Migrant Smuggling and Human Trafficking Crimes

Trafficking in migrants and human trafficking are considered crimes under both national and international law. These crimes are also regulated in Articles 79 and 80 of the Turkish Penal Code.

According to 2021 data from the Turkish Statistical Institute, 429,752 people migrated due to better housing and living conditions. This number is increasing today. Along with this increase, the crime of migrant smuggling has also increased.

According to Akbaş, the concept of illegal immigration is divided into three categories:

• Entering the country illegally despite not being a citizen
• Attempting to enter the country with forged documents
• Entering the country legally but failing to leave after the visa has expired, thus breaking the law.

Illegal immigration means the unlawful entry or exit of individuals or groups of individuals from their places of origin to places different from their places of origin, either permanently or temporarily, for educational, health, economic, environmental, or social reasons, or their continued stay in a country after the legally permitted period of stay has expired.

Reasons for migrant smuggling:

• Economic reasons are among the primary causes of human trafficking. Citizens desire a more comfortable lifestyle. Economic hardship leads to people being deceived, consequently increasing trafficking activities.
• Another reason for the increase in crime is that smugglers take money from people with the promise of taking them to another country.
• Policies in some European countries that encourage political asylum and illegal immigration, and financial aid given to refugees
• There are differences in economic and social living standards between countries
• Internal conflicts in foreign countries

Definition of human trafficking:

According to the Turkish Language Association's glossary, "human trafficking" is defined as "the procurement, transportation, transfer, sheltering, or receipt of individuals for exploitative purposes through coercion, abduction, deception, abuse of influence, exploitation of a person's helplessness, or by providing gain or benefit to a person or others in order to obtain their consent through force or threat of force.".

Types of human trafficking:

• The majority of human trafficking victims women . Some women are forced into prostitution or other sectors, and their earnings are confiscated. Those with debts are given hope of work with the promise of paying off their debts, but are subsequently threatened, pressured, and forced to work.
• The buying and selling of children under the age of 18, or the exploitation of their bodies or services, of child trafficking . This crime occurs through kidnapping or sale. Children are used for purposes such as sexual exploitation, pornography, forced labor, and organ transplantation.
• Forced labor/slavery refers to the practice of extracting information from people by force, making them do what the authorities want, and burdening them with heavy debt
• Organ trafficking , defined as a separate crime in the Turkish Penal Code , is also a type of human trafficking.

Reasons for human trafficking:

• People migrate to other countries seeking better living conditions, improved quality of life, and greater wealth. Human traffickers exploit this situation, thus contributing to the occurrence of this crime.
• One of the causes of crime is that some government officials become corrupt and assist criminals.
• Sexual discrimination against citizens within the country's borders is also a bargaining chip held by human traffickers.
• War and natural disasters, or violence against women, are also cited as reasons for human trafficking.

The difference between migrant smuggling and human trafficking:

• The 1951 Convention Relating to the Status of Refugees defines a refugee as "a person who, owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, has left his country and is unable or unwilling to return." Due to their circumstances, refugees often become a source of migrant smuggling and human trafficking.
• While migrant smuggling undermines public order and the state, human trafficking violates the human rights of individuals.
• While migrant smuggling does not involve the use of physical or psychological force against the abducted individuals, in human trafficking, the victim is taken against their will.
• In human trafficking, the victim is not necessarily transported from one place to another, whereas in migrant smuggling, the victim must be transported to a specific location. These and many other similar differences can exist.

According to the Turkish Penal Code, migrant smuggling and human trafficking

The crime of migrant smuggling is regulated in Article 79 of the law. According to this article, it is defined as "transporting people into the world through illegal means, directly or indirectly for the purpose of obtaining material gain."

• bringing someone into a foreign country or enabling them to stay in the country
• Anyone who enables a Turkish citizen or a foreigner to leave the country with imprisonment from five to eight years and a judicial fine from one thousand to ten thousand days . Even if the crime remains at the attempt stage, the punishment shall be as if it were completed .

The second paragraph of the same article deals with aggravating circumstances for the punishment of the crime. It states the following:

• If the crime poses a threat to the victims' lives or is committed through humiliating conduct, the penalty shall be increased by half to two-thirds.
• If the crime is committed by more than one person, the penalty may be increased by up to half.
• If the crime is committed within the framework of an organized crime activity, the penalty is increased by half to one-fold.

The provisions regarding security measures for legal entities are reserved in paragraph 4.

The crime of human trafficking is regulated in Article 80 of the law, which states the following:

• “Anyone who, with the aim of forcing someone to work, serve, engage in prostitution, or be subjected to slavery, or to obtain the delivery of body organs, uses threats, coercion, force, or violence, abuses influence, deceives, or exploits the power of control or the helplessness of individuals to obtain their consent, thereby bringing them into or out of the country, supplying, abducting, transporting, or harboring them, shall be sentenced to imprisonment for eight to twelve years and a judicial fine of up to ten thousand days.”
• According to the second paragraph of the same article, the victim's consent is invalidated as long as the circumstances constituting the crime exist.
• According to the third paragraph of the same article, if the crime is committed against persons under the age of eighteen for the purpose stated in the first paragraph, the perpetrator shall be subject to the penalties specified in the first paragraph even if none of the means of committing the crime have been used.
• The provisions regarding security measures for legal entities are reserved in paragraph 4.

• In cases of migrant smuggling, the appropriate court to hear the case is the Criminal Court of First Instance due to the maximum penalty for the crime
• In cases of human trafficking, jurisdiction to try the crime lies with the High Criminal Court