HUMAN TRAFFICKING CRIME (TURKISH PENAL CODE ARTICLE 80)
What is the crime of human trafficking?
Human traffickingis not only a crime punishable by severe penalties under criminal law, but it is also among the most serious acts against human dignity, bodily integrity, personal freedom, and fundamental human rights. For this reason, the Turkish Penal Code, Article 80, addresses the crime of human trafficking with separate and severe penalties. According to the text of the article, the crime is defined as the bringing into or taking out of the country, supplying, kidnapping, transporting, shipping, or harboring of individuals through specific methods for the purpose of forced labor, service, prostitution, enslavement, or organ donation.
This type of crime is often perceived narrowly in public opinion, associating it only with border crossings, foreign victims, or organized crime structures. However, the crime of human trafficking is not limited to international crossings. If a person is drawn into an exploitative relationship through coercion, threats, violence, deception, abuse of influence, or exploitation of their helplessness, a much more severe assessment can be made under Article 80 of the Turkish Penal Code, depending on the nature of the incident. Therefore, it is necessary to correctly define the crime and clearly establish the line that distinguishes it from migrant smuggling, prostitution, or the crime of depriving a person of their liberty.
the crime of human trafficking is that the apparent consent of the victim is not always legally valid. Legislators acknowledge that consent alone does not provide real protection, especially in the face of methods such as coercion, threats, force, deception, and exploitation of helplessness. More importantly, the scope of protection is even broader when the victim is a child. In this respect, the crime of human trafficking cannot be considered as ordinary transportation, mediation, or a voluntary relationship. The exploitative motive behind the specific case, the victim's vulnerability, and the methods used by the perpetrator must be examined together.
Human trafficking
Article 80 - (1) Anyone who brings into the country, takes out of the country, supplies, abducts, transports or carries or harbors persons by using threats, pressure, coercion or violence, abuse of influence, deception or by taking advantage of their control over persons or their helplessness, with the aim of forcing them to work, serve, engage in prostitution or be subjected to slavery or to have their body organs given, shall be sentenced to imprisonment from eight to twelve years and a judicial fine of up to ten thousand days.
(2) If there are acts committed for the purposes stated in the first paragraph and constituting a crime, the victim's consent is invalid.
(3) If persons under the age of eighteen are procured, abducted, transported from one place to another, or sheltered for the purposes specified in the first paragraph, the perpetrator shall be given the penalties specified in the first paragraph, even if none of the means of committing the crime have been used.
(4) Security measures are also imposed on legal entities for these crimes.
Consent of the Victim in Human Trafficking Crimes
the crime of human trafficking is the extent to which the victim's declared consent carries legal weight. The Turkish Penal Code has made a clear choice on this matter. Article 80/2 of the TCK , if the acts constituting the crime are committed for the purposes specified in the first paragraph, the victim's consent is invalid. This provision shows that the crime of human trafficking is not viewed as a simple matter of consent. The legislator acknowledges that in relationships established for exploitative purposes and supported by specific means and actions, apparent consent does not provide real legal protection.
In human trafficking crimes, the perpetrator often does not establish an equal relationship with the victim. On the contrary, they use methods such as threats, coercion, force, violence, deception, abuse of influence, or exploiting the victim's helplessness to draw them into a system of exploitation. The text of the law explicitly lists these methods. In such a case, the victim's consent is not considered the product of free and independent will. Even if consent appears to exist from the outside, it is not considered valid from a criminal law perspective. This is because consent arises within the system of coercion and exploitation established by the perpetrator.
Elements of the Crime of Human Trafficking
1-Material Element
1.1) Fail
Article 80 of the Turkish Penal Code does not require any specific characteristics for the perpetrator of this crime; the perpetrator can be anyone.
The penalty for a public official or a public employee who uses public property or equipment in the commission of a crime shall be increased.
The legislation also stipulates that security measures may be applied to legal entities as well.
1.2) Victim
Under Article 80 of the Turkish Penal Code, individuals who are brought into the country through threats, coercion, force, abuse of influence, deception, or by exploiting their vulnerability or helplessness, with the aim of forcing them to work, serve, engage in prostitution, be subjected to slavery, or provide their body organs, are considered victims.
Article 80/3 of the Turkish Penal Code states that if a person under the age of eighteen is procured, abducted, transported, or harbored for the purposes specified 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. This addresses the situation where the victim is under 18 years of age. Furthermore, the second paragraph states that the crime is committed even if the victim consented.
1.3) Subject of the Crime
In the crime defined in Article 80 of the Turkish Penal Code, since the perpetrator's act is directed at the victim's physical and mental well-being, the material subject of the crime is the victim themselves, their body.
1.4) Movement
The acts constituting the material elements of the crime of human trafficking are divided into two groups: primary acts and instrumental acts.
Article 80, paragraph 1, which regulates the crime of human trafficking, stipulates that this crime is committed by performing the instrumental acts listed as "threats, coercion, force or violence, abuse of influence, deception, or obtaining consent by exploiting the control or helplessness of individuals" and the principal acts listed as "bringing into or taking out of the country, supplying, kidnapping, transporting or sending from one place to another, harboring." However, according to paragraph 3 of the same article, if the victim is under eighteen years of age, the crime will be constituted by the perpetrator's performance of the principal act, regardless of whether the instrumental acts have been performed.
As clearly understood from the text of the law, this crime is a highly dynamic and alternative-action crime because the legal subject matter of the crime can be violated in various ways. At least one instrument and the actual act must be performed for the crime to be committed.
As mentioned above, in the third paragraph of the article, since the instrumental acts are not required when this crime is committed against victims under the age of eighteen, it can be committed as a single-act crime if the victim is under eighteen.
If the crime of human trafficking is not committed through the primary and instrumental acts listed in the legal definition of this crime, then the elements of this crime are not present; therefore, it is a crime of dependent actions.
Depending on the performance of one of the acts suitable for committing the crime, the crime may be committed with sudden or continuous action. If the crime is committed by the execution of the main acts of bringing into the country or taking out of the country, the crime is considered complete with the performance of the act, and it can be said to be a crime with sudden action. However, for the acts of supplying, transporting or sending from one place to another, harboring, or smuggling, it will be a crime with continuous action.
2) Spiritual Element
Human trafficking is a crime that can only be committed intentionally. For the crime to occur, the perpetrator must knowingly and willingly perform the actions specified in the article. Therefore, this crime cannot be committed negligently.
General intent is not sufficient for the crime of human trafficking to occur. Specific intent on the part of the perpetrator is required. The motive of the perpetrator must be to force individuals to work, to perform forced services, to be subjected to slavery or similar practices, or to harvest their body organs. Since specific intent is required for the crime to occur, it is not possible to commit this crime with probable intent.
3) Illegality
For a crime to occur, the act must be unlawful. If there is a justification for legality, the unlawfulness of the act is eliminated
Differences Between the Crime of Human Trafficking and the Crime of Migrant Smuggling
While the crimes of migrant smuggling and human trafficking share some similarities, there are also differences between them. In migrant smuggling, the material subject of the crime is the transfer of the victim from one country to another based on their consent. However, in human trafficking, physical or psychological coercion is used against the victim, or their will is compromised in some way.
Migrant smuggling is necessarily a transnational crime. Human trafficking, on the other hand, can occur within the borders of the same country. In contrast, the crime of migrant smuggling is completed simply by transporting the victim from one country to another, through the act of crossing borders.
SPECIAL PROVISIONS AND AGGRAVATING CIRCUMSTANCES OF THE CRIME
Victims Under 18 (Child Trafficking) and the Absolute Invalidity of Consent (Turkish Penal Code Article 80/3)
Aggravating Circumstances
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The crime was committed by a public official.
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The perpetrator is either in a position of responsibility to care for the victim or has abused a relationship of trust.
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The crime was committed in an organized manner.
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The crime was committed using force, threat, or deception.
The existence of these aggravating circumstances necessitates raising the lower and upper limits of the basic penalty, leading to a harsher punishment for the perpetrator.
Security Measures Regarding Legal Entities
Reconciliation in Human Trafficking Crimes
The institution of conciliation is regulated in Articles 253 et seq. of the Code of Criminal Procedure. According to this norm, if the crime under investigation is subject to conciliation and there is sufficient suspicion to initiate a public prosecution, the file is sent to the conciliation office.
The crimes for which reconciliation is possible are regulated in Article 253/1 of the Code of Criminal Procedure. The crime in question is not among those for which reconciliation is possible.
Effective Repentance in Human Trafficking Crimes
Effective repentance is when the perpetrator sincerely regrets the crime committed afterwards, in accordance with the conditions required by the relevant norm.
In cases of effective repentance, a reduction in the perpetrator's sentence is considered. To benefit from this provision, there must be a specific provision for effective repentance for the relevant crime.
There is no provision for effective repentance for the crime of human trafficking.
Court with jurisdiction over human trafficking crimes
When determining the jurisdiction of courts, the maximum penalty is taken into account. Crimes punishable by more than ten years of imprisonment are prosecuted by high criminal courts.
The maximum sentence for the crime of human trafficking is twelve years. Therefore, the court responsible for prosecuting this crime is the high criminal court.
Supreme Court Decisions Regarding the Crime of Human Trafficking
Verdict 1: Exploiting Desperation and Trafficking in Human Beings for Prostitution
Court of Cassation, 18th Criminal Chamber, Case No: 2016/5144, Decision No: 2018/2524
Summary of the Event
The foreign victim was in a desperate situation due to severe economic hardship, unemployment, and family responsibilities in her home country. The defendants gained her trust by promising to find her a high-paying childcare job in Türkiye, persuading her to come to Türkiye. However, after arriving in Türkiye, her passport was confiscated by the defendants. She was told she was "indebted" for travel and visa expenses, and was kept locked in a house and forced into prostitution until she paid off the debt. The local court sentenced the defendants under Article 80 of the Turkish Penal Code for "human trafficking." The defendants appealed the decision.
Supreme Court's Assessment
The Supreme Court upheld the local court's conviction for human trafficking
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Exploitation of Desperation: The victim's extreme poverty and desperation in their own country fully meets the criterion of "exploiting the helplessness of individuals," which is listed as one of the elements of the crime in Article 80 of the Turkish Penal Code
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Invalidity of Consent: The fact that the victim initially consented to come to Turkey of her own free will does not prevent the crime from being committed; because this consent was compromised by fraud and deception (false promise of employment).
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Exploitative Aim: The defendants' actions of obtaining the victim's passport, harboring her, and profiting from her through prostitution (exploiting her) demonstrate that all elements of the crime of human trafficking have been present.
Decision 2: The Fine Line Between the Crime of Prostitution and the Crime of Human Trafficking (Reversal Decision)
Court of Cassation, 18th Criminal Chamber, Case No: 2015/34125, Decision No: 2017/1296
Summary of the Event
The defendant brought a foreign woman to Türkiye and housed her in his hotel, facilitating prostitution for her with visiting clients. The victim stated in her testimony that she engaged in prostitution but gave half of her earnings to the defendant, that she was not prevented from leaving the hotel or speaking on the phone, and that she had his passport. The local court sentenced the defendant for "human trafficking.".
Supreme Court's Assessment
The Supreme Court overturned the local court's conviction for human trafficking .
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Lack of Instrumental Acts: For the crime of human trafficking to occur , instrumental acts that impair the victim's will, such as threat, coercion, force, deception, or exploitation of helplessness, must be proven in the specific circumstances of the case.
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Freedom of Movement: The crime of human trafficking does not occur if the victim's freedom of movement is not restricted, their contact with the outside world is not cut off, their passport is not confiscated, and they voluntarily consent to prostitution (for economic gain).
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Legal Outcome: The defendant's actions do not constitute human trafficking within the meaning of Article 80 of the Turkish Penal Code, but "facilitating prostitution and providing a place for prostitution" . The error in classifying the act is contrary to the law.
Decision 3: The Difference Between Migrant Smuggling and Human Trafficking
Court of Cassation, 8th Criminal Chamber, Case No: 2021/11054, Decision No: 2022/14231
Summary of the Event
The defendants were caught transporting foreign nationals who had entered Türkiye illegally and were trying to reach Europe, in the back of a van in exchange for money. Investigations revealed that the migrants had paid the defendants voluntarily to travel to Europe, and that the defendants had no intention of forcing these individuals into labor, prostitution, or organ harvesting; their sole purpose was to transport them illegally. The local court sentenced the defendants for "human trafficking.".
Supreme Court's Assessment
The Supreme Court overturned the local court's decision on the grounds that there was an error in the classification of the crime .
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Difference in Purpose (Criteria of Exploitation): In migrant smuggling (Turkish Penal Code Article 79), the primary aim is to obtain financial gain by illegally bringing a person into or out of the country; the act ends when the transport is complete. In human trafficking (Turkish Penal Code Article 80), however, the aim is not merely to transport the person across the border, but rather to subject them to labor or physical exploitation (forced labor, prostitution, organ harvesting, etc.) at their destination.
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Legal Outcome: Since there is no evidence in this specific case that the migrants were exploited, and the defendants' actions were limited to illegally transporting individuals, the crime constitutes " migrant smuggling" and not "human trafficking."
Frequently Asked Questions
Under what circumstances does the crime of human trafficking occur?
It is not necessary for the victim to be moved from one place to another. Even preparatory acts can be sufficient for the crime to occur. For example, deceiving the victim into being placed somewhere or sheltering them for the purpose of exploitation constitutes the material element of the crime. The perpetrator's aim is always to exploit the victim.
Who could be the victim of this crime?
Anyone can be a victim of this crime, regardless of age, gender, nationality, or legal status. However, vulnerable groups such as children, refugees, and migrants are more frequently victims. Consent is not required when the crime is committed against a child; mere procurement or transportation is sufficient for the crime to be completed.
Are there any specific qualifications required for the perpetrator?
The Turkish Penal Code does not impose any limitations on the perpetrator; anyone can commit the crime of human trafficking. However, if the perpetrator is a public official, a person responsible for the victim's care, or has abused a relationship of trust, the crime becomes aggravated and the penalty is increased.
Does a crime occur if the victim consents?
If the victim's consent is obtained through coercion, threat, deception, or exploitation of weakness, that consent is not legally valid. Therefore, even if the victim has given consent, the crime is still committed. In the case of children, consent is not considered valid at all.
What is the statute of limitations for prosecution in human trafficking cases?
According to Article 66/1-d of the Turkish Penal Code:
- The statute of limitations for prosecution of crimes punishable by imprisonment of more than 8 years but less than 20 years is 15 years.
Therefore, the statute of limitations for initiating public prosecution for the crime of human trafficking is 15 years . This period begins to run from the date the crime was committed. However, in some cases, circumstances may occur that interrupt or suspend the statute of limitations; in this case, the period starts running again.
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