Evidence in the Crime of Employing Migrant Workers and Migrant Smuggling

Turkey is an important stopover point for foreign migrant workers , both as a transit country and as an attractive labor market . This situation gives rise to two different legal problems:

Employing migrant workers is a violation of the Labor Law No. 4857 , the International Workforce Law No. 6735 , and the Law on Foreigners and International Protection No. 6458
Migrant smuggling (Turkish Penal Code Article 79) → Bringing foreigners into the country illegally or facilitating their illegal stay in the country.

In both cases evidenceconstitutes the most critical element of the trial, because the housing, employment, or illegal presence of migrant workers often takes place secretly.

1. The Crime of Employing Migrant Workers and Evidence

1.1. Legal Framework

Turkish Labor Law No. 4857, Article 71 and subsequent articles: It is prohibited to employ foreigners without a work permit.
Law No. 6735 on International Workforce: It stipulates administrative fines for employers who employ foreign workers without work permits.
Law No. 6458 on Foreigners: It is prohibited to employ foreigners without a residence permit.

1.2. Evidence

Evidence in cases involving the act of employing migrant workers typically includes the following:

Photographic and video recordings showing a foreigner working at a workplace without a work permit .
Workplace records (payroll, social security registration documents),
Witness statements (neighbors, workplace employees),
Police and inspector reports (inspection records).

2. The Crime of Migrant Smuggling and Evidence

2.1. Legal Framework – Turkish Penal Code Article 79

Migrant smuggling of bringing foreigners into a country, enabling them to stay there, or taking them out of the country. A financial gain is a key element in this process.

2.2. Types of Evidence

The evidence in migrant smuggling cases is very diverse:

Migrants' statements: These show how the event occurred and who helped them.
Vehicles of transportation: Seizing vehicles such as minibuses, trucks, and boats.
Fake documents: Passport, visa, ID card.
Phone records: Communication between the perpetrator and the immigrant reveals the organization.
Evidence of money: Cash or bank transfers received from immigrants.

3. Common Point: Evidence Evaluation

3.1. Legally Obligatory Evidence

According to Articles 206 and 217 of the Code of Criminal Procedure, evidence obtained illegally cannot be used as the basis for a judgment.

For example: Evidence obtained as a result of a search conducted in violation of the sanctity of the home invalid.

3.2. Proof of Material Benefit

In cases involving the employment of migrant workers and migrant smuggling, proving the element of interest is the most critical point.

If there is an allegation that immigrants are being employed without pay in a workplace, no crime may be committed.
However, if payment, accommodation, or other benefits are proven with evidence, the crime is considered proven.

4. Court of Cassation Practices

4.1. Supreme Court 18th Criminal Chamber, Case No. 2015/3863.

The fact that immigrants were housed in a home and employed in a workplace was accepted as evidence; the employer's defense of "assistance" was rejected.

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

Money taken from immigrants, fake passports, and telephone call records were considered as evidence.

4.3. Supreme Court of Appeals, Grand Chamber, Case No. 2012/10-1300, Decision No. 2013/248.

that evidence obtained through an illegal search unlawful and cannot be used as the basis for a judgment.

5. The Relationship Between Seizure and Evidence

5.1. CMK Articles 123–127

Tools that could be used as evidence of a crime may be seized.

The warehouse where migrant workers stayed, the houses where they lived,
Vehicles used in migrant smuggling,
Fake passports and cash.

5.2. Confiscation

At the end of the trial, a decision is made to confiscate the tools used in the crime and the proceeds obtained from the crime, in accordance with Articles 54-55 of the Turkish Penal Code .

6. Problems in Implementation

Reliability of immigrants' statements: They often give incomplete statements due to fear or language barriers.
Proof of the employer's interest: Sometimes the employer claims to be unaware of the presence of the immigrants.
Legality of evidence: Procedurally flawed search warrants can lead to the dismissal of cases.

7. Concrete Scenario

Event:

A tip-off revealed that 12 foreign migrant workers were employed at a textile workshop in Istanbul. During a police raid, it was discovered that the migrants did not have work permits, were working without insurance, and were living in poor conditions. Bank accounts showed that the employer regularly collected rent and food payments from the migrants.

Legal Assessment:

Violation of Labor Law: Employing foreign workers without work permits → administrative fine.
Migrant smuggling (Turkish Penal Code Article 79): Harboring and employing in exchange for benefit → constitutes a crime.
Evidence: Witness statements, police reports, bank records → sufficient to prove the crime.

8. Conclusion

In cases involving the employment of migrant workers and migrant smuggling the evidencedetermines the outcome of the trial.

Employing migrant workers → administrative sanctions and fines.
Migrant smuggling → Imprisonment of 3 to 8 years and a fine.

The lawful acquisition of evidence, the clear proof of a material interest, and the reliability of the immigrants' statements are the most critical issues in these cases. Supreme Court precedents also demonstrate the need for meticulous evaluation of evidence in these trials.

Supreme Court 9th Criminal Chamber – Decision: 2014/7524 Review

1. Subject of the Decision

The case file reveals that the defendants organized a scheme to illegally smuggle foreign nationals out of the country, provided vehicles and accommodation, and profited from the migrants. The migrants were apprehended during the law enforcement operation before they could cross the border.

The local court convicted the defendants under Article 79 of the Turkish Penal Code (migrant smuggling) and also sentenced them under Article 220 (forming an organization/membership in an organization) . The case was appealed to the 9th Criminal Chamber of the Court of Cassation.

2. The Court of Cassation's Assessment

2.1. Enterprise

The defendants transported migrants to the border in vehicles, provided them with accommodation, and prepared forged documents. However, the migrants were unable to cross the border due to a law enforcement operation.

The Supreme Court has ruled that in this case, the crime remained at the attempted stage
The court emphasized that, in accordance with Article 35 of the Turkish Penal Code, the sentence should be reduced by between one-quarter and three-quarters.

2.2. Organized Crime Connection

The defendants a division of labor :

Some of them gathered the migrants,
Others provided forged documents,
Others organized the border crossing.

The Supreme Court has accepted that this structure constitutes organized crime and has stated that the defendants should also be punished under Article 220 of the Turkish Penal Code .

2.3. Qualified State

that migrants were transported in overcrowded and unsanitary conditions, a threat to 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

2.4. Evaluation of Evidence

Statements taken from migrants,
The seized fake passports,
Telephone call records between the defendants,
The vehicle and cash seized in the police raid…

The Supreme Court emphasized that this evidence was obtained lawfully and was sufficient for conviction.

3. Outcome of the Decision

The 9th Criminal Chamber of the Court of Cassation, citing the local court's deficiencies in its procedures, reached the following conclusions:

the crime remained at the attempted stage, the sentence should have been reduced.
Since the actions were committed within the scope of organized crime, Article 220 of the Turkish Penal Code should also have been applied.
due to the conditions that endangered the lives and dignity of the migrants .
Seizure and confiscation orders had to be justified.

The local court's decision has been overturned.

4. Significance of the Decision

a) From the Perspective of the Enterprise

The crime of migrant smuggling occurs when the preparatory actions begin, even if the border is not actually crossed . This decision has clarified the distinction between "preparation" and "execution."

b) In terms of Organized Crime

When multiple perpetrators share tasks, it elevates migrant smuggling organized crime . In this case, the defendants are punished under both Article 79 and Article 220 of the Turkish Penal Code.

c) In terms of Qualified Circumstances

Transporting migrants in poor conditions warrants a harsher penalty. This decision places special emphasis on the protection of human dignity and the right to life

d) From the Perspective of Evidence Law

Immigrant statements, forged documents, vehicles, and financial records have been accepted as evidence. This demonstrates how the standard of proof is determined in practice

5. Conclusion

The Supreme Court's 9th Criminal Chamber – Decision: 2014/7524is a landmark decision that sets forth the following three fundamental points regarding the crime of migrant smuggling:

Even an attempted crime constitutes a crime, but the penalty is reduced.
If the crime was committed within the scope of organized crime, liability also arises under Article 220 of the Turkish Penal Code.
The aggravating circumstances provision applies if the conditions endanger the lives and dignity of migrants.

In these respects, the decision serves as a guideline for local courts and a strong reference for practitioners.

Evidence in Migrant Smuggling Crimes – In Light of the Supreme Court's 9th Criminal Chamber Decision No. 2014/7524

1. The Importance of Evidence

Migrant smuggling is a crime that is usually carried out secretly and has an organized dimension. Therefore, the reliability of evidence is critically important in proving it. In the Supreme Court's 9th Criminal Chamber's decision numbered 2014/7524, the evaluation of evidence is a central point of discussion.

2. Types of Evidence in the Decision

2.1. Declarations of Migrants

The statements of the captured migrants revealed who was running the organization.
The Supreme Court emphasized that immigrant testimonies alone are not sufficient evidenceand must be considered in conjunction with other evidence.

2.2. Forged Documents

The fake passports, visas, and IDs seized from the immigrants have been included in the file.
These documents have been accepted as concrete evidence showing that the criminal acts have begun.

2.3. Telephone Records

The communication traffic between the defendants (HTS records, messages) revealed the organizational structure.
The Supreme Court has accepted electronic communication records as strong evidence

2.4. Tools and Physical Evidence

The van carrying the migrants and the seized items (life jackets, food, fuel canisters) were considered evidence.
These vehicles were seized pursuant to Articles 123-127 of the Code of Criminal Procedure, and a confiscation discussion took place.

2.5. Evidence of Material Benefit

The money taken from the immigrants, the defendants' bank accounts, and the cash seizures the element of profit involved.

3. Emphasis on Legally Obtained Evidence

The 9th Criminal Chamber of the Supreme Court of Appeals explicitly stated the following in this decision:

Evidence obtained in violation of the Code of Criminal Procedure cannot be used as the basis for a judgment.
It was particularly emphasized that search warrants must be approved by a judge and that telephone records must be obtained in accordance with proper procedures.

4. The Court of Cassation's Conclusions in Terms of Evidence

Immigration statements alone are not sufficient; supporting evidence is needed.
Forged documents and vehicles criminal activity .
Phone records and cash transactions prove the existence of an organized structure and vested interests
Evidence obtained illegally cannot be used as grounds for conviction.

5. Evaluation

The Supreme Court's 9th Criminal Chamber's decision numbered 2014/7524established guiding principles for evaluating evidence in migrant smuggling cases:

A variety of evidence should be provided
The element of self-interest must be proven
Seizure and confiscation measures must be applied correctly
Evidence in accordance with the Code of Criminal Procedure .

Law Faculty Student Ada Ceren KENDİGELEN

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