Attempted Migrant Smuggling

Due to Turkey's geopolitical location, its position on migration routes, and its role as a border crossing to Europe, migrant smuggling is one of the most common types of organized crime in the country. Migrant smuggling, regulated under Article 79 of the Turkish Penal Code , is punishable not only upon completion but also at the attempt stage .

1. The Crime of Migrant Smuggling (Turkish Penal Code Article 79)

1.1. Definition

According to Article 79/1 of the Turkish Penal Code:

"Bringing a foreigner into the country or enabling them to stay in the country illegally, or facilitating the departure of Turkish citizens or foreigners abroad, with the direct or indirect intention of obtaining material gain" constitutes the crime of migrant smuggling.

1.2. Punishment

3 to 8 years imprisonment,
Judicial fine of up to 10,000 days.

2. The Concept of Attempt (Turkish Penal Code Article 35)

2.1. General Description

According to Article 35 of the Turkish Penal Code:

The execution was started with actions suitable for committing a crime,
Crimes that cannot be completed due to reasons beyond the owner's controlare
punishable under the category of attempted crimes.

2.2. Elements of the Enterprise

Intent: The perpetrator must have the will to commit the crime.
Execution of the crime: Steps must be taken to directly commit the crime.
Suitability: The actions must be suitable for committing the crime.
Incompleteness: The crime must not have been completed due to reasons beyond the perpetrator's control.

3. Attempted Migrant Smuggling

3.1. Example of an Executive Action

The migrants are being put into the vehicle
The preparation of fake passports,
The boat was caught before it could set sail,
Being caught at the border crossing along with migrants.

👉 These steps indicate that the commission of the crime has begun and that an attempt has been made.

3.2. Reasons for Non-Completion

The law enforcement operation,
The boat broke down,
Migrants fleeing,
Detection of forged documents.

In these cases, the crime remains at the attempted stage.

4. Penalty for Attempted Migrant Smuggling

4.1. General Rule (Turkish Penal Code Article 35/2)

In the case of attempted crime, the perpetrator is punished with the penalty for the crime they intended to commit. However:

Depending on the perpetrator's intent and the severity of the damage caused,
The sentence can be reduced by between one-quarter and three-quarters.

4.2. Application

In the case of attempted migrant smuggling:

3–8 years imprisonment,
It is eligible for a discount due to its purpose.

For example: If a defendant is sentenced to 6 years in prison, the sentence may be reduced to 3 years and 6 months due to attempted crime.

5. Supreme Court Decisions

5.1. Supreme Court 18th Criminal Chamber, Case No. 2015/4209.

The defendants put the migrants on the boat, but the coast guard intervened.
Since the crime was not completed, regarding attempted crime were applied, and the sentence was reduced.

5.2. Supreme Court 18th Criminal Chamber, Case No. 2018/3331, Decision No. 2018/14230.

The migrants were put on the vehicle but were caught before they could cross the border.
The Supreme Court ruled that "there is an attempt because the execution of the act has begun.".

5.3. Supreme Court 18th Criminal Chamber, Case No. 2016/13955, Decision No. 2018/7483.

The migrants were left in a closed vehicle without air, but the crossing did not take place.
The Supreme Court applied the provisions regarding attempted crimes and also increased the penalty due to the aggravating circumstances

6. International Law Perspective

6.1. Palermo Convention

It criminalizes migrant smuggling.
Attempting and participating in a crime are also punishable.

6.2. European Court of Human Rights (ECtHR)

Crimes related to migrant smuggling fall under the border security jurisdiction of states.
However, the ECHR emphasizes that "disproportionate punishment" should not be imposed.

7. Problems Encountered in Practice

Distinction between aiding and abetting: Although it is sometimes alleged that the defendants acted with the intention of "aiding," if there is an element of self-interest, the provisions regarding attempted aiding and abetting apply.
At what stage does the attempt begin? → According to the Supreme Court, even putting migrants into vehicles constitutes an act of execution.
Sentence reduction: Courts apply different rates of reduction for attempted crimes, leading to a problem of consistency in jurisprudence.

8. Concrete Scenario (Original Example)

Event:

In Dikili district of Izmir, a person named AY made an agreement to illegally transport 20 Syrian migrants to Greece.

Migrants are transported to the beach by minibus
They are put on the boat, but before they set sail, the gendarmerie carries out an operation
The crime cannot be completed.

Legal Assessment:

The defendant received money from the immigrants → there is an element of ulterior motive.
The operation to put migrants on the boat has begun.
Their apprehension before setting sail → the crime remained at the attempted stage.
The sentence is reduced by half in accordance with Article 35 of the Turkish Penal Code .

9. Conclusion

The crime of attempted migrant smuggling requires the simultaneous application of Articles 79 and 35 of the Turkish Penal Code.

The initiation of executive actions is sufficient to establish the existence of an undertaking.
If the crime is not completed due to reasons beyond the perpetrator's control, the provisions regarding attempted crimes apply.
The Supreme Court considers actions such as forcing migrants into vehicles or issuing fake passports as attempted crimes
The punishment is determined by reducing the penalty for the crime that was intended to be committed.

Therefore, in practice, it is of great importance for courts to correctly distinguish between preparatory and executive actionsto ensure a fair trial.

Let's examine the relevant precedent of the 18th Criminal Chamber of the Court of Cassation (Decision No: 2015/3863).

Supreme Court 18th Criminal Chamber – Decision: 2015/3863 Review

1. Subject of the Decision

The case file reveals that the defendants organized the illegal smuggling of migrants out of the country, charged them fees, and transported them to the coastal area. However, the migrants were apprehended by security forces before they could cross the border.

The local court convicted the defendants under Article 79 of the Turkish Penal Code (migrant smuggling); the case was appealed, bringing it before the Supreme Court for review

2. The Court of Cassation's Assessment

2.1. Initial Stage

The defendants had initiated actions to illegally smuggle migrants out of the country .
However, due to reasons beyond the perpetrator's control (coast guard operation), the crime could not be completed.
The Court of Cassation emphasized that Article 35 (attempt) of the Turkish Penal Code should be applied in this case .

2.2. Qualified State

It was determined that the migrants were transported in airless conditions in a minibus that was far beyond its capacity.

This means that migrants are transported in conditions that endanger their lives and dignity
The Court of Cassation has therefore stated that the aggravated circumstance in Article 79/2 of the Turkish Penal Code should be applied

2.3. The Factor of Self-Interest

It is established that the defendants charged migrants a fee per person.

The Supreme Court has once again confirmed that this element is an indispensable component of the crime of migrant smuggling

2.4. Seizure Order

The vehicle used in the incident and the money taken from the migrants were considered both as evidence and as proceeds of crime.

The Supreme Court the seizure and confiscation of these items were lawful.

3. Outcome of the Decision

The 18th Criminal Chamber of the Supreme Court of Appeals considered only the local court's application of the basic penalty as grounds for reversal .

Because neither the attempt reduction nor the qualified procedural increase was taken into account,
Furthermore, the seizure and confiscation decisions were not justified.

4. Significance of the Decision

a) From the Perspective of the Enterprise

It has been made clear once again that the crime of migrant smuggling will be punishable even in the form of an attempt

Execution action → loading migrants onto the vehicle,
An obstacle beyond the perpetrator's control → law enforcement operation.

b) In terms of Qualified Circumstances

Conditions that violate the dignity of migrants and endanger their lives warrant a harsher penalty

c) In terms of seizure

Tools → items used in the crime,
The money is proceeds of crime.
It should be confiscated and seized.

5. Conclusion

The 18th Criminal Chamber of the Court of Cassation, in its decision numbered 2015/3863, stated:

Attempting to smuggle migrants will be punished
Conditions that pose a threat to life and dignity shall be considered aggravating circumstances
The vehicle used in the crime and the money obtained should be confiscated and seized
The court emphasized that the local court's inadequate application of these principles constituted grounds for reversal.

This decision constitutes a precedent with regard to both Article 35 of the Turkish Penal Code concerning attempted offences, Article 79 concerning aggravating circumstances, and the seizure regulations in the Code of Criminal Procedure

Law Faculty Student Ada Ceren KENDİGELEN

Single Blog Title