Aggravating Circumstances of Migrant Smuggling Crimes

The aggravated forms of the crime of migrant smuggling are regulated in Article 79/2,3 of the Turkish Penal Code;

Turkish Penal Code No. 5237, Article 79/2,

(Additional paragraph: 22/7/2010 – Article 6 of Law No. 6008) If the crime is committed in a way that:
a) poses a danger to the lives of the victims, or
b) subjects them to humiliating treatment,
the sentence shall be increased by half to two-thirds.

Turkish Penal Code Article 79/3

(Amended: 6/12/2019-7196/56 art.) If this crime is committed jointly by more than one person , the sentence shall be increased by up to half; if it is committed within the framework of an organization's activities, the sentence shall be increased from half to one times the original sentence.

Now let's examine these situations individually.

a) Life-Threatening Conditions

migrants in means that pose a threat to their safety .

• Closed box truck trailer,

• Overcrowded boats/boats,

• Airless vehicles.

•  The Supreme Court acknowledges that such methods seriously endanger the victims' right to life.

b) Conditions that are dangerous to human dignity

Transporting migrants under degrading and inhumane conditions constitutes an aggravated offense

• They are deprived of air, water, and food,

• Being forced to travel in overcrowded environments,

• They were subjected to forced ill-treatment.

• The 18th Criminal Chamber of the Supreme Court of Appeals, in its decision numbered 2016/13955 E., 2018/7483 K., considered leaving migrants suffocated in a closed truck bed as an aggravated offense.

c) Processing within the Framework of Organizational Activities

If the crime is committed as part of an organized crime group's activities :

• The penalty is increased by half.

• In addition, the perpetrator will also be punished under Article 220 of the Turkish Penal Code (establishing/membership of an organization)

• The 18th Criminal Chamber of the Supreme Court of Appeals clearly stated this point in its decision numbered 2017/4358 E., 2019/2211 K.

  3. Increased Penalty

  According to Article 79/2 of the Turkish Penal Code:

  • If any of these aggravating circumstances occur, the penalty will be increased by half.

  • For example: If the basic sentence is 5 years imprisonment, this sentence can be increased to 7 years and 6 months in aggravated circumstances.

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  4. Examples from Supreme Court Decisions

  • Supreme Court 18th Criminal Chamber, Case No. 2016/13955, Decision No. 2018/7483:
    Transporting migrants in a closed-box vehicle → endangering life → aggravated offense.

  • The 18th Criminal Chamber of the Supreme Court of Appeals, Case No. 2014/2439, Decision No. 2015/2940, ruled
    that a crime does not occur without material benefit, but if there is benefit, it results in a serious criminal offense.

  • The 18th Criminal Chamber of the Supreme Court of Appeals, Case No. 2017/4358, Decision No. 2019/2211, ruled
    that organized migrant smuggling applies to both Article 79 and Article 220 of the Turkish Penal Code.

Conclusion

The aggravated forms of the crime of migrant smuggling are as follows:

1. Processing with dangerous tools,

2. Inhuman, degrading conditions,

3. Committed within the framework of organizational activity.

These circumstances increase the penalty by half , leading to harsher sanctions for the perpetrators

                                                                                                                                                           Law Faculty Student Ada Ceren KENDİGELEN