Smuggling crimes against migrants can be committed not only in Turkey but also outside of Turkey . In particular, when Turkish citizens transport foreigners from one third country to another, the question arises: "How is Turkey's criminal jurisdiction determined in such cases?"

This article will examine the legal aspects of "transporting migrants from one country to another outside of Türkiye" within the framework of the Turkish Penal Code, international conventions, and Supreme Court decisions.

From the perspective of the Turkish Penal Code

1. Application in Terms of Location (Turkish Penal Code Article 8)

• As a rule, Turkish law applies to crimes committed in Turkey.

• If the act of migrant smuggling is committed entirely in a foreign country, the Turkish Penal Code does not apply directly.

2. A Turkish Citizen Committing a Crime Abroad (Turkish Penal Code Article 11)

• If a Turkish citizen engages in migrant smuggling abroad, they can be prosecuted under the Turkish Penal Code upon their return to Turkey.

• Condition: The individual must not have been convicted in a foreign country. If they have served a sentence there, it will be deducted according to Article 19 of the Turkish Penal Code.

3. Universal Jurisdiction

Since migrant smuggling is an international crime, it can in some cases be investigated in Turkey under universal jurisdiction

---

 International Law Dimension

1. Palermo Protocol

The Palermo Protocol against Smuggling of Migrants , to which Turkey is a party , covers offenses committed not only in transit countries but in any country.

• So, if a Turkish citizen is smuggling migrants from another country, this constitutes a crime for Türkiye as well.

2. Bilateral and Multilateral Agreements

• Turkey judicial assistance and extradition agreements .

• These agreements allow the perpetrator to be tried both in the country where the crime was committed and in the country of their citizenship.

3. The Problem of Double Justice

ne bis in idem, one cannot be tried twice for the same offense.

• If a defendant is convicted in Germany, they cannot be sentenced again in Türkiye for the same offense.

• However, if the person has never been tried in Germany, a case can be brought against them in Türkiye.

---

 Supreme Court Practice

1. Supreme Court of Appeals, 18th Criminal Chamber, Case No. 2017/4358, Decision No. 2019/2211.

if the defendants transport migrants from outside Turkey to another country, and the perpetrator is a Turkish citizen, they can be tried in Turkey under Article 11 of the Turkish Penal Code .

2. Court of Cassation, 9th Criminal Chamber, Case No. 2014/7524.

It has been emphasized that if a Turkish citizen defendant is caught smuggling migrants abroad and the foreign court decision has become final, a retrial cannot be held in Türkiye.

---

 Concrete Scenario

Event

Turkish citizen MA was caught smuggling migrants from Libya to Italy illegally. He was arrested by Italian police and charged.

Legal Assessment

• He was tried in Italy and sentenced to 5 years in prison.

• Upon returning to Türkiye, he will not be tried again for the same offense (ne bis in idem).

• However, Turkish authorities can restrict MA's travel abroad, and it will be recorded in his criminal record.

 If MA returns to Turkey without any trial in Italy → Article 11 of the Turkish Penal Code .

---

• Transporting migrants from one country to another outside of Turkey the crime of migrant smuggling .

• If the perpetrator is a Turkish citizen, and has not been tried in a foreign country, they can also be tried in Turkey.

• If there is a final conviction in a foreign country, a new case cannot be opened in Türkiye; however, the sentence will be offset.

• Therefore, the issue is important both in terms of the territorial application of the Turkish and international criminal law .

Supreme Court 9th Criminal Chamber – Decision: Review of Case No. 2013/3031

1. Summary of the Event

The case file reveals that the defendants attempted to transport migrants from another country (such as Syria) outside of Turkey's borders to yet another foreign country (such as Greece)

• Money was taken from the immigrants.

• The action takes place entirely in a foreign country.

• The defendants are Turkish citizens.

The local court acquitted the defendant on the grounds that "the Turkish judiciary lacked jurisdiction because the crime was not committed in Türkiye.".

---

2. The Court of Cassation's Assessment

2.1. Turkish Penal Code Article 8 – Application in Terms of Location

Normally, the Turkish Penal Code applies only to crimes committed in Turkey. However, the Supreme Court of Appeals evaluated this case not only within the framework of Article 8 of the Turkish Penal Code, but also within the framework of Article 11

2.2. Turkish Penal Code Article 11 – Committing a Crime Abroad by a Turkish Citizen

• If a Turkish citizen engages in migrant smuggling abroad, they can be prosecuted in Türkiye upon their return.

• Based on this ruling, the Supreme Court has accepted that the defendants can be tried in Türkiye because they are Turkish citizens.

2.3. The Factor of Self-Interest

It has been established that money was taken from the migrants. Therefore, the defendants' defense of "humanitarian aid" has been rejected.

2.4. The International Dimension of the Crime

The Supreme Court emphasized that migrant smuggling a transnational crime and, according to the Palermo Protocol, can be punished not only in the transit country but also in other countries.

---

3. Outcome of the Decision

The 9th Criminal Chamber of the Supreme Court of Appeals overturned the local court's acquittal decision, which was based on the grounds of "lack of jurisdiction.".

• Because the defendants are Turkish citizens, they can also be tried in Türkiye

• The elements of the crime have been met because money was taken from the immigrants

• The court ruled that the fact that the act took place outside of Türkiye does not absolve the defendant of criminal responsibility.

---

4. Significance of the Decision

a) In terms of Jurisdiction

This decision Turkish citizens who commit migrant smuggling crimes abroad can also be prosecuted in Turkey .

b) From the Perspective of International Criminal Law

Migrant smuggling is considered an international crime . Case law consistent with the Palermo Protocol, to which Turkey is a signatory, has been established

c) From the Perspective of the Interest Element

The Supreme Court, once again deeming the element of benefit critical, deemed the charging of fees to immigrants sufficient for the crime to have been committed.

d) The Problem of Double Justice

The ruling also reminded that if the defendant has received a final sentence for the same offense in a foreign country, he/she cannot be tried again in Türkiye (Turkish Penal Code Article 19 – ne bis in idem).

---

5. Concrete Scenario (Original Example)

The defendant, AK, is a Turkish citizen. He was caught transporting 20 migrants from Syria to Greece by boat. He returned to Türkiye before charges were brought against him in Syria.

Legal Assessment

• Since he is a Turkish citizen, he will be tried in Turkey under Article 11 of the Turkish Penal Code.

• Since money was taken from the migrants, Article 79 of the Turkish Penal Code (migrant smuggling) applies.

• Even though the act took place outside of Türkiye, criminal liability remains.

---

Supreme Court 9th Criminal Chamber – Decision: 2013/3031, regarding the crime of migrant smuggling:

1. Even if committed abroad by Turkish citizens, the crime can be prosecuted in Türkiye

2. The crime will be considered to have occurred if the element of benefit is proven

3. This is an important precedent that demonstrates the acceptance of broad jurisdiction against transnational crimes in accordance with international law
   

Application Problems in Migrant Smuggling Crimes Committed Abroad Under Article 11 of the Turkish Penal Code

1. Prohibition of Double Judgment (Ne Bis in Idem)

• The problem: If a Turkish citizen has been tried and convicted abroad for migrant smuggling, they may face a second trial in Turkey for the same offense.

• Solution: According to Article 19 of the Turkish Penal Code and Article 7, Section 4 of Protocol 7 to the European Convention on Human Rights, a second trial is not possible for the same offense. However, in Turkey, legal effect can only be established for a foreign court judgment through recognition and enforcement

---

2. The Issue of Offset

• The problem: If the perpetrator has received sentences both abroad and in Turkey, the method of offsetting those sentences is debatable.

• Solution: Article 19 of the Turkish Penal Code provides a clear provision: Sentences served in a foreign country are deducted from the sentences served in Turkey.

• Implementation Difficulty: Documenting sentences served in foreign countries can create problems in calculating sentences in Turkey.

---

3. Difficulty in Gathering Evidence

• The problem: When the country where the crime was committed is foreign, access to evidence is difficult in a case opened in Turkey.

• Solution: Judicial cooperation mechanisms come into play (Hague Convention, bilateral agreements). However, the time it takes to gather evidence leads to cases dragging on for years.

---

4. The Perpetrator's Return to Türkiye

• The problem: When a perpetrator commits a crime in a foreign country and returns to Turkey, the foreign state can request extradition.

• Solution: According to Article 38 of the Constitution, Turkish citizens cannot be extradited to their own countries. However, a lawsuit can be filed and a trial can be held in Turkey (Turkish Penal Code Article 11).

---

5. Organized Crime Structure

• The problem: Migrant smuggling is often carried out by internationally organized structures.

• Solution: Article 220 (organized crime) and Article 79 of the Turkish Penal Code should be applied together. However, obtaining evidence becomes even more difficult when the organization has international connections.

---

6. International Law and the Palermo Protocol

• The problem: The act of migrant smuggling committed abroad by a Turkish citizen needs to be evaluated according to international standards.

• Solution: The Palermo Protocol obligates signatory states to punish their own citizens as well. However, the differing penalties among states create problems in practice.

---

7. Public Order Exception

• The problem: When seeking recognition of a foreign court decision in Turkey, of violation of Turkish public order may arise.

• For example, the fact that penalties are very lenient in some countries may be incompatible with Turkish public order.

• Solution: Courts should interpret the public order exception narrowly; otherwise, international cooperation will be undermined.

---

8. Conclusion

Article 11 of the Turkish Penal Code allows for the prosecution in Türkiye of migrant smuggling offenses committed abroad by Turkish citizens. However:

• Prohibition of double jeopardy,

• Penalty offsetting issues,

• Difficulties in obtaining evidence,

• International organized crime structure,

• the public order exception
  create significant obstacles in practice.

Therefore, it is necessary to both strengthen international criminal justice cooperationand for Turkish courts to develop more practical solutions regarding the recognition and enforcement of foreign judgments .

                                                                                                                                                                    Law Faculty Student Ada Ceren KENDİGELEN