaksız-İlker Tepe, Türk Ceza Hukuku Özel Hükümler, 2017, 12th Edition, pp. 65-66).
In the alternative offense of “enabling a foreigner to stay illegally in the country,” the material subject of the offense is solely foreigners. Any behavior that prevents the deportation of foreigners who have been illegally brought into the country or who have entered the country in compliance with the laws but fail to meet the necessary conditions for staying (such as expiration of visa duration or lack of work or residence permits) should be considered within the scope of this alternative offense, such as providing fake passports, residence permits, or identity documents, providing accommodation or employment to the foreigner, or any other action that makes it difficult for authorities to track or locate the foreigner.
As emphasized in the decision of the Criminal General Assembly dated April 5, 2011, and numbered 204-39, the act of temporarily sheltering a migrant who is intended to be taken out of the country illegally in a house or hotel for the purpose of achieving that goal should be evaluated within the scope of the alternative offense of “enabling the migrant to leave the country,” rather than the alternative offense of “enabling the migrant to stay illegally in the country.” The term “enabling the stay in the country” is aimed at facilitating the illegal stay of migrants who do not intend to go to another country but wish to stay permanently in our country. Therefore, creating an environment for the illegal stay of foreign nationals who do not have the right to stay in the country, such as employing them or providing accommodation, or changing or hiding their location within the country in a way that makes it difficult for officials to track them, constitutes a crime.
Furthermore, Article 23, paragraph 5 of Law No. 6735 stipulates that an administrative fine shall be imposed on employers or their representatives who employ foreigners without a work permit for each foreigner. Accordingly, if the perpetrator has employed a foreigner who is illegally present in the country without a work permit, they will also have committed the alternative offense of enabling the foreigner to stay in the country in the crime of human trafficking. In summary, according to the decision of the Court of Cassation Criminal General Assembly dated June 9, 2020, and numbered 2018/9-116 E. and 2020/279 K.K., the defendant, by employing Afghan migrants who illegally entered Turkey, had no residence or work permits, did not intend to go to another country, and expressed their desire to permanently stay in our country, and by facilitating their illegal stay in the country and helping them move from one place to another within the country through construction work, benefiting directly and indirectly from advantages such as avoiding insurance and tax obligations regarding the employed migrants, avoiding potential compensation payments by unlawfully terminating their employment, and preventing them from asserting their rights due to the fear of deportation, all the elements of the offense of human trafficking under Article 79(a) of the Turkish Penal Code were deemed to be established.
QUALIFYING CIRCUMSTANCES: The second and third paragraphs of Article 79 of the Turkish Penal Code list the qualifying circumstances of the crime of human trafficking. The following circumstances result in an increased penalty for human trafficking:
- Constituting a danger to the lives of migrants
- Committing the crime of human trafficking by subjecting migrants to degrading treatment
- Committing the crime in cooperation with multiple individuals
- Committing the crime within the framework of an organization’s activities
The competent court for the crime of human trafficking is the Criminal Court of First Instance, as regulated by Law No. 5235 on the Establishment, Duties, and Powers of First Instance Courts and Regional Courts of Justice.
In our office located in the İzmit district of Kocaeli province, we provide consultancy and legal representation services in the field of the crime of human trafficking, as well as in various criminal cases, with the assistance of specialized criminal lawyers.