Legal definition of the crime
The crime of migrant smuggling is regulated under Article 79 of the Turkish Penal Code under the heading “International Crimes.” The relevant provision is as follows:
TCK Art. 79 –
Any person who, directly or indirectly, for the purpose of obtaining material benefit, unlawfully:
a) Smuggles a foreigner into the country or enables a foreigner to remain in the country,
b) Enables a Turkish citizen or a foreigner to leave the country,
shall be punished with imprisonment from five to eight years and a judicial fine ranging from one thousand to ten thousand days. (Additional sentence: 22/7/2010 – Art. 6008/6) Even if the crime remains at the stage of attempt, the penalty shall be imposed as if it were completed.
(2) (Additional paragraph: 22/7/2010 – Art. 6008/6) If the crime is committed in a manner that:
a) Endangers the life of the victims,
b) Involves degrading or humiliating treatment,
the penalty to be imposed shall be increased by from one-half up to two-thirds.
(3) (Amended: 6/12/2019 – Art. 7196/56) If this crime is committed jointly by more than one person, the penalty to be imposed shall be increased by up to one-half; if it is committed within the scope of an organization’s activities, the penalty shall be increased by from one-half up to one fold.
(4) If this crime is committed within the scope of a legal entity’s activities, security measures specific to legal entities shall be imposed on the legal entity.
Elements of the crime
When the crime of migrant smuggling is evaluated together with its objective and subjective elements, it has the following fundamental components:
1- Perpetrator:
No special requirement is sought regarding the perpetrator in the relevant legal provision; therefore, anyone can be the perpetrator of this crime.
2- Victim:
In terms of this crime, the victim is everyone who makes up society.
3- Act (Conduct) Element:
With regard to Article 79 of the Turkish Penal Code, the act element consists of smuggling a foreigner into the country by unlawful means, enabling a foreigner to remain in the country by unlawful means, or enabling a Turkish citizen or a foreigner to leave the country by unlawful means. The crime is one with alternative acts, and the commission of any one of these alternative acts is sufficient for the crime to occur.
However, it should be noted that for the formation of the crime, the nationality of the victim and which country’s borders are involved are important. If a foreign national agrees with the perpetrator in order to reach the country of which they are a citizen, the perpetrator’s acts cannot be evaluated within the scope of Article 79 of the Turkish Penal Code. Regarding this matter:
“…Although the crime of migrant smuggling is set out in Article 79 of the Turkish Penal Code, it is not explicitly defined therein. It is defined in Article 3 of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, as ‘the procurement of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident, in order to obtain, directly or indirectly, a financial or other material benefit.’ Article 3 of Protocol No. 4 to the European Convention on Human Rights also stipulates that no one shall be deprived of the right to enter the territory of the State of which they are a national.
Considering these provisions and the fact that the foreign national has agreed with the defendant in order to go to the country of which they are a citizen, it is understood that such a foreigner does not constitute the subject of the crime defined in Article 79 of the Turkish Penal Code, and that the legal elements of migrant smuggling have not been fulfilled in the concrete case. Taking into account the settled case-law of our Chamber that ‘illegally bringing a person into the territory of the State of which they are a national’ does not constitute the crime of migrant smuggling, the defendant should have been acquitted pursuant to Article 223/2-a of the Code of Criminal Procedure, whereas a conviction was rendered on inappropriate grounds…”
(Court of Cassation 4th Criminal Chamber, 2022/4591 E., 2022/8192 K., 23.03.2022)
4- Legal Interest Protected by the Crime:
The crime of migrant smuggling is regulated under the heading “International Crimes” in the Turkish Penal Code. The legal interests protected by this crime are primarily the bodily integrity and property rights of migrants, as well as international public order and the public order of society.
5- Mens Rea (Subjective Element):
The crime can only be committed intentionally; it is not legally possible to commit it by negligence. For the crime to occur, the perpetrator must act with the purpose of obtaining, directly or indirectly, material benefit. Acts performed without the intent of obtaining material benefit cannot constitute the crime.
For the formation of the crime, it is not necessary that material benefit is actually obtained; even if no material benefit is obtained, it is sufficient that the perpetrator acted with the intent of obtaining such benefit.
Aggravated form of the crime
The crime of migrant smuggling regulated under Article 79 of the Turkish Penal Code is also provided with aggravated forms that require harsher penalties in certain circumstances. According to the aggravated circumstances specified in the second and third paragraphs of the article; if the crime of migrant smuggling endangers the lives of the victims or is committed through degrading or humiliating treatment, the penalty to be imposed shall be increased by from one-half up to two-thirds; if the crime is committed jointly by more than one person, the penalty shall be increased by up to one-half; and if it is committed within the framework of an organization’s activities, the penalty shall be increased by from one-half up to one fold.
The case where the crime remains at the stage of attempt
Article 79/1 of the Turkish Penal Code provides that: “Even if the crime remains at the stage of attempt, a penalty shall be imposed as if the crime had been completed.” In accordance with the statutory provision, the crime shall be deemed completed even if the acts suitable for its execution have not been fully carried out.
“…In the migrant smuggling acts of the defendants, pursuant to Article 79/2 of the Turkish Penal Code as amended by Article 6 of Law No. 6008 in force at the time of the offense, a penalty should have been imposed as if the crime had been completed even though it remained at the stage of attempt; however, an incomplete sentence was determined by applying a reduction due to attempt in the defendants’ penalties…”
(Court of Cassation 18th Criminal Chamber, 2020/1131 E., 2020/8519 K., 02.07.2020)
Differences between the crime of migrant smuggling and the crime of human trafficking
Article 80 of the Turkish Penal Code:
Any person who, for the purposes of forcing individuals into labor, compelling them to provide services, forcing them into prostitution, subjecting them to servitude, or securing the removal of their body organs, brings persons into the country, takes them out of the country, procures them, kidnaps them, transports them from one place to another, transfers them, or harbors them by using threats, pressure, coercion or violence, abusing influence, deception, or by taking advantage of control over persons or their helplessness to obtain their consent, shall be sentenced to imprisonment from eight to twelve years and a judicial fine of up to ten thousand days.
(2) Where the acts constituting the offense are committed for the purposes specified in the first paragraph, the consent of the victim shall be deemed invalid.
(3) In cases where persons under the age of eighteen are procured, kidnapped, transported from one place to another, transferred, or harbored for the purposes specified in the first paragraph, the offender shall be sentenced to the penalties provided in the first paragraph even if none of the means of commission listed above have been used.
(4) Security measures shall also be imposed on legal entities in relation to these offenses.
Although the crime of human trafficking regulated under Article 80 of the Turkish Penal Code involves similar material acts to the crime of migrant smuggling regulated under Article 79, there are differences between the two offenses. According to the established case law of the Court of Cassation, the criteria for determining the differences between these two crimes are as follows:
- In terms of intent (mens rea): In the crime of migrant smuggling, the perpetrator’s intent is the purpose of obtaining material benefit. In contrast, in the crime of human trafficking, the perpetrator acts with the purpose of “forcing individuals into labor, compelling them to provide services, forcing them into prostitution, subjecting them to servitude, or securing the removal of their body organs.”
- In terms of continuity: In the crime of migrant smuggling, the offense is completed and terminated once the perpetrator carries out any of the alternative acts. In contrast, in the crime of human trafficking, even if the victim is transported from one place to another, they remain under the control of the perpetrator, and continuous exploitation is involved.
- In terms of the victim’s consent: In the crime of migrant smuggling, the victim’s consent is present; however, in the crime of human trafficking, the victim’s consent is absent, and the situation involves threats, pressure, coercion, or violence.
Complaint period, statute of limitations, and competent court
The offense regulated under Article 79 of the Turkish Penal Code is not subject to complaint, and investigative proceedings are carried out ex officio by the public prosecutor’s office. The competent court is the Criminal Court of First Instance.
Decision on judicial fine, suspension of sentence, and deferral of the announcement of the verdict
According to Article 79 of the Turkish Penal Code; any person who, directly or indirectly, for the purpose of obtaining material benefit, unlawfully brings a foreigner into the country, enables a foreigner to remain in the country, or enables a Turkish citizen or a foreigner to leave the country, shall be punished with imprisonment from five to eight years and a judicial fine ranging from one thousand to ten thousand days. If this crime is committed within the scope of a legal entity’s activities, security measures specific to legal entities shall be imposed on the legal entity.
Considering the minimum and maximum limits of the penalty; it is not possible to convert the imprisonment into a judicial fine, nor to issue a decision on the deferral of the announcement of the verdict (HAGB) or the suspension of the sentence.
Other decisions
“…In the incident where the defendant was caught in Bilecik while transporting 16 irregular Syrian migrants, who had been brought into the country by a person named Abu Ali (whose full identity details could not be determined) in exchange for material benefit, from the Reyhanlı district to Istanbul; considering the statements of the migrants indicating that the person who smuggled them into the country for material benefit had first kept them in a tent for three days, after which they boarded the minibus driven by the defendant, arranged by that person, and that the defendant instructed them to say that they had boarded the vehicle from Bozüyük when stopped by law enforcement during the journey; it has been concluded that the defendant’s act of bringing Syrian irregular migrants into the country in cooperation with a person whose identity could not be clearly determined constitutes the crime of migrant smuggling, and therefore the acquittal decision based on unlawful and inappropriate reasoning was found to be contrary to law…”
(Court of Cassation 4th Criminal Chamber, 2024/1294 E., 2025/6710 K., 15.04.2025)
“…In the concrete case; in the case filed against the defendant on the allegation that on 11.09.2012, while attempting to depart to … at Terminal 2 of the International Departures section of … Airport, a forged … visa was detected in his passport during passport control; in his defense, the defendant stated that he was a citizen of …, that due to the unrest in …, he and his family had taken refuge in Turkey, that while staying with relatives in the province of …, an unknown person told all family members, including himself, that he could obtain European visas for them, that his father met with this person, that in exchange for obtaining the visas his father paid 700,000 … lira to that person, that on the day of the incident they were picked up from … and taken to the … airport, where their passports with visas and their tickets were handed to them, and that all family members were caught before they could board the plane, and that he did not know the visa was forged; in view of these circumstances, in order to establish the truth beyond doubt, and to determine whether the defendant falls within the scope of the crime of migrant smuggling, and in this context to assess his intent regarding the offense of forgery, it should have been investigated whether there were migrant individuals who, around the same dates, attempted to leave the country using forged documents from the same airport and were apprehended; if so, whether cases were filed against those individuals, the defendant’s family, and the person who arranged the forged visas and brought them to the airport; all related case files and documents should have been obtained and their statements examined, and it should have been determined whether the defendant was involved in acts falling within the scope of migrant smuggling and document forgery under the relevant Protocol. Instead, rendering a decision with incomplete examination is contrary to law…”
(Court of Cassation 11th Criminal Chamber, 2014/8657 E., 2016/6223 K., 29.06.2016)
“…In view of the entire case file, the incident and arrest report dated 17.01.2018, the statements of the migrant individuals, identification reports, the response letter of the Hatay Migration Administration, and the defenses of the defendants, it has been found that there is no error in the assessment and reasoning of the Regional Court of Appeal, which rendered convictions on the grounds that the joint acts of the defendants—namely, the defendant … sheltering Syrian migrants without temporary protection status in his residence in Hatay for one week, and thereafter the co-defendant … attempting to transport these migrants from Hatay Province to Ankara Province—constitute the crime of migrant smuggling. It has been determined that the essential elements justifying the conclusion reached with respect to the migrant smuggling acts attributed to the defendants, and that these acts were committed by the defendants, were established through lawfully conducted proceedings; that all evidence, allegations, and defenses raised at various stages were fully and properly presented in a manner allowing appellate review, discussed without altering their essence; that the judicial conviction was based on definite, consistent, and non-contradictory evidence; that the acts were correctly qualified and corresponded to the statutory definition of the offense; and that the penalties were lawfully applied. Accordingly, no illegality has been found in the examination with respect to other grounds of appeal…”
(Court of Cassation 4th Criminal Chamber, 2024/3554 E., 2025/6071 K., 07.04.2025)
“…Although the crime of migrant smuggling is set out in the article with its elements, it is not explicitly defined therein. It is defined in Article 3 of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, as ‘the procurement of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident, in order to obtain, directly or indirectly, a financial or other material benefit.’ According to Article 3 of Protocol No. 4 to the European Convention on Human Rights, no one shall be deprived of the right to enter the territory of the State of which they are a national. In the concrete case under review; in the incident where migrants of Nakhchivan/Azerbaijan nationality hid in the cargo area of the defendant’s vehicle in order to reach the country of which they are citizens and were apprehended by law enforcement officers during transit, it is understood that these migrants do not constitute the subject of the offense defined in Article 79 of Law No. 5237, and therefore the legal elements of the crime of migrant smuggling have not been fulfilled. Accordingly, while the defendant should have been acquitted, the conviction rendered is contrary to law, and the request for reversal in the interest of the law has been found justified…”
(Court of Cassation 4th Criminal Chamber, 2024/11873 E., 2025/2922 K., 18.02.2025)
“…Considering that the defendant denied the charges, that neither the irregular migrants nor the other perpetrators of the offense (other than …) provided any statements indicating the defendant’s involvement in migrant smuggling, that although the organization leader … stated in his testimony that he had face-to-face and telephone conversations with the defendant regarding migrant smuggling, there was no indication that these conversations were related to the migrant smuggling act carried out on 09/06/2015, and this could not be inferred from the TAPE recordings either; moreover, the last recorded conversations in the TAPE content date back to 26/05/2015, and the face-to-face meeting was determined to have taken place on 25/05/2015; in a case file involving numerous migrant smuggling acts, only a single act is attributed to the defendant; and given that no additional evidence could be obtained from the file indicating that the defendant committed the alleged act between the date of the last phone conversation (26/05/2015) and the commission of the act, a conviction was rendered in violation of Article 230/1-b of the Code of Criminal Procedure without clearly specifying the evidence that establishes, beyond any reasonable doubt and sufficient for conviction, that the defendant committed the crime of migrant smuggling.
2- Even if accepted otherwise; in determining the base sentence, the manner of commission of the offense, the degree of the offender’s intent-based fault, the circumstances of the incident, and the number of migrants should have been taken into account for aggravated sentencing, which was not considered. Since this is contrary to the law and the grounds of appeal raised by the defendant … are found to be justified, the judgment is REVERSED contrary to the opinion in the prosecutor’s report…”
(Court of Cassation 18th Criminal Chamber, 2019/636 E., 2019/6676 K., 03.04.2019)
“…1- With regard to the judgments established against defendants …, …, …, … and … for the offense of migrant smuggling; based on the occurrence and the case file, although there is no concrete evidence that the defendants brought the deceased persons and victims into our country from abroad, it has been understood that they reached an agreement for material gain with the deceased persons and victims who had entered our country through illegal means, to transport them from … province to Greece. In line with this agreement, the victims and deceased persons were transported from … province to Istanbul without any stop in an enclosed truck; upon their arrival at Furkan Farm in Istanbul, it was understood that the deceased persons had already died, and following defendant …’s report of the incident to law enforcement, it was concluded that the defendants’ acts remained at the stage of attempt. Therefore, instead of rendering a written judgment, the defendants …, …, …, … and … should have been sentenced pursuant to Articles 79/1-a-last sentence, 35, and 43 of Turkish Penal Code No. 5237.
2- With regard to the judgments established against defendants …, … and … for the offense of causing death by conscious negligence; based on the case file, the victim migrants and deceased migrants were transported by the same route to …, then across the lake in …, and from there loaded into a truck with an unidentified license plate. Following a journey lasting 17–18 hours without interruption, they were brought to the incident site near Furkan Farm belonging to defendant …. When the truck was stopped and its rear doors were opened, the exhausted migrants disembarked; however, the deceased migrants remaining at the rear of the truck trailer died due to asphyxia caused by lack of oxygen in an enclosed environment, according to the autopsy reports of the Morgue Specialty Department of the Council of Forensic Medicine. The surviving migrants who got off the truck ran toward defendant …’s farm. At that time, defendants … and … were present at the farm, and defendant … fled the scene because some of the migrants brought by the truck had died, while defendant … called the police to report the deaths. It is understood that defendants …, … and … fled the scene together with the truck carrying the smuggled migrants.
In this incident, it should have been considered that defendants …, … and … were in a position to foresee that the migrant victims might die; therefore, they should have been deemed to have acted with possible intent. Without considering that separate applications (13 times) of Articles 81 and 21/2 of the Turkish Penal Code should have been made for their acts against the deceased, the judgment was rendered in writing, which requires reversal. For this reason, the objections raised in the defendants’ counsels’ appeals were found to be justified, and the judgments are hereby PARTIALLY REVERSED as in the opinion stated in the prosecutorial report…”
(Court of Cassation 1st Criminal Chamber, 2019/631 E., 2021/11035 K., 22.06.2021)
“…In the concrete case under review; in the incident where a migrant named Kenan Mehdiyev hid in the trunk of the defendant’s vehicle in order to go to the country of which he is a citizen and was apprehended by law enforcement officers during the crossing, it has been understood that since the said migrant does not constitute the subject matter of the offense defined in Article 79 of the Turkish Penal Code, the legal elements of the crime of migrant smuggling have not been established. Therefore, instead of acquitting the defendant pursuant to Article 223/2-a of the Code of Criminal Procedure, the decision to convict him based on insufficient reasoning is unlawful…”
(Court of Cassation 18th Criminal Chamber, 2020/970 E., 2020/7492 K., 16.06.2020)
“…It is understood from the entire case file, including the incident report, investigation, identification and physical surveillance reports, communication interception records, arrest and search reports, the incident detection report dated 18.03.2008, the law enforcement statement of defendant …, and the statements of witnesses … and … during the investigation phase, that the defendants …, …, …, …, …, …, … and …, who gathered under the leadership and control of defendant …, acted in concert with a unity of action and intent for the purpose of committing migrant smuggling.
In this context, it has been established that defendant … engaged in activities aimed at enabling persons to leave the country illegally in order to obtain material gain, and directed the other defendants through his orders and instructions in the execution of these activities, ensured coordination, communication, and division of labor among the defendants, and thus led the organization. It has also been determined that defendants …, … and … recruited individuals wishing to leave the country illegally into the organization; defendants …, … and … undertook the task of transporting migrants through illegal means; and defendants … and … provided vehicles and drivers for transporting migrants.
On 18.03.2008, while defendant … was attempting to illegally transport 23 foreign nationals—who had been arranged by defendant … using a vehicle provided by defendant …—to leave the country, he was apprehended. In this manner, it is evident that the elements of the organization’s criminal purpose, hierarchical structure, and continuity were established. It is further understood that the defendants acted in a disciplined manner within a framework of cooperation and functional division of labor, took measures to ensure confidentiality among themselves, and continued their organizational relations and activities until their apprehension, as reflected in the incident report, investigation, identification and physical surveillance reports, communication interception records, arrest and search reports, the incident detection report dated 18.03.2008, the law enforcement statement of defendant …, and the statements of witnesses … and … during the investigation phase, as well as the entire case file.
Accordingly, while defendant … should have been convicted of establishing an organization for the purpose of committing a crime and attempted migrant smuggling; defendants …, … and … should have been convicted of membership in an organization established for the purpose of committing a crime and attempted migrant smuggling; and defendants …, …, …, …, and … should have been convicted of membership in an organization established for the purpose of committing a crime, the acquittal decisions rendered with written reasoning due to an erroneous evaluation of the evidence are contrary to the law…”
(Court of Cassation 9th Criminal Chamber, 2013/11248 E., 2014/3978 K., 04.04.2014)
“…In the concrete case, where it is alleged and accepted that the defendants, acting in unity of intent and action, committed the offense of forgery in official documents by falsely creating and using the motor vehicle registration and traffic documents and license plates of the vehicle bearing plate number …..; in their defenses, the defendants stated that they did not accept the charges brought against them. Considering that the vehicle in which the forged plates and documents were prepared was seized while under the control of …, and it was understood that the defendants were not present in the vehicle; although the defendants were tried and convicted for the offense of migrant smuggling, the elements of the offense of forgery in official documents and the offense of migrant smuggling are different, and the fact that the defendants committed migrant smuggling does not mean that they also committed forgery in official documents.
In this regard, without demonstrating what concrete evidence exists—apart from the conviction for migrant smuggling—regarding the defendants’ commission of the offense of forgery in official documents, and without discussing in the reasoning section how the offense of forgery in official documents was constituted, the legal status of the defendants should have been determined accordingly. However, judgments were rendered in writing based on incomplete examination…”
(Court of Cassation 4th Criminal Chamber, 2022/4591 E., 2022/8192 K., 23.03.2022)
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
