Crimes of Forgery of Official Documents and Migrant Smuggling
1. Introduction
Migrant smuggling is often forged documents . Forgeries, particularly those made to passports, visas, residence permits, or work permits, constitute crimes under both Article 79 (Migrant Smuggling) and Article 204 (Forgery of Official Documents) of the Turkish Penal Code . Therefore, these two types of crimes are frequently discussed together in practice.
2. Legal Framework
2.1. Migrant Smuggling (Turkish Penal Code Article 79)
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foreigners into the country illegally,
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Allowing them to stay in the country,
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The expulsion of Turkish citizens or foreigners from the country.
➡ Financial gain is sought as the motive.
2.2. Forgery of Official Documents (Turkish Penal Code Article 204)
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Committing forgery on a document that a public official is authorized to prepare,
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Altering a genuine document in a way that deceives others,
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Using a forged official document.
3. The Intersection of Two Crimes
3.1. The Role of Forged Documents in Migrant Smuggling
The most common methods used to transport migrants illegally are:
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Fake passport,
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Fake visa,
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Fake residence permits,
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fake employment documents.
3.2. Concurrence of Crimes
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a perpetrator commits both of migrant smuggling and of forgery of official documents , they are punished separately for each crime.
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Because these crimes protect different legal values:
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Migrant smuggling → human dignity, state migration policy
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Forgery of official documents → public trust
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➡ In this case , actual concurrence of offenses applies , not ideal concurrence (Turkish Penal Code Article 44)
4. Supreme Court Decisions
4.1. Supreme Court 18th Criminal Chamber, 2015/49 K.
In the case where the defendants attempted to smuggle immigrants out of the country by issuing fake passports, the Supreme Court stated that both Article 79 and Article 204of the Turkish Penal Code should be applied.
4.2. Supreme Court 9th Criminal Chamber, Case No. 2014/4908.
The forged visas seized from the migrants were accepted as evidence in proving migrant smuggling, and the defendants were also convicted of forgery of official documents.
4.3. Supreme Court of Appeals, Grand Chamber, Case No. 2012/10-1300, Decision No. 2013/248.
the use of forged documents alone would not be sufficient for migrant smuggling, but if combined with acts aimed at transporting migrants for profit, the two crimes would be applied together.
5. Evidence
5.1. Forged Documents
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Changes to the photo on the passport,
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Visa fraud,
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Falsification of identity card photocopies.
5.2. Electronic Evidence
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Computer records showing the printing of forged documents,
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Printer output traces,
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Email or WhatsApp conversations.
5.3. Witness and Immigrant Statements
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The immigrants' statements regarding who they obtained the fake documents from,
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Law enforcement reports.
6. International Law Dimension
6.1. Palermo Convention
The Palermo Protocol on migrant smuggling considers the use of forged documents as part of the crime
6.2. European Union Practice
EU countries generally treat migrant smuggling and fraud as a combined offense and impose harsher penalties.
7. Concrete Scenario (Original Example)
Event:
The defendant, HK, attempted to smuggle 10 migrants from Türkiye to Greece using fake passports. He charged each migrant 3,000 Euros. He was apprehended in a police operation.
Legal Assessment:
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Since money is taken from migrants, Article 79 of the Turkish Penal Code (migrant smuggling) .
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Since a fake passport was issued, the offense also under Article 204 of the Turkish Penal Code (forgery of official documents) .
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The defendant shall be punished separately for each of the two offenses.
8. Conclusion
The crimes of migrant smuggling and forgery of official documents are often committed together.
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Migrant smuggling → human dignity and migration policy security,
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Forgery of official documents → public trust and
protected legal values.
Therefore, if both crimes are committed with a single act by the perpetrator, the rule of real concurrence of crimes applies, and the perpetrator is punished independently for both crimes.
Supreme Court of Appeals, 21st Criminal Chamber – Decision: 2016/7457 Review
1. Summary of the Event
The case file reveals that the defendants prepared fake passports and visas for foreign migrants with the aim of taking them to European countries , extorted money from the migrants, and attempted to smuggle them out of the country via airports
The migrants were caught while attempting to leave the country with forged documents, and the defendants were charged under both Article 79 (Migrant Smuggling) and Article 204 (Forgery of Official Documents) of the Turkish Penal Code
2. Local Court Decision
The local court ruled that the defendants, in a single act, forged and used false documents and attempted to smuggle migrants out of the country
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Conviction for migrant smuggling,
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also
handed down a conviction for forgery of official documents.
The defendants argued that their actions were "relative assistance" and that "there was no motive for personal gain.".
3. Review by the 21st Criminal Chamber of the Court of Cassation
3.1. In Terms of Migrant Smuggling
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It is a known fact that a fee is charged per person from immigrants .
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of migrants with illegal documentshas been deemed an act constituting the crime of migrant smuggling.
➡ The Supreme Court has ruled that all elements of Article 79 of the Turkish Penal Code have been met.
3.2. Regarding Forgery of Official Documents
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The passports and visas were forged.
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The use of these documents constitutes a separate crime under Article 204 of the Turkish Penal Code . ➡ The Supreme Court has emphasized that this crime is not subsumed within migrant smuggling, but rather protects a separate legal value (public trust).
3.3. Discussion of the Assembly
The defendants' lawyers argued, "There is only one act; they should only be punished for migrant smuggling.".
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The Supreme Court the principle of concurrent offenses (Turkish Penal Code Article 44) cannot be applied because the two separate types of offenses protect two separate legal values.
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Therefore, the court decided that the defendants should be punished separately under both Article 79 and Article 204 of the Turkish Penal Code
3.4. Enterprise
The migrants were apprehended at the airport, so no actual departure from the country occurred.
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The Supreme Court stated that the migrant smuggling remained at the attempted stage and emphasized that a reduction in sentence should be applied in accordance with Article 35 of the Turkish Penal Code.
4. Significance of the Decision
a) Independence of the Two Crimes
With this decision, the Supreme Court that the crimes of forgery of official documents and migrant smuggling do not coincide, and that the perpetrator will be punished independently for both crimes.
b) Distinction Between Attempt and Completion
Even if the migrants do not actually leave the country, initiating the necessary procedures (such as bringing them into the airport with forged documents) is sufficient to constitute an attempted extortion.
c) Rejection of the Family Defense
The fact that the defendant had family ties to the immigrants was not taken into consideration, as it does not negate the reality of the organization being run for financial gain
d) International Dimension
The decision, in line with the Palermo Protocol , considered the use of forged documents as a typical method of migrant smuggling
5. Conclusion
The 21st Criminal Chamber of the Court of Cassation – Decision: 2016/7457– reinforced the following principles:
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Migrant smuggling and forgery of official documents are independent crimes, and the perpetrators are punished separately.
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The crime of migrant smuggling even if the border is not actually crossed, at the attempt stage .
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Family ties do not reduce the punishment unless they eliminate the element of self-interest.
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Seizure and confiscation measures (forged documents, money, vehicles) must be applied in accordance with the law.
Law Faculty Student Ada Ceren KENDİGELEN
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