Criminal LawWhat are Migrant Smuggling and Human Trafficking Offences?

In the globalised world, Turkey has become an important transit route for both migrant smuggling and human trafficking crimes, especially due to its geographical location. These two offences are acts that violate human rights and the sovereignty rights of the state, which are met with serious sanctions in the international arena and in our national law. However, there are fundamental legal differences between these two offences, which are often confused among the public. In this article, we will discuss separately the offences of migrant smuggling and human trafficking regulated under the Turkish Penal Code (TCK), and explain in detail the main differences between them, their elements and the prescribed penalties.

A. The Offence of Smuggling of Migrants (Art. 79 TPC):

Definition and Legal Nature: The offence of smuggling of migrants is regulated under Article 79 of the TPC:

This offence is a crime committed against the sovereignty rights, border security and migration policies of the state. The consent of the victim (migrant) does not prevent the occurrence of this offence.

Elements of the Offence:

1. Aim to Obtain Material Benefit: The perpetrator must act directly or indirectly with the intention of obtaining a material benefit. This is the specific intent of the offence.
2. Illegal means: The offence must be committed by illegal (illegal) means.
3. Verbs
   • Allowing a foreigner to enter or remain in the country.
   • Enabling a Turkish citizen or foreigner to go abroad.
4. Victim The victim of the offence is a foreigner or a Turkish citizen who acts illegally. The consent of the victim does not affect the occurrence of the offence.

Penalty: The person who commits the offence of migrant smuggling is sentenced to imprisonment from three to eight years and a judicial fine from one thousand days to ten thousand days.

Qualified Conditions (Conditions Increasing the Penalty): Article 79/2 and 3 of the TPC regulates the qualified circumstances that increase the penalty of the offence:

• If the offence constitutes a danger to the life and health of the victims, the penalty is increased by half.
• If the offence is committed within the framework of an organisation, the penalty is increased by half.
• If the offence is committed by more than one person together, the penalty is increased by one third.

B. The Offence of Human Trafficking (Art. 80 TPC):

Definition and Legal Nature: The offence of human trafficking is regulated under Article 80 of the TPC:

This principle is also known as “ignorantia juris non excusat” and is an indispensable part of modern legal systems. The main justifications of the principle are as follows:

• Legal security: The assumption that everyone knows the law ensures stability and predictability in legal relations. Otherwise, every criminal will try to avoid punishment by saying “I did not know the law” and the legal order will become unworkable.
• Social Order: Knowledge and application of the law is essential for the preservation of social order and peace.
• Publication of Laws: Laws are announced to the public by publication in the Official Gazette and it is accepted that everyone knows the laws by this publication.

This principle means that the fact that the perpetrator does not know that the act committed is an offence does not eliminate his/her culpability or criminal responsibility. If the perpetrator acted with the intention of committing an offence while committing the act, his ignorance of the law does not save him from punishment.

The Concept and Types of Error (Article 30 of the TPC): In criminal law, an error is when the perpetrator has incorrect or incomplete information on a matter related to the act committed. Article 30 of the TPC regulates the effects of error on criminal responsibility by dividing it into different types.

1. Error in the Act (Article 30/1 of the TPC): It is the error of the perpetrator in the material elements of the act committed. For example, a person who shoots into the bushes for hunting purposes shoots a person hiding there. In this case, since the perpetrator did not intend to kill, he may be held liable for negligent homicide, not intentional homicide. Error in the act removes the intention.

2. Mistake in Person or Subject (Article 30/2 of the TPC): The perpetrator is mistaken about the victim or the subject of the offence. For example, the perpetrator accidentally kills B while intending to kill A. In this case, since the perpetrator has the intent to kill, his mistake does not affect his criminal responsibility and he is held responsible for the offence of intentional killing.

3. Error in Qualified Offences (Article 30/3 of the TPC): The perpetrator does not know that the act he/she committed constitutes a qualified offence. For example, the perpetrator who injures a person does not know that the victim is a public official. In this case, the perpetrator is held responsible for the basic form of the offence, not the qualified form.

4. Mistake of Injustice (Legal Error) (Art. 30/4 TPC): The most important exception to the principle of “ignorance of the law is no excuse” is the “mistake of law” or “legal error” regulated in Article 30/4 of the TPC.

• Definition: A mistake of wrongfulness is the failure of the perpetrator to know that the act committed by him is unlawful, i.e. constitutes an offence. However, this ignorance must be “inevitable”.
• Inevitable Error: In order for the error to be considered unavoidable, the perpetrator must not have the opportunity to learn that his/her act is unlawful, despite all care and diligence. This situation is recognised in extremely exceptional cases. For example:
  • The perpetrator coming from a foreign country and not being able to learn that an act, which is considered normal according to the legal system of that country, is an offence in Turkey despite all his/her researches.
  • In cases where the laws have changed very recently and have not yet been sufficiently publicised, and the perpetrator does not have the opportunity to obtain information on this issue.
  • He or she committed the offence by receiving incorrect legal information from an authorised authority (e.g. a lawyer or administrative body) and had no way of knowing that the information was incorrect.
• Consequence: If the error is unavoidable, the perpetrator is not punished. This is considered as a reason that removes the culpability of the perpetrator.
• Avoidable Error: If the error is avoidable, i.e. if the perpetrator could have learnt that his/her act was unlawful if he/she had paid more attention and care, the penalty is reduced.

Application Area and Limits of Wrongful Error: Since the mistake of injustice is an exception to the principle of “ignorance of the law is no excuse”, its field of application is quite narrow and is subject to very strict conditions by the Court of Cassation. The Court of Cassation considers all concrete conditions such as the perpetrator’s level of education, profession, social environment, the nature of the act and the possibilities of obtaining information when assessing whether a mistake is unavoidable. In general, a person’s claim that he or she does not know the laws of his or her own country is not considered an inevitable mistake.

Examples:

• Inevitable Error Example: If A, who is a citizen of a country, commits an act that is legal in his/her home country but constitutes a criminal offence in Turkey, after arriving in Turkey, without learning that this act is a criminal offence despite all legal advice and research, he/she may be considered to have committed an unavoidable mistake.
• Example of Avoidable Error: If a person claims that he/she did not know that driving under the influence of alcohol is an offence, this is not considered an unavoidable mistake. This is because this is a legal rule that is within general knowledge and can be easily learnt.

The principle of“ignorance of the law is no excuse” is an indispensable principle that forms the basis of the rule of law and social order. Pursuant to this principle, a person who commits an act cannot escape punishment by claiming that he/she did not know that the act was an offence. However, the Turkish Criminal Code regulates an exceptional situation known as “mistake of law” or “legal error”. If a person does not inevitably know that the act he/she has committed is unlawful, i.e. constitutes an offence, despite all due care and diligence, he/she shall not be punished. This situation is very difficult to prove and all the circumstances of the concrete case are meticulously assessed by the courts. For this reason, it is vital that people who are faced with a legal error allegation or who are hesitant about this issue should seek legal advice from an expert criminal lawyer in order to prevent loss of rights and take the right legal steps.