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In this article, we discuss the offence of migrant smugglingIn this article we discuss the text of Art. 79 of the Turkish Criminal Code, which regulates the offence, its elements, the provisions on attempt and increased penalties, and the other consequences of the offence. We also briefly touch on the scale of irregular migration and the international instruments signed by Türkiye.
Currency note
This article was prepared in accordance with the legislation and practice in force on the date of publication. The migration statistics in the article and the statutory provisions on migrant smuggling may have changed since that date. You are advised to consult a lawyer on the current position.
The offence of migrant smuggling is regulated in Article 79 of Turkish Criminal Code (TCK) No. 5237:
“(1) Any person who, with the aim of obtaining a material benefit directly or indirectly, by unlawful means:
a) brings a foreigner into the country or enables a foreigner to remain in the country,
b) enables a Turkish citizen or a foreigner to go abroad,
shall be punished with imprisonment of three to eight years and a judicial fine of up to ten thousand days. (Additional sentence: 22/07/2010, Law No. 6008, Art. 6) Even if the offence remains at the attempt stage, the penalty shall be imposed as if it had been completed.
(2) (Additional paragraph: 22/07/2010, Law No. 6008, Art. 6) Where the offence:
a) creates a danger to the life of the victims,
b) is committed by subjecting the victims to degrading treatment,
the penalty to be imposed shall be increased by one half to two thirds.
(3) Where this offence is committed within the framework of the activities of an organisation, the penalties to be imposed shall be increased by one half.
(4) Where this offence is committed within the framework of the activities of a legal person, the security measures specific to legal persons shall be imposed on it.“
Turkish Criminal Code No. 5237, Art. 79
Owing to its geographical location, Türkiye is one of the countries most exposed to irregular migration. According to statements made by the competent authorities, 56,219 irregular migrants and 937 migrant smugglers were apprehended within Türkiye’s borders in 2003, whereas in 2018 these figures are estimated to have exceeded 200,000. Since these matters constitute a serious problem in the international and national arena, the Republic of Türkiye has signed the UN Convention against Transnational Organized Crime and its Additional Protocols on Migrant Smuggling and Human Trafficking.
The elements of the offence of migrant smuggling may be listed as follows:
Attempt
Under the last sentence of the first paragraph, the possibility of attempt in respect of the offence of migrant smuggling has been removed by subsequent amendments. Unlike the provisions of the Turkish Criminal Code on attempt, it is stated that even where the offence in question remains at the attempt stage, the penalty will be imposed as if the offence had been completed.
The second paragraph, subsequently added to the article, regulates the aggravation of the penalty. It provides that where the offence creates a danger to the life of the victims or they are subjected to degrading acts, the basic penalty set out in the first paragraph will be increased by 1/2 to 2/3. Likewise, rates of increase over the basic penalty have been laid down where the offence is committed within the framework of organisational activity.
Aggravating circumstances and their consequences under TCC Art. 79
| Hâl | Outcome |
|---|---|
| Creating a danger to the lives of the victims | The penalty is increased by one half to two thirds |
| Commission by subjecting the victims to degrading treatment | The penalty is increased by one half to two thirds |
| Commission within the framework of the activities of an organisation | The penalties are increased by one half |
| Commission within the framework of the activities of a legal person | Security measures are imposed on the legal person |
The last paragraph of the article expressly states that where the offence is committed in the course of the activities of a legal person, the security measures regulated in Article 60 of the Turkish Criminal Code will be applied.
Items, money, vehicles or other material assets used by the perpetrators in committing the offence of migrant smuggling or obtained from the offence are subject to confiscation under Articles 54 and 55 of the Turkish Criminal Code. Furthermore, where other offences (forged identity documents, residence documents, issuing passports) are committed together with migrant smuggling, the perpetrators will also be punished separately for those offences.
Pursuant to Article 13 TCK, where the crime of genocide is committed abroad by a Turkish citizen or a foreign national, Turkish law will apply.
Distinction from fraud
Finally, according to settled case law and Court of Cassation decisions, the offence of fraud should be considered for those who commit the acts covered by the article not with the motive of migrant smuggling but solely to obtain unjust gain or benefit from the victims.
Related legislation: Turkish Criminal Code No. 5237 (mevzuat.gov.tr)
There must be the smuggling of a foreigner into Türkiye by illegal means or enabling them to stay in Türkiye, or enabling a Turkish citizen or a foreigner to leave the country by illegal means, and this must be done for the purpose of obtaining a material benefit. The offence may be committed by anyone, individually or through an organisation.
The Law refers to direct or indirect gain. The article states that material gain should be assessed in terms of economic value and that sexual or psychological benefit does not fall within this scope.
No. Under the sentence added by Law No. 6008, even if the offence remains at the attempt stage, a penalty is imposed as if it had been completed.
Where the offence endangers the victims' lives or is committed by subjecting the victims to degrading treatment, the penalty is increased by one half to two thirds; where it is committed within the activities of an organisation, it is increased by one half.
The article states that if other offences, such as producing forged identity documents, residence permits or passports, are committed together with migrant smuggling, the offender will also be punished separately for those offences.
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