The crime of migrant smuggling is an elective mobile crime and is a crime that occurs when one of the movements considered a substance occurs. If a foreigner is introduced into the country using illegal ways, a foreigner is allowed to stay in the country through illegal ways, or a Turkish citizen or a foreigner is allowed to go abroad through illegal ways, the crime of migrant smuggling will occur. A crime is a crime to remain in the country to allow free-moving and can make two types of person: the person entered the country under the patronage of the country and others may be taken by the person duly duly received the necessary permissions to stay in the country even though it is a place to stay and by someone the person has been provided a fake ID may be given.
The moral element of the crime of migrant smuggling is that the purpose of carrying out one of the selective movements is to obtain a material benefit directly or indirectly. Therefore, the crime can only be committed with a special caste. If the perpetrator intended to obtain moral benefits, then the “crime of migrant smuggling” will not occur. As a matter of fact, the Supreme Court also has established decisions in this direction. In addition, there is no doubt that if migrants are brought into a country for purposes such as forced labor, prostitution or captivity, the crime of trafficking in human beings will constitute. On the other hand, the consent of the victim does not prevent the occurrence of this crime, and consent will not eliminate the illegality.
The commission of a migrant smuggling crime within the framework of an organizational activity, the exposure of victims to degrading treatment or the occurrence of a danger to their lives are considered qualified cases of the crime. Also, in the event that this crime was committed within the framework of the activity of a legal entity, TCK m.according to 79/4, security measures specific to legal entities are provided for. Finally, although it is possible to participate in this crime, those who have established functional sovereignty over the processing of the act that caused the crime will be held responsible as joint perpetrators.
TCK m on how to punish the basic state of the crime of migrant trafficking.it is included in 79/1. Accordingly, directly or indirectly, in order to obtain material gain or importation of illegally stay in the country with the provision of a stranger or stranger when the perpetrator to go abroad to a Turkish citizen from 3 years to 8 years to enable it provides with imprisonment of ten thousand, until the day a judicial penalty is given.
2nd of the same article In the paragraph, the qualified cases of the crime are considered. Accordingly, the punishment that will be given if the lives and bodily integrity of migrants are endangered or subjected to degrading treatment is increased from half to 2/3. In addition, if this crime has been committed within the framework of the activities of an organization, the penalties that will be imposed will increase by half.According to the Supreme Court, there are some conditions that must be found in order to mention the existence of an organization. These; the number of members should be at least 3, the existence of a hierarchical relationship between members, the fact that people are united to commit crimes, this merger is continuous in nature, and the structure of the organization is conducive to decriminalizing migrant trafficking in terms of the number of members and tools. However, if these conditions exist, the crime of migrant smuggling committed will be considered committed within the framework of a criminal organization and the punishment will be increased.
If this crime is attempted, it covers the condition that the perpetrator cannot complete the crime for reasons that he does not have, even though he acted to complete the crime.
