Migrant Smuggling Crime And Punishment
The crime of migrant smuggling is an elective offense and the crime occurs with the realization of one of the actions listed in the article. The crime of migrant smuggling will occur if a foreigner is brought into the country by illegal means, a foreigner is allowed to stay in the country by illegal means, or a Turkish citizen or a foreigner is allowed to leave the country by illegal means. The crime is a free-movement crime and enabling a person to stay in the country is possible in two types of situations: The person may not have entered the country duly and may have been taken under the protection of someone else, or the person may have entered the country duly, but the necessary permits to stay in the country have not been obtained and someone may have provided the person with a place to stay and given a false identity card.
The moral element of the crime of migrant smuggling is that the purpose of performing one of the optional actions is to obtain a direct or indirect material benefit. Therefore, the crime can only be committed with special intent. If the perpetrator aims to obtain a pecuniary benefit, then the offense of “migrant smuggling” will not occur. As a matter of fact, there are established decisions of the Court of Cassation in this direction. In addition, there is no doubt that if migrants are brought into a country for purposes such as forced labor, prostitution or captivity, the crime of human trafficking will constitute. On the other hand, the consent of the victim does not prevent the occurrence of this crime, and consent will not eliminate the illegality.
The commission of the crime of smuggling of migrants within the framework of the activities of an organization, the victims being subjected to degrading treatment or the occurrence of a danger to their lives are considered as qualified forms of the crime. In addition, if this crime is committed within the framework of the activities of a legal entity, security measures specific to legal entities are imposed according to Article 79/4 of the TPC. Finally, although participation in the aforementioned crime is possible, those who have established functional sovereignty over the commission of the act that causes the crime will be held responsible as joint perpetrators.
The punishment of the basic form of the offense of migrant smuggling is set out in Article 79/1 of the TCC. Accordingly, in the event that a foreigner is illegally brought into the country or allowed to stay in the country or a Turkish citizen or a foreigner is allowed to leave the country in order to obtain direct or indirect financial benefit, the perpetrator is sentenced to imprisonment from 3 to 8 years and a judicial fine of up to ten thousand days.
In paragraph 2 of the same article, the qualified forms of the offense are listed. Accordingly, if the lives and bodily integrity of migrants are endangered or if they are subjected to degrading treatment, the penalty to be imposed is increased from half to 2/3. In addition, if this crime is committed within the framework of the activities of an organization, the penalties to be imposed will increase by half. According to the Supreme Court, there are some conditions that must be met in order to speak of the existence of an organization. These are; the number of members must be at least 3, the existence of a hierarchical relationship between the members, the unification of persons for the purpose of committing a crime, this unification must be continuous in nature and the structure of the organization must be suitable for committing the crime of migrant smuggling in terms of the number of members and tools and equipment. Only in the presence of these conditions, the crime of migrant smuggling will be considered to have been committed within the framework of a criminal organization and the penalty will be increased.
Attempt to this crime, on the other hand, includes the situation where the perpetrator fails to complete the crime due to reasons beyond his control, although he has acted with the intention of completing the crime.