{"id":158,"date":"2022-08-16T09:00:00","date_gmt":"2022-08-16T09:00:00","guid":{"rendered":"https:\/\/utuhukuk.com\/gocmen-kacakciligi-2\/"},"modified":"2026-10-01T14:08:32","modified_gmt":"2026-10-01T14:08:32","slug":"offence-migrant-smuggling","status":"publish","type":"post","link":"https:\/\/utuhukuk.com\/en\/gocmen-kacakciligi-2\/","title":{"rendered":"The Offence of Migrant Smuggling"},"content":{"rendered":"<div class=\"pm\" data-utu-pm=\"1\">\n<p class=\"pm-giris\">In this article, we discuss <strong>the offence of migrant smuggling<\/strong>In 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 T\u00fcrkiye.<\/p>\n<aside class=\"pm-ozet\" aria-label=\"In brief\">\n<p class=\"pm-etiket\">In brief<\/p>\n<ul>\n<li>The offence of migrant smuggling consists of bringing a foreign national into the country by illegal means, enabling them to stay in the country, or enabling a person to leave the country, for the purpose of material gain.<\/li>\n<li>The basic penalty is imprisonment from three to eight years and a judicial fine of up to ten thousand days; even if the offence remains at the attempt stage, it is punished as if completed.<\/li>\n<li>Where there is danger to the victims' lives or degrading treatment, the penalty is increased by one half to two thirds, and where the offence is committed within the activities of an organisation, it is increased by one half.<\/li>\n<li>Items, money and vehicles used in or obtained from the offence are subject to confiscation under Articles 54 and 55 of the TCK; security measures are applied to legal entities.<\/li>\n<\/ul>\n<\/aside>\n<div class=\"pm-not\">\n<p class=\"pm-etiket\">Currency note<\/p>\n<p>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.<\/p>\n<\/div>\n<details class=\"pm-ic\" open>\n<summary>Contents<\/summary>\n<ol>\n<li><a href=\"#tck-79\">Migrant smuggling under Art. 79 of the Turkish Criminal Code<\/a><\/li>\n<li><a href=\"#yasa-disi-goc\">Irregular migration and international conventions<\/a><\/li>\n<li><a href=\"#unsurlar\">Elements of the offence<\/a><\/li>\n<li><a href=\"#ceza-artirimi\">Increased penalties, confiscation and other consequences<\/a><\/li>\n<li><a href=\"#sss\">Frequently asked questions<\/a><\/li>\n<li><a href=\"#iletisim\">Consultation request<\/a><\/li>\n<\/ol>\n<\/details>\n<section id=\"tck-79\">\n<h2>The Offence of Migrant Smuggling under Art. 79 of the Turkish Criminal Code<\/h2>\n<p>The offence of migrant smuggling is regulated in Article 79 of Turkish Criminal Code (TCK) No. 5237:<\/p>\n<blockquote class=\"pm-kanun\">\n<p>\u201c<em>(1) Any person who, with the aim of obtaining a material benefit directly or indirectly, by unlawful means:<\/em><\/p>\n<p>a) brings a foreigner into the country or enables a foreigner to remain in the country,<\/p>\n<p>b) enables a Turkish citizen or a foreigner to go abroad,<\/p>\n<p>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.<\/p>\n<p>(2) (Additional paragraph: 22\/07\/2010, Law No. 6008, Art. 6) Where the offence:<\/p>\n<p>a) creates a danger to the life of the victims,<\/p>\n<p>b) is committed by subjecting the victims to degrading treatment,<\/p>\n<p>the penalty to be imposed shall be increased by one half to two thirds.<\/p>\n<p>(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.<\/p>\n<p>(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.\u201c<\/p>\n<p><cite>Turkish Criminal Code No. 5237, Art. 79<\/cite>\n<\/p><\/blockquote>\n<\/section>\n<section id=\"yasa-disi-goc\">\n<h2>Illegal Migration and International Conventions<\/h2>\n<p>Owing to its geographical location, T\u00fcrkiye 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 T\u00fcrkiye\u2019s 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 T\u00fcrkiye  has signed the UN Convention against Transnational Organized Crime and its Additional Protocols on Migrant Smuggling and Human Trafficking.<\/p>\n<\/section>\n<section id=\"unsurlar\">\n<h2>Elements of the Offence of Migrant Smuggling<\/h2>\n<p>The elements of the offence of migrant smuggling may be listed as follows:<\/p>\n<ul class=\"pm-liste\">\n<li>A foreigner must be brought into T\u00fcrkiye, or enabled to remain in T\u00fcrkiye, by unlawful means.<\/li>\n<li>A Turkish citizen or a foreigner must be enabled to go abroad by unlawful means.<\/li>\n<li>The offence must be committed with the aim of obtaining a material benefit: the legislator has interpreted material benefit broadly, referring to direct or indirect benefit. Material benefit must be assessed in terms of economic value; sexual or psychological gain is not regarded as falling within the scope of material benefit.<\/li>\n<li>The offence, which can be committed by anyone, may be committed individually or through a criminal organisation.<\/li>\n<\/ul>\n<div class=\"pm-not\">\n<p class=\"pm-etiket\">Attempt<\/p>\n<p>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.<\/p>\n<\/div>\n<\/section>\n<section id=\"ceza-artirimi\">\n<h2>Aggravation of Penalty, Confiscation and Other Consequences<\/h2>\n<p>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.<\/p>\n<p class=\"pm-tablo-baslik\" id=\"tablo-artirim\">Aggravating circumstances and their consequences under TCC Art. 79<\/p>\n<div class=\"pm-tablo-kap\">\n<table class=\"pm-tablo\" aria-labelledby=\"tablo-artirim\">\n<thead>\n<tr>\n<th>H\u00e2l<\/th>\n<th>Outcome<\/th>\n<\/tr>\n<\/thead>\n<tbody>\n<tr>\n<td>Creating a danger to the lives of the victims<\/td>\n<td>The penalty is increased by one half to two thirds<\/td>\n<\/tr>\n<tr>\n<td>Commission by subjecting the victims to degrading treatment<\/td>\n<td>The penalty is increased by one half to two thirds<\/td>\n<\/tr>\n<tr>\n<td>Commission within the framework of the activities of an organisation<\/td>\n<td>The penalties are increased by one half<\/td>\n<\/tr>\n<tr>\n<td>Commission within the framework of the activities of a legal person<\/td>\n<td>Security measures are imposed on the legal person<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/div>\n<p>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.<\/p>\n<p>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.<\/p>\n<ul class=\"pm-cipler\" aria-label=\"Ayr\u0131ca cezaland\u0131r\u0131lan su\u00e7lara \u00f6rnekler\">\n<li>Sahte kimlik<\/li>\n<li>Residence documents<\/li>\n<li>Issuance of passports<\/li>\n<\/ul>\n<p>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.<\/p>\n<div class=\"pm-not\">\n<p class=\"pm-etiket\">Distinction from fraud<\/p>\n<p>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.<\/p>\n<\/div>\n<\/section>\n<p class=\"pm-dipnot\">Related legislation: <a href=\"https:\/\/www.mevzuat.gov.tr\/mevzuat?MevzuatNo=5237&amp;MevzuatTur=1&amp;MevzuatTertip=5\" target=\"_blank\" rel=\"noopener\">Turkish Criminal Code No. 5237<\/a> (mevzuat.gov.tr)<\/p>\n<section id=\"sss\" class=\"pm-sss\">\n<h2>The Offence of Migrant Smuggling: Frequently Asked Questions<\/h2>\n<details open>\n<summary>What are the elements of the offence of migrant smuggling?<\/summary>\n<div>\n<p>There must be the smuggling of a foreigner into T\u00fcrkiye by illegal means or enabling them to stay in T\u00fcrkiye, 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.<\/p>\n<\/div>\n<\/details>\n<details>\n<summary>How is the material gain requirement understood?<\/summary>\n<div>\n<p>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.<\/p>\n<\/div>\n<\/details>\n<details>\n<summary>Is the penalty reduced for attempt in the offence of migrant smuggling?<\/summary>\n<div>\n<p>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.<\/p>\n<\/div>\n<\/details>\n<details>\n<summary>In which cases is the penalty increased?<\/summary>\n<div>\n<p>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.<\/p>\n<\/div>\n<\/details>\n<details>\n<summary>What happens if forged documents are produced in connection with smuggling?<\/summary>\n<div>\n<p>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.<\/p>\n<\/div>\n<\/details>\n<\/section>\n<section id=\"iletisim\" class=\"pm-form-kap\">\n<div class=\"pm-form-sol\">\n<p class=\"pm-etiket\">Consultation request<\/p>\n<h2>Do you have a question about a migrant smuggling charge?<\/h2>\n<p>As UTU Hukuk Dan\u0131\u015fmanl\u0131k, we provide legal and advisory services in the field of criminal law.<\/p>\n<p>Fill in the form and we will call you. 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