What is the crime of migrant smuggling?

The crime of migrant smuggling, as defined in Article 79 of the Turkish Penal Code, involves transporting goods illegally for the purpose of obtaining a direct or indirect material benefit;

1. To enable a foreigner to enter the country or to leave the country

2. To enable a Turkish citizen or a foreigner to leave the country

They are verbs.

The primary aim in combating this crime is to protect both the sovereign rights and border security of the state, and to safeguard the right to life of individuals who are forced or compelled to travel illegally.

Elements of the Crime of Migrant Smuggling

• Perpetrator

The perpetrator of this crime is the person or persons who, for the purpose of obtaining material gain, illegally bring a foreigner into our country, enable them to stay in our country, or facilitate the departure of a citizen or foreigner from the country. This crime can be committed by anyone, citizen or foreigner. In other words, anyone can be the perpetrator of this crime.

• victim

The victims of the crime of migrant smuggling are the state, society, the individuals who make up society, and the international community.

• The Legal Subject of the Crime of Migrant Smuggling

The entry and stay of foreigners in our country, and the departure of citizens and foreigners from our country, are subject to certain rules. These rules are defined in the Passport Law, the Law on Foreigners and International Protection, and other relevant legislation. Within this framework, entry into and exit from our country must be made through designated locations and border crossings, and documents such as passports, visas, work permits, and residence permits must be obtained in accordance with proper procedures. The legal provisions and rules regarding entry into, exit from, and stay in our country constitute the subject matter of the crime.

• The Material Subject of the Crime

Individuals who are illegally brought into, possessed, or taken out of the country are the subject of this crime, not the perpetrators. Therefore, these individuals are not punished for the crime of migrant smuggling.

• Verb

The acts constituting the crime of migrant smuggling are defined in the law as follows:

Using illegal means to obtain direct or indirect financial gain;

a) To bring a foreigner into the country or to enable them to stay in the country,

b) To enable Turkish citizens or foreigners to leave the country,

This is a crime with alternative actions. This means that performing one of the alternative actions specified in the law is sufficient for the crime to occur.

The entry and stay of foreigners in our country, and the departure of citizens and foreigners from our country, are subject to certain rules. These rules are defined in the Passport Law, the Law on Foreigners and International Protection, and other relevant legislation. Within this framework, entry into and exit from our country must be made through designated locations and border crossings, and documents such as passports, visas, work permits, and residence permits must be obtained in accordance with proper procedures.

Activities aimed at bringing a person into our country, allowing them to stay here, or removing them in violation of these rules constitute the material elements of the crime.

The actions constituting the material element of a crime must be carried out through illegal means. In this respect, allowing a person to enter, leave, or stay in the country in accordance with legal and lawful processes is not a crime.

• The Mental Element of the Crime of Migrant Smuggling

Migrant smuggling is a crime that can only be committed intentionally. It cannot be committed negligently. The mental element is the intention to obtain material gain. Whether the material gain is direct or indirect is irrelevant. In both cases, the intent, which is the mental element of the crime, is fulfilled. Since the law requires the intention to obtain material gain for the crime to occur, if there is no such intent, the mental element of the crime will not be present, and therefore, the crime cannot be said to have occurred.

For example, providing shelter to a foreigner who has entered our country illegally and charging them for it constitutes the crime of migrant smuggling. However, helping someone who is sick or in distress due to cold weather, thirst, or hunger, without expecting any financial gain, and providing temporary shelter for humanitarian reasons, is not a crime. This is because there is no direct or indirect intention to obtain financial benefit.

• Qualifying Elements of the Crime of Migrant Smuggling

Articles 79/2 and 79/3 of the Turkish Penal Code list the aggravating circumstances.

(2) The crime, the victims;

1. a) It poses a danger to life,
2. b) Committing the crime by subjecting the victim to degrading treatment,

In that case, the penalty will be increased by half to two-thirds.

(3)If this crime is committed jointly by more than one person, the sentence shall be increased by up to half; if it is committed within the framework of an organized group's activities, the sentence shall be increased by half to one-fold.

The law stipulates that crimes where the victims' lives are endangered—for example, by being transported at sea under unsuitable conditions that could risk their lives, or by being subjected to degrading treatment, such as being transported, housed, and mistreated in overcrowded conditions—or when the crime is committed within the framework of organized crime are considered aggravating circumstances, and the penalties for such offenses are increased.

Attempted Migrant Smuggling

Migrant smuggling is an organized crime scheme aimed at illegally transporting people across borders. This crime constitutes a serious human rights violation and an international social problem, similar to human trafficking and smuggling offenses.

Criminal-related migrant smuggling efforts often involve activities such as falsifying documents, arranging transportation, and ensuring safe travel. The motives behind this crime are often linked to economic hardship, war, political oppression, and natural disasters.

Migrants may resort to such dangerous routes in search of a better life, which creates opportunities for criminal organizations. Effective measures must be taken to combat migrant smuggling attempts and to make border crossings mandatory.

Aiding in the Crime of Migrant Smuggling

Individuals involved in migrant smuggling may provide logistical support to illegally traveling migrants, participate in transportation organizations, commit document forgery, or offer advice during the journey. These people are criminals who seek to profit financially by persuading migrants to travel illegally.

Those involved in migrant smuggling ignore the dangerous and deplorable conditions to which migrants are subjected. Punishing those who contribute to migrant smuggling can increase the deterrent effect of this crime and strengthen the fight against it.

Complaint Regarding the Crime of Migrant Smuggling

Raising awareness and sensitivity within society is a crucial factor in combating this crime. It is of utmost importance that individuals or members of society who witness or are involved in smuggling crimes report these crimes to the authorities.

Filing a complaint is an important step in preventing such crimes, bringing perpetrators to justice, and protecting victims. Suspicion or information regarding migrant smuggling should be reported to local authorities, law enforcement agencies, or relevant organizations.

Sharing this information can help in the investigation of crimes and the arrest of criminals. In this case, education and awareness-raising activities are crucial to increase awareness in society and encourage people to report these crimes.

The Difference Between the Crime of Migrant Smuggling and the Crime of Human Trafficking

These two crimes, often confused by the public, are completely different in terms of their aims and methods:

• Migrant Smuggling (Turkish Penal Code Article 79):
  • Purpose: To cross the border illegally.
  • Relationship: The relationship between the migrant and the smuggler is a commercial one that usually ends once the border is crossed . The migrant pays the smuggler for this “service.”
  • Consent: The migrant has consent and a request to cross the border.
  • The Value Targeted by the Crime: Primarily, it is committed against the sovereignty of the state
• Human Trafficking (Turkish Penal Code Article 80):
  • The aim is not to get the person across the border, but to exploit them (forced labor, prostitution, organ trafficking, etc.). Crossing the border can only be a means to an end for exploitation.
  • Relationship: The relationship between smuggler and victim is one of oppression and exploitation that continues even after the border is crossed .
  • Consent: This is invalid if it is obtained through coercion, threat, deception, or exploitation of a person's helplessness. Even if there was initial consent, it is void if the intention is to exploit the situation.
  • The Value Targeted by the Crime: Primarily, a person's freedom and dignity .

Supreme Court Decisions Regarding the Crime of Migrant Smuggling

Turkish Supreme Court Criminal General Assembly Case No: 2018/18-422 Decision No: 2021/308

📌 Event Summary

During a raid by law enforcement officers, 12 foreign nationals who had entered Türkiye illegally were apprehended in the house rented by the defendant MA. In their statements, the migrants declared that they had no intention of staying permanently in Türkiye, that they were waiting to cross to Greece by boat through organizers, and that this house had been provided to them as a "waiting station." The local court sentenced the defendant for the crime of "facilitating the stay of migrants in the country.".

⚖️ Supreme Court Review

The Supreme Court's Criminal General Assembly ruled that there was an error in the legal characterization of the act. It was determined that the defendant's sheltering of migrants in his home did not constitute an act of "enabling them to stay in the country," as the migrants' primary aim was to leave the country.

According to Article 79/1-b of the Turkish Penal Code, activities aimed at enabling migrants to leave the country as if the crime were completed, even if they remain at the attempt stage . The act is of the nature of "attempted crime of enabling departure abroad" (but punished as if it were completed). Therefore, the local court's ruling based on the article "enabling stay in the country" was found to be incorrect and overturned.

Turkish Supreme Court, 4th Criminal Chamber, Case No: 2020/3815, Decision No: 2021/24930

📌 Event Summary

During an inspection of the textile workshop belonging to the defendant HK, it was determined that six foreign nationals who had entered Türkiye illegally and lacked residence/work permits were being employed without insurance and at wages far below market rates. The local court acquitted the defendant, arguing that he did not directly receive money from the migrants and that the act was merely the employment of illegal workers, punishable by administrative fines. The Public Prosecutor appealed the decision.

⚖️ Supreme Court Review

The 4th Criminal Chamber of the Supreme Court of Appeals overturned the acquittal. The Chamber "obtaining direct or indirect material benefit," , broadly and appropriately.

The defendant's practice of employing undocumented immigrants below the legal minimum wage, without paying insurance premiums, and under harsh conditions an indirect financial benefit. Since it has been established that the defendant "enabled them to remain in the country" by providing them with work and accommodation, the act has been deemed to constitute the crime of migrant smuggling under Article 79 of the Turkish Penal Code.

Turkish Supreme Court, 18th Criminal Chamber, Case No: 2015/34102, Decision No: 2016/18650

📌 Event Summary

The defendant was caught trying to smuggle a Turkish citizen , who was banned from entering Turkey or had a forged passport , into Turkey illegally via the Kapıkule Border Crossing in a truck trailer with a hidden compartment. The local court convicted the defendant of migrant smuggling.

⚖️ Supreme Court Review

The 18th Criminal Chamber of the Court of Cassation overturned the decision, citing the principle of legality in crime and punishment (Turkish Penal Code Article 2). Article 79, paragraph 1, subparagraph (a) of the Turkish Penal Code explicitly limits the subject of the crime to "bringing a foreigner into the country or enabling them to stay in the country .

In clause (b) of the same article, it is stated that "facilitating the departure of a Turkish citizen or a foreigner from the country" means that Turkish citizens are only their departure from the country . Therefore, the act of illegally bringing a Turkish citizen into Turkey does not constitute the legal elements (typicality) of the crime of migrant smuggling. The act can only be evaluated in terms of the crimes of violating the passport law or forgery of official documents, if the conditions are met.

Frequently Asked Questions

What is the penalty for the crime of migrant smuggling?

As of 2026, the current penalty for migrant smuggling is imprisonment for five to eight years and a fine of between one thousand and ten thousand days. Both imprisonment and fines are imposed. In cases of aggravating circumstances, this penalty is significantly increased (Turkish Penal Code, Article 79).

Would someone who transports migrants without receiving payment be committing a crime?

For a crime to occur, the perpetrator must act with the intention of obtaining material gain. In cases of assistance given purely for humanitarian reasons, without any expectation of profit, the mental element of the crime is not present. However, the existence of an intention to gain something is sufficient; the actual receipt of the money is not required.

Will the sentence be reduced if caught at the attempt stage?

No. Under current regulations, the crime of migrant smuggling is punishable as if it were completed, even if it remains at the attempt stage. Therefore, the apprehension of migrants before they reach the border is not considered a reason for a reduction in punishment (Turkish Penal Code, Article 79/1).

Can I get my seized vehicle back?

The vehicle owner entitled to a refund can reclaim their vehicle by depositing a security deposit equal to the vehicle's value with the competent authority within thirty days of the seizure date. Vehicles with Turkish license plates are, as a rule, returned to their owners in the first instance; the process varies depending on the evidence in the case.

Are migrant smuggling and human trafficking the same thing?

No. In migrant smuggling, the migrant's consent is obtained, and the crime is completed upon arrival in the target country. In human trafficking, however, the person's will is impaired through threat, coercion, or force, and the aim is exploitation. The elements and penalties for the two crimes are different.

What is the statute of limitations for this crime?

The statute of limitations for the basic form of the crime of migrant smuggling is determined within the framework of Article 66 of the Turkish Penal Code. Since the impact of these time limits on the specific case may vary depending on the date the crime was committed and the aggravating circumstances, it is recommended that the calculation be done with professional assistance.

Which court will hear the case?

The Magistrates' Criminal Court handles cases relating to the basic nature of the crime. In cases where the crime is alleged to have been committed within the framework of an organized group's activities, jurisdiction may be transferred to the High Criminal Court. As a rule, the competent court is the court of the place where the crime was committed.