The Crime of Migrant Smuggling

Entrance

Migrant smuggling is one of the most intense areas of criminal prosecution, particularly due to Türkiye's geographical location on "migration routes." Crossings by boat in the Aegean and Mediterranean Seas, the transportation of people to the border by trucks or minibuses, and the numerous actors involved in this organization constantly raise the question of "who is the organizer, and who is the accomplice?" in practice.

This article will examine in detail the legal responsibility of boat owners, drivers, and guides in migrant smuggling offenses under Article 79 of the Turkish Penal Code ; it will also discuss the criteria for determining in which situations these individuals are considered organizers (organizing perpetrators) , and in which situations they are accomplices or play a lower-level role.

From an SEO perspective, the main focus keyword of the article "The crime of migrant smuggling (Turkish Penal Code Article 79): Responsibility of boat owner, driver, and guide," and variations of this concept (organizer, accomplice, boat owner, captain, driver, guide, etc.) will be used systematically throughout the text.

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I. Normative Framework of the Crime of Migrant Smuggling

1. The systematic position of Article 79 of the Turkish Penal Code and the legal value it protects

The crime of migrant smuggling under the headings of "Crimes Against Public Order" and "Migrant Smuggling and Human Trafficking" in the Turkish Penal Code No. 5237, rather than under the heading "Crimes Against the Nation and the State ." This choice indicates that the crime poses a multifaceted threat not only to individual victims but also to the migration regime, border security, and public order.

The protected legal values ​​can be briefly summarized as follows:

• The state has the authority to determine and implement its immigration and border policy.

• The dignity and safety of migrants .

• The international community's common order on migration regimes .

The victims of this crime are both the state and the directly affected migrants. While migrants may sometimes appear to be acting voluntarily, more often than not, desperation, misinformation, and exploitation are at play. Therefore, migrant smuggling cannot be viewed as an ordinary contractual relationship where "the parties negotiate mutually and equally.".

2. Essential elements of the crime

In summary, Article 79 of the Turkish Penal Code the illegal entry of foreigners into the country or the illegal expulsion of foreigners from the country . The material elements of this crime can be grouped under three main headings:

1. Perpetrator: Any natural person can be the perpetrator; no special qualifications are required.

2. Victims: Migrants and public order.

3. Verb:

   • Bringing a foreigner into the country illegally,

   • The unlawful expulsion of a foreigner or a Turkish citizen from the country,

   • These actions are performed for financial gain or with the motive of unjust enrichment.

From a moral standpoint, a crime that can only be committed intentionally . The perpetrator knows that their actions are unlawful and knowingly and willingly facilitates the illegal crossing of the border by migrants.

3. Qualifying circumstances, attempt and concurrence

Article 79 of the Turkish Penal Code addresses aggravating circumstances such as committing the crime with dangerous means, transporting the victim in a manner that endangers their life and violates human dignity , or committing the act within the framework of organized crime

A common example is transportation by sea in boats that are unseaworthy or overloaded . In such cases, not only migrant smuggling but also discussions arise regarding intentional killing if the migrants die , or attempted murder with probable intent if they do not

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II. Distinction Between Organizer and Assistant within the Framework of Participation Rules

1. General provisions on complicity (Turkish Penal Code Articles 37, 38, 39)

In the context of migrant smuggling crimes, the general provisions of the Turkish Penal Code complicity are of vital importance. This is because the following individuals may be found together even on a single boat trip:

• The person who finds and persuades the immigrants,

• The financier who collected the money,

• The boat owner who provided the boat,

• The captain/driver operating the boat,

• A person who provides guidance in the border region,

• Those who provide fake identities or fake documents.

Article 37 of the Turkish Penal Code regulates the provisions on direct perpetrators and joint perpetrators . Individuals who control the commission of the crime, direct and manage the act, and direct the decision-making process are considered perpetrators .

Article 39 of the Turkish Penal Code who aid and abet . A person who facilitates the commission of a crime, provides the means, acts as a lookout, or shows the route, but does not control the course of the crime and is not involved in the decision-making process, is often considered an accomplice.

2. Who is the organizer/scheduler?

In rulings on migrant smuggling, courts use the term "organizer" or "scheduler" in a broader sense than simply "leader of a criminal organization " in the technical sense. This person:

• Where will the migrants be picked up from?

• Which vehicle will be used, which route will be taken, on what date and at what price will the transportation take place?

• Which person will take on which role,

• How payments will be made

He is the person who plans and controls this process.

Therefore, the organizer is often a co-perpetrator . Even if they don't personally go to the scene, "control" .

3. The location of the person providing assistance

An accomplice is someone who, while contributing to the commission of a crime, does not have complete control over the entirety of the crime . Actions such as transporting migrants to the border in one's own vehicle, providing a boat for a short period for a fee, showing them a safe place to stay, communicating by phone, or acting as a lookout on the beach are often considered aiding and abetting.

However, it should be remembered that the line between "helping" and "perpetrator" is determined by the perpetrator's control over the act and the weight of their role within the organization.

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III. Legal Nature of Boat (Navy) Ownership

1. Is simply owning a boat sufficient grounds for responsibility?

A common question in practice is who is the registered owner or de facto owner of the boat carrying migrants. The question is:

Is simply owning the boat sufficient grounds for liability under Article 79 of the Turkish Penal Code?

The answer is no . Mere ownership is not sufficient for criminal liability . An owner who is unaware that their boat, vessel, or vehicle will be used for migrant smuggling, or who believes they have lent their vehicle for purposes such as fishing or tourism, will not be held criminally liable to the extent that they did not have malicious intent.

What matters here is the bot owner's:

• the vehicle will be used for,

• By allocating it of his own free will for this purpose ,

• Often, it's about gaining some kind of benefit.

2. The position of the person who knowingly provided the bot: Perpetrator or accomplice?

the boat owner knowingly and willingly provides their boat for use in the illegal passage of migrants, two possibilities arise:

1. Co-perpetration (joint perpetration):

   • If the boat owner actively participates in stages such as determining the route, selecting personnel, negotiating with migrants, and developing the transportation plan,

   • If it determines who will board the boat, how many people will be taken, and how the costs will be shared,

   • If the captain is providing the service himself and is in a position to control the execution of the action,

   In this case, the organizer/joint perpetrator should be held responsible.

2. Helper:

   • The boat owner simply handed over the vehicle for a fixed price, saying, "You pick up the boat tonight and bring it back."

   • They heard about who they would be transporting, the route, and other details from the organizers, but did not take on a decision-making role regarding these matters

   • If he was content with only "the rental income he received,"

   In most cases, providing assistance should be discussed.

The key point to note here is that liability is either heavier or lighter depending on whether the boat owner's earnings constitute "organizational profit" and their degree of involvement in the planning process.

3. The situation where the boat owner does not go out onto the field at all

In some cases, the boat owner never goes out to sea, the boat is transferred or rented to another person. In such a situation:

• If the boat owner knows the details and allocates the boat for this operation, simply not going out into the field will not save him;

• Conversely, did not know in advance, or even if it is claimed that "no trip to sea was made".

In making this distinction, phone records, text messages, money transfers, and witness statements will be decisive evidence.

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IV. Responsibility of the Driver/Captain/Physical Person

1. The perpetrator is the person who actually carries out the act

In migrant smuggling crimes, the driver or captain, in most cases, actually carries out . The person operating the boat, picking up migrants from the shore and transporting them to the open sea, or driving the truck or van to the border line, largely determines the fate of both the migrants and the crime itself.

If the driver:

• He knows that migrants are being transported illegally,

• He chooses the route deliberately,

• If the fee to be paid, the route and the details of the trip are planned together with the organization,

often co-culprits .

2. The limitations of the "ordinary driver" defense

A common defense in practice is, "I'm just the driver, I didn't know what I was carrying." Whether this defense is credible is measured by the following criteria:

• How were the migrants loaded into the vehicle or boat?

• Was the vehicle or boat filled in a way that was completely different from normal passenger transport, being overcrowded and risky ?

• Is the time of the voyage, the route, the port or border point used ordinary, or is it clandestine and carried out at night?

• Did the driver receive an extraordinary benefit in terms of the fee he earned?

The answers to these questions how close is to the organizer. If the driver is an actor who "knows what he's doing," follows instructions, but is at a lower level in planning and benefit sharing, then in some cases accomplice .

3. The Captain's Special Position

In maritime transport, the captain the person responsible for the actual management of the vessel . Especially when transporting migrants in unseaworthy boats, in adverse weather conditions, and without life jackets, the captain often:

• From the dangerous execution of migrant smuggling ,

• from endangering the lives of migrants,

• In cases resulting in death , charges of causing death are also brought

They are also held responsible.

The captain's defense that he "only started the engine" and knew nothing must be tested against the number of migrants, the conditions of the voyage, and the captain's previous activities.

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V. The Position of the Guide (Person Showing the Route, Gathering, and Managing the Convoy)

1. Typical roles of a guide

In migrant smuggling crimes the guidemay have different functions:

• Directing migrants within the city or to the border line,

• Showing "paths" in wooded areas,

• Leading the pedestrian convoy to the beach,

• A person who reports checkpoints and knows back routes to evade the police.

This person is often a local who knows the area well and provides "guide" services along the border for a fee

2. Is the guide/organizer/manager or assistant?

a guide an organizer , the following conditions are generally required:

• the migrants and negotiates the terms ,

• Taking the majority of the fee and distributing the share to other actors,

• He/She must personally determine the route, vehicle, time, and transportation plan,

• Being in a position to give instructions to others.

In contrast, the guide only states:

• If someone has provided one-time guiding services for a small fee, saying, "Go this way, we'll meet here,"

• If he merely referred the migrants to another organizer,

• If they haven't been involved in planning, benefit sharing, and decision-making processes,

In most cases, someone who helps .

3. The line between simple guidance and complicity

In some files, the guide's claim is, "I only showed them the location, I didn't even take the money." Here:

• If the immigration guide describes them as "someone who does this job regularly,"

• If the guide has transported more than one group in the same night or within a few days,

• If the person has received an indirect benefit (accommodation, lodging, other assistance) in return for the work they have done,

The role of the handler continuous complicity . In this case, not merely aiding and abetting, co-perpetration , can be discussed.

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VI. Criteria Applied in Distinguishing Between Organizer and Assistant

when a boat owner, driver, or guide an organizerand when an accomplice , the following criteria are used in practice:

1. Control over crime

The most fundamental criterion is **“mastery of the execution of the crime”**.

• Determining which means of transport, on what date, and along which route migrants will be transported

• The person who decides who will meet them and where to drop them off,

• The person or persons who determine how the benefits will be shared,

He is the judge of the crime and therefore the perpetrator .

2. Participation in planning and decision-making processes

Boat owner, driver or guide:

• Did he simply do what he was told?

• Or did he himself decide "how it should be done"?

If the second situation applies, the person approaches an organizational position. For example:

• "Come at this time; if we leave in the dark, the radar won't see us," said the captain

• The boat owner, formulating the plan by saying, "This boat can carry a maximum of this many people; any more will sink it,"

• The guide suggested, "The checkpoints here are getting more frequent; let's use a different village road."

are no longer just "followers" but decision- makers.

3. The magnitude of the benefit and how it is shared

Income from migrant smuggling often high sums per person . The sharing of benefits reflects a person's position within the organization.

• The person who receives the largest share and controls the collection and distribution of the money is usually the organizer.

• If the driver or guide receives only a fixed and relatively low fee “per trip,” this places them more in the position of a helpful person

4. Division of labor and hierarchy

The hierarchical structure in organized migrant smuggling operations is more or less well-defined.

• Some individuals are permanently for vehicle provision .

• Some simply find and persuade immigrants.

• Some keep watch along the border, others arrival and departure communications.

Within this structure the central role of the boat owner, driver, and guide is decisive in determining the organizer/supporter distinction.

5. One-off activity – ongoing activity

In addition, the activity:

• a one-off and coincidental event ?

• It is also important whether it has become a source of sustained income

If a driver or guide has been involved in numerous migrant smuggling incidents on different dates, using similar methods, and with the same individuals, then as an organized group, or at least as a joint perpetrator, comes into question.

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VII. Evaluation Based on Sample Scenarios

1. Boat owner who only rents out their boat

• The boat owner rents the boat to organizers for a daily or per-trip fee

• He knows the boat will be used to transport migrants

• However, he has no information about the route, the number of migrants, or other actors involved;

• His income is limited solely to "boat rentals".

In this case, the boat owner's liability is often aiding and abetting , because their contribution to the commission of the crime providing the meansand they did not have decisive control over the act.

However, if it turns out that the boat by the same people for the same purpose each time , that the boat owner frequently participated in these activities, and even registered the boat in someone else's name out of fear of being caught, then the issues of organizing and joint complicity will be questioned.

2. The person on the boat who operates the engine

Another scenario is that the captain, caught on the boat, will defend himself by saying, "I was forced to use it by one of the migrants during the voyage." In this case:

• the captain had participated in similar voyages before,

• Whether or not they had made prior phone calls to the migrants and organizers ,

• Whether or not they received payment, and who prepared the bot,

It should be evaluated with evidence.

If it is determined that the person operating the boat has previously served as captain on migrant smuggling expeditions, that the migrants described him as "the captain everyone knows," and that he profited from the operation, that person will generally the perpetrator/organizer or at least as a co-perpetrator .

3. Only the person who arranges beach pick-up and accommodation

Some of the files include information about individuals who met migrants on the beach, provided them with short-term accommodation, and supplied them with food and drink.

This person:

• Previously involved in a migrant smuggling organization ,

• They have prepared the accommodations,

• If he has received part of the fee,

The culpability is debatable.

However, if the individual can convincingly demonstrate that they only opened their home to the immigrants “for humanitarian reasons,” did not accept money, and had no connection to the organization, they did not have the intention to participate in the crime .

4. Person providing guidance at the border crossing

The guide should be a local villager who knows the wooded trails very well. He's on good terms with the organizers; he receives a fixed fee for each group crossing and has been doing this for a long time. The migrants:

• Picking up from a specific point,

• They are giving them information about "where the police are stationed and which areas are off-limits,"

• They hand it over to another group at the other end of the border.

In this case, the guide's role has gone beyond simply providing assistance . They are now an active part of the migrant smuggling organization , and in some cases, even a "small organizer" at the regional level.

5. Foreign perpetrators and the risk of deportation

In migrant smuggling cases, it is also common for the boat owner, driver, or guide a foreign national . Regarding these individuals:

• Imprisonment under Article 79 of the Turkish Penal Code,

• Deportation after the execution of the sentence ,

• Administrative fines and entry bans to Turkey may be considered.

At this point, in the defense of foreign defendants, issues such as language barriers, inability to fully understand the processes, and failure to grasp the organizational role attributed to them are of particular importance in terms of their criminal procedural rights

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VIII. Evidence and Problems of Proof

1. Communications and digital evidence

The following evidence is critical for accurately determining the roles of the boat owner, driver, and guide within the organization:

• Phone HTS records,

• WhatsApp, Telegram, etc. messaging, location sharing,

• Migrants' SMS or call records,

• Navigation logs, GPS data.

These records reveal who gave instructions to whom, who collected the money, and which actor intervened at which stage of the journey.

2. Money transfers and financial evidence

In distinguishing between organizer and accomplice, who receives the funds is crucial. Bank accounts, wire transfer/EFT records, cryptocurrency transfers, and informal transfer mechanisms similar to "hawala" should be examined.

In investigations, migrants often confirm who they gave the money to , sometimes through WhatsApp messages or photos. Therefore, it is necessary to uncover the financial network behind the scenes , not just focus on the people caught at the scene

3. Registration and licensing of marine vessels

The ownership of a boat or vessel, the flag under which it is registered, and whether it has been used in similar crimes previously can be determined through port records and coast guard reports.

These records could refute the boat owner's "I had nothing to do with it" defense, or conversely, show that the boat was taken without his knowledge that day.

4. Allegations of organized crime and their relation to Article 220 of the Turkish Penal Code

Migrant smuggling is, in most cases, through organized means . If:

• If there is a specific hierarchy and division of labor,

• If the activity is ongoing,

• If a long-term criminal relationship has been established with the same individuals,

Under Article 220 of the Turkish Penal Code, of establishing or managing a criminal organization may also come into play. In this case, the boat owner, driver, and guide could be punished for both migrant smuggling and membership in an organization ; this would significantly increase the penalty.

Final words

In conclusion, the responsibility of the boat owner, driver, and guide in the context of the crime of migrant smuggling (Turkish Penal Code Article 79)is too complex and case-by-case to be resolved with a single template. In each specific case:

• Who is the organizer/instructor?

• Who is a co-perpetrator?

• Who helped?

• And the third party, who bears no criminal responsibility whatsoever

In light of the evidence, it should be carefully evaluated within the framework of the provisions regarding complicity.

This article aims to provide a comprehensive assessment to enable both practitioners and academics to more clearly analyze the legal status of boat owners, drivers, and guides in migrant smuggling cases . By considering relevant court decisions, detailed doctrinal discussions, and international conventions, it will be possible to make more fair and accurate assessments in practice.