What is the Crime of Migrant Smuggling?
The crime of migrant smuggling, regulated under Article 79 of the Turkish Penal Code, involves bringing a foreigner into the country through illegal means or enabling them to stay in the country for financial gain, or facilitating the exit of a Turkish citizen or foreigner from the country. A person convicted of this crime is subject to imprisonment of five to eight years and a judicial fine ranging from 1,000 to 10,000 days.
What Constitutes Financial Gain in Migrant Smuggling?
For the crime of migrant smuggling to be established, "financial gain" is a prerequisite. In other words, this type of crime can only be committed with specific intent. If the perpetrator has no intention of obtaining financial gain, the crime cannot be established. Such gain may be direct or indirect. The person benefiting may be the direct perpetrator or a third party influenced by the perpetrator.
Even if no financial gain has been obtained, an agreement between the victim and the perpetrator regarding financial gain is deemed sufficient. For instance, if a person agrees to smuggle a foreigner out of the country for a certain amount of money but has not yet received the payment, the financial gain is considered achieved.
Attempting the Crime of Migrant Smuggling
According to the last sentence of the first paragraph of Article 79, even if the crime remains in the attempt stage, it is punished as if it were completed. The attempt does not serve as a mitigating factor. For example, if a person picks up an individual in Istanbul intending to take them to Bodrum and then abroad but is caught during the road journey, they are punished as though the smuggling was completed. However, as stated in the Supreme Court of Appeals (4th Criminal Chamber Decision No. 2021/25284 E., 2022/20331 K., dated October 19, 2024), no penalty is imposed if the acts are mere preparatory actions not reaching the level of an attempt. For example, if a perpetrator is found inflating a boat by the shore while waiting for migrants who are not yet on site, no penalty is imposed (Supreme Court of Appeals 18th Criminal Chamber Decision No. 2020/970 E., 2020/7492 K., dated June 16, 2020).
Aggravated Forms of Migrant Smuggling
Pursuant to Article 79/2, if the crime endangers the victims’ lives or subjects them to degrading treatment, the sentence is increased. In such cases, the penalty may be enhanced by one-half to two-thirds.
According to Article 79/3, committing the crime jointly by multiple individuals or as part of an organization’s activities leads to a sentence increase. If the crime is committed by multiple individuals, the penalty is increased by up to half; if committed as part of organizational activities, it is increased by half to double.
Article 79/4 stipulates that if the crime is committed within the scope of a legal entity’s activities, specific security measures applicable to legal entities are imposed.
Issues of Complaint, Statute of Limitations, Reconciliation, Effective Remorse, Deferred Announcement of Judgment, Postponement, and Judicial Fine Conversion in Migrant Smuggling
The crime of migrant smuggling is not subject to complaint. The statute of limitations is 15 years, during which the crime must be investigated by competent authorities, and if the crime is proven, the sentence must be finalized by the court. As the victim is considered the public, reconciliation is not applicable. Similarly, the law does not include provisions for effective remorse.
No deferred announcement of judgment is allowed for this crime. Likewise, the sentence cannot be postponed or converted into a judicial fine.
The prosecution of the crime of migrant smuggling falls under the jurisdiction of criminal courts of first instance.
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