The crime of human trafficking is an alternative offense, meaning it is committed when any one of the acts constituting the offense is carried out. The crime of human trafficking is committed when a foreign national is brought into the country by illegal means, when a foreign national is permitted to remain in the country by illegal means, or when a Turkish citizen or a foreign national is permitted to leave the country by illegal means.
Th e crime constitutes the offense of allowing a person to remain in the country by permitting free movement and may involve two types of individuals: a person who enters the country under the protection of the state, and a person who is considered to be residing in the country—even if they have obtained the necessary permits to stay in accordance with the proper procedures—or a person who has been provided with a false identity.
The moral element of the crime of human trafficking is that the purpose of committing one of the specific acts is to obtain a material benefit, either directly or indirectly. Therefore, the crime can only be committed with specific intent. If the perpetrator’s purpose is to obtain a moral benefit, the “crime of human trafficking” does not occur. Indeed, the Supreme Court has issued rulings in this regard. Furthermore, there is no doubt that the crime of human trafficking is committed when migrants are brought into a country for purposes such as forced labor, prostitution, or enslavement. On the other hand, the victim’s consent does not prevent the crime from occurring, and consent does not eliminate the illegality.
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The commission of the crime of migrant smuggling within the framework of organized criminal activity, subjecting victims to degrading treatment, or endangering their physical safety are considered aggravated forms of the crime. Furthermore, if this crime is committed within the scope of a legal entity’s activities, security measures specific to legal entities are provided for under Article 79/4 of the Turkish Penal Code. Finally, while participation in this crime is possible, those who exercise functional control over the commission of the act constituting the crime will be held liable as joint perpetrators.
The Turkish Penal Code addresses the fundamental elements and penalties for the crime of migrant smuggling in Article 79/1. Accordingly, for the purpose of obtaining direct or indirect financial gain or bringing a foreign national into the country by unlawful means, the act of facilitating the departure of a Turkish citizen from the country is punishable by imprisonment of three to eight years, and this sentence continues until the conclusion of the trial.
The second paragraph of the same article addresses the aggravated forms of the offense. Accordingly, if the lives or physical integrity of migrants are endangered or if they are subjected to degrading treatment, the penalty is increased by one-half to two-thirds. Additionally, if this offense is committed as part of an organization’s activities, the penalties shall be increased by one-half. According to the Supreme Court, certain conditions must be met for the existence of an organization to be established.
These include:
a minimum of three members, the presence of a hierarchical relationship among members, people coming together to commit crimes, the continuity of this association, and the organization’s structure—in terms of the number of members and the means employed—being conducive to the criminalization of migrant smuggling. However, if these conditions are met, the crime of human trafficking will be considered to have been committed within the framework of a criminal organization, and the penalty will be increased.
If the crime is attempted, the situation where the perpetrator, despite having taken action to complete the crime, is unable to do so due to reasons beyond their control is also included within the scope of this provision.