Legal Definition of the Crime
The Crime of Human Trafficking is regulated under Article 80 of the Türk Ceza Kanunu under the title “International Crimes.” The relevant provision reads as follows:
TCC Article 80 –
(1) Any person who, for the purpose of forcing someone to work, to provide services, to engage in prostitution, to be subjected to slavery, or to ensure the removal of organs, by means of threat, pressure, coercion or violence, abuse of influence, deception, or by taking advantage of control over a person or their vulnerability, recruits, abducts, transports from one place to another, transfers, harbors, brings into the country, or takes out of the country such persons by obtaining their consent through these means, shall be sentenced to imprisonment from eight to twelve years and to 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 recruited, abducted, transported from one place to another, transferred, or harbored for the purposes specified in the first paragraph, the penalties prescribed in the first paragraph shall be imposed on the offender even if none of the instrumental acts related to the offense have been used.
(4) Security measures shall also be imposed on legal entities in relation to these offenses.
Elements of the Crime
When the Crime of Human Trafficking is evaluated together with both its objective and subjective elements, it consists of the following fundamental components:
1- Perpetrator:
The relevant legal provision does not require any special qualification for the perpetrator; therefore, anyone can be the offender of this crime.
2- Victim:
In terms of this offense, the victim may be any person forming part of society.
3- Act (Conduct) Element:
Under Article 80 of the Türk Ceza Kanunu, the act element consists of bringing a person into the country, taking them out of the country, recruiting, abducting, transporting from one place to another, transferring, or harboring them by impairing the victim’s will for the purpose of forcing them to work, provide services, engage in prostitution, be subjected to slavery, or to ensure the removal of their organs.
The offense is a crime of alternative acts, and the realization of any one of these alternative acts is sufficient for the crime to be constituted.
4- Legal Interest Protected by the Crime:
The Crime of Human Trafficking is regulated under the title “International Crimes” in the Turkish Penal Code. The primary legal interests protected by this offense are individuals’ right to life and liberty, as well as international public order and security.
5- Mental Element:
The crime can only be committed intentionally; it cannot be committed through negligence. For the offense to be established, the perpetrator must act with the purpose of forcing the victim to work, provide services, engage in prostitution, be subjected to slavery, or to ensure the removal of organs. If the perpetrator acts for a purpose other than these, their conduct cannot be evaluated within the scope of Article 80 of the Turkish Penal Code.
In Case the Victim Is a Child
The effect of the offense on children is addressed under Article 80/3 of the Türk Ceza Kanunu. Pursuant to the relevant provision, in the crime of human trafficking, if the victim is a child, the perpetrator’s acts shall constitute the offense of human trafficking even if none of the instrumental acts are used.
The term instrumental acts refers to acts that impair the victim’s will. As stated in the text of the law, these include: threat, pressure, coercion, violence, deceptive and fraudulent conduct, abuse of influence, and taking advantage of the victim’s vulnerability or lack of supervision.
Where the victim is a child, the legislator has not required the presence of these instrumental acts for the formation of the crime; it is emphasized that the perpetrator’s acts shall constitute an offense even if the victim has given consent.
In this regard, a decision of the Yargıtay 4. Ceza Dairesi dated 20.06.2023 states:
“…In light of these explanations, where the defendants recruited, transported from one place to another, transferred, or harbored victims who had not yet reached the age of 18 as of the date of the offense and were therefore considered children, for the purpose of prostitution, the crime of human trafficking as regulated in paragraph one of Article 80 of the aforementioned Law is deemed to have been constituted, even if none of the instrumental acts related to the offense were resorted to…”
(2023/7125 E., 2023/20120 K.)
ŞİKAYET SÜRESİ, ZAMANAŞIMI VE GÖREVLİ MAHKEME
TCK m. 80 kapsamında düzenlenen işbu suç, şikayete tabi olmayıp soruşturma işlemleri savcılık tarafından re’sen gerçekleştirilir. Suçun soruşturulması için şikayet süresi olmamasına rağmen dava zamanaşımı 15 yıllık süreye tabidir. Görevli ve yetkili mahkeme ise suçun işlendiği yer Ağır Ceza Mahkemesi’ dir.
Judicial Fine, Suspension of the Sentence, and the Decision to Defer the Announcement of the Verdict (HAGB)
Pursuant to Article 80 of the Turkish Penal Code (TPC); any person who, for the purpose of forced labor, servitude, prostitution, enslavement, or the removal of organs, recruits, brings into the country, takes out of the country, procures, kidnaps, transports from one place to another, transfers, or harbors persons by means of threat, pressure, coercion or violence, abuse of authority, deception, or by taking advantage of control over persons or their vulnerability in order to obtain their consent, shall be punished with imprisonment from eight to twelve years and a judicial fine of up to ten thousand days. If this offense is committed within the scope of the activities of a legal entity, security measures specific to legal entities shall be imposed.
Considering the minimum and maximum limits of the penalty, it is not possible to convert the imprisonment into a judicial fine, to render a decision on the deferment of the announcement of the verdict (HAGB), or to suspend the sentence.
SUPREME COURT DECISIONS
“…The defendant denied the charge, stating that he lived in the same house as the other defendants, that he was someone who worked in nightclubs like the victim, that they had argued prior to the incident because the victim had stolen his belongings, and that he was therefore being falsely accused.
In her testimony before the court, the victim stated that the person who deceived her and brought her into the country and directed her into prostitution was the defendant …, whose conviction has become final, and that the person who forced her to work in nightclubs by using coercion was the defendant …, whose conviction has also become final. She further stated that the present defendant … did not mediate her prostitution and did not engage in any negative conduct toward her, thereby retracting her statement given during the investigation phase. When asked about this contradiction, she indicated that her statement before the court was accurate. Moreover, the other defendants, in their statements, did not assert that the alleged offense had been committed by the defendant.
In light of the absence of any certain, conclusive, and sufficient evidence beyond all reasonable doubt that the defendant committed the offense of human trafficking, it was deemed unlawful to render a conviction based on the victim’s police statement—which she later changed and which was not supported by concrete evidence—by relying on improper reasoning…” (Supreme Court 4th Criminal Chamber, 2022/4635 E., 2024/17951 K., dated 26.12.2024).
“…According to the case file, the defendants denied the charges at all stages of the proceedings. The victim … stated: ‘A person named … called me and said that I could earn a lot of money if I engaged in prostitution and that he would give my number to …. I accepted. … called me and asked if I would come to Alanya; I agreed. … picked me up from the bus station and took me to the house where I would stay. I only know ….’ In this statement, she did not describe any actions by the defendants that could constitute the offense of human trafficking against her.
Similarly, the victim … stated: ‘My friend and I went to the person I knew as …. A person nicknamed “Yellow …” picked us up from the bus station. When we first met these individuals, they told us that they provided foreign women to men in exchange for money. They asked us how we would pay the rent. He was sending other girls to men. … made me his girlfriend. “Yellow …” only brought me the things I needed. They kept stalling us by saying they would find us jobs in hotels. … covered all my expenses. I knew what kind of work they were doing, and since I was desperate, I was with …. I only know … as an employee at the residential complex where I stayed.’ In this statement as well, there is no description indicating that she was brought into the country, taken out of the country, recruited, abducted, transported, transferred, or harbored by the defendants for the purpose of prostitution through threat, pressure, coercion, or violence.
Furthermore, within the scope of Article 80 of the Turkish Penal Code, the concept of “desperation” requires an assessment of whether the victim was in a situation of unavoidable helplessness—such as having no means to sustain life or no alternative place to stay or go—and for this condition to be accepted, the victim must have been in a state of distress that she could not overcome. Considering the entire case file, it cannot be concluded that the victims were in such a state of desperation.
Without taking into account the absence of any certain and conclusive evidence, beyond all reasonable doubt, that the defendants committed the offense of human trafficking against the victims … and …, and without considering that there was insufficient definite evidence to justify punishment, a written judgment was rendered instead of an acquittal.
b) With respect to the acts of the defendants …, …, and … against the victims … and …, and the acts of defendant … against victim …: In criminal proceedings, the fundamental condition for convicting a defendant is that the offense must be proven with certainty, leaving no room for doubt. Events and allegations whose manner of occurrence is doubtful and not fully clarified cannot be interpreted against the defendant to establish a conviction. A criminal conviction must be based not on probability or assumption but on clear and definitive proof obtained during the trial. Such proof must be so clear as to leave no doubt or possibility of an alternative explanation.
In light of these explanations, although the communication records and the entire case file leave no doubt that the defendants acted together in committing the offense of prostitution, it was not considered that there was any definite and sufficient evidence, free from all doubt, capable of establishing both the purpose and means elements required for the offense of human trafficking in relation to the victims.
Accordingly, finding the grounds of appeal submitted by the Regional Court of Justice Public Prosecutor and by the defense counsels of defendants …, …, …, and … to be well-founded, and contrary to the opinion in the notification, and without examining other aspects regarding the judgments established against defendant … in relation to the acts of human trafficking and prostitution against victim …, while finding no other grounds in respect of the remaining provisions, it was decided that THE JUDGMENTS BE REVERSED…” (Supreme Court 4th Criminal Chamber, 2021/32130 E., 2021/30020 K., dated 22.12.2021).
“…While the defendant … should have been sentenced separately for each victim for the offense of human trafficking, it was decided to impose a single sentence for this offense.
b) In the statement given by the victim … before the public prosecutor, she stated that she was forced to have sexual intercourse with two persons. In the interrogation statement of the defendant … dated 28/09/2010, he indicated that the victim engaged in prostitution with men, and in his statement given before the prosecutor on 28/09/2010, he stated that the victim had sexual intercourse with six persons. In light of these statements, it was not taken into consideration that, since the defendants committed the offense of prostitution against the victim … multiple times at different times, Article 43/1 of the Turkish Penal Code (concerning chain offenses) should have been applied.
This was found to be contrary to law, and as the grounds of appeal submitted by the defense counsels of defendants … and …, as well as by the attorney of the complainant …, were deemed well-founded, and contrary to the opinion in the notification, it was decided that THE JUDGMENTS BE REVERSED…” (Supreme Court 4th Criminal Chamber, 2021/41686 E., 2022/16565 K., dated 01.07.2022).
“…Upon the appeal by the defense counsel of the defendant against the conviction judgments rendered by the trial court for the offenses of deprivation of liberty, human trafficking, and qualified sexual abuse of a child committed against a victim under the age of fifteen, our Chamber, by its decision dated 16.02.2016 and numbered 2015/6426 Merits, 2016/1308 Decision, upheld the conviction for deprivation of liberty and reversed the judgment for human trafficking on the grounds that no duly filed indictment had been initiated.
Following the reversal, a new indictment was issued and, as a result of the subsequent trial, the defendant was sentenced to 10 years of imprisonment and a judicial fine of 20,000 TRY for the offense of human trafficking. However, considering the content of the case file, since the act of deprivation of liberty constitutes an element of the offense of human trafficking, and given that the sentence of 6 years’ imprisonment imposed for deprivation of liberty had previously been upheld and thus became final, it was necessary to deduct this sentence from the penalty imposed for human trafficking and determine the final sentence accordingly.
Rendering the judgment in the written form without taking this matter into consideration was found to be contrary to law. Therefore, as the appeal objections of the defendant’s counsel and the oral defense presented during the hearing were deemed well-founded, it was decided, pursuant to Article 8/1 of Law No. 5320 and Article 321 of the former Code of Criminal Procedure No. 1412, that THE JUDGMENT BE REVERSED…” (Supreme Court 14th Criminal Chamber, 2018/1128 E., 2019/10383 K., dated 26.06.2019).
“…Considering the hearing conducted, the evidence collected and indicated in the decision, and the content of the case file examined, and in view of the fact that it was understood that the offense of human trafficking had been committed by the defendants, no unlawfulness was found in the Court’s conviction and discretion to punish the defendants for this offense.
It was determined that the defendants deceived the victims by promising employment, thereby inducing them to come to the country, kept them in their house and harbored them within the country, and obtained financial benefit by forcing the victims into prostitution. Therefore, the appeals were not upheld…” (Supreme Court 4th Criminal Chamber, 2021/39645 E., 2024/13353 K., dated 24.10.2024).
“…For the offense of human trafficking regulated under Article 80 of Law No. 5237 to be constituted, the perpetrator must have engaged in conduct toward the victim in the form of “threat, pressure, coercion or violence, abuse of authority, deception, or obtaining consent by taking advantage of control over the person or their state of vulnerability,” and, while carrying out or after carrying out these acts, must have brought the victim into the country, taken them out of the country, recruited, abducted, transported from one place to another, transferred, or harbored them.
For the offense to occur, at least one of the means (instrumental acts) and one of the purpose (principal acts) must coexist. The instrumental acts must be committed prior to, or at the latest simultaneously with, the principal (purpose) acts. Thus, first, through the instrumental acts, the victim’s will must be overborne and apparent consent obtained; subsequently, by taking advantage of this situation, the principal acts constituting the offense must be carried out.
The sole exception to this rule is the provision set forth in paragraph 3 of Article 80 of Law No. 5237, which states that “in cases where persons under the age of eighteen are recruited, abducted, transported from one place to another, transferred, or harbored for the purposes specified in the first paragraph, the penalties set forth in the first paragraph shall be imposed even if none of the instrumental acts related to the offense have been resorted to.”
In light of these explanations, although the Regional Court of Justice rendered a reversal decision regarding the conviction established by the Court of First Instance against the defendant for the offense of child abduction and detention regulated under Article 234/3 of Law No. 5237 with respect to the complainant, considering that the offense of child abduction and detention constitutes an element of the offense of human trafficking, it was found unlawful to render a written judgment against the defendant for the offense of human trafficking without conducting a holistic evaluation of both offenses together…” (Supreme Court 4th Criminal Chamber, 2021/38611 E., 2024/16080 K., dated 04.12.2024).
“…Since the offenses of human trafficking and mediation of prostitution are independent from one another, in the offense of human trafficking committed for the purpose of prostitution, it must be assessed separately for each offense whether the instrumental acts constituting the elements of human trafficking and the acts constituting the aggravated form of prostitution are present.
In the present case; according to the manner of occurrence, the scope of the file, and the court’s findings, the proven acts of the defendants constituted the offense of human trafficking carried out by “threat, pressure, coercion or violence” as specified in Article 80/1 of the Turkish Penal Code, as well as the offense of prostitution regulated under Article 227/4 of the TPC. The offense of deprivation of liberty constitutes an element of the offense of human trafficking and, therefore, cannot be punished separately. Furthermore, the offense of human trafficking is completed upon the realization of the purpose acts; it is not mandatory that the intended offense of prostitution actually be committed. However, if such target offenses are committed, the defendants must also be punished separately for those offenses.
Without taking these considerations into account, instead of convicting the defendants separately for the established and legally constituted offenses of human trafficking and prostitution, it was decided, on improper grounds, to punish them for the offenses of prostitution together with deprivation of liberty…” (Supreme Court 18th Criminal Chamber, 2015/35622 E., 2016/6429 K., dated 30.03.2016).
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
