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Turkey: People Smuggling to Be Classified as Terrorist Act

(Mar. 9, 2016) Turkey’s Deputy Prime Minister, Numan Kurtulmus, announced on February 1, 2016, that Turkey was considering imposing heavier sentences for the offense of people smuggling, classifying it as a terrorist act and as an organized crime, and amending the law to include as a penalty the confiscation of assets used in such acts.  The measures are part of a draft law on border security aimed at curbing the flow of illegal migration and stopping casualties brought about by people smugglers.  (Turkey to Consider Human Trafficking as Terror Crime to Curb Illegal Migration, DAILY SABAH (Feb. 1, 2016).)

Kurtulmus stated that “a draft law on maintaining border security and preventing human trafficking will soon be presented to Parliament” but in the interim “a cabinet decree was signed for effective border control and coordination among institutions.” (Id.)

Current Provisions on Smuggling and Trafficking

A smuggler of human beings is defined under Turkey’s Penal Code as anyone “who, by illegal means and with the purpose of obtaining, directly or indirectly, a material gain: a) enables a non citizen to enter, or remain in, the country, or b) enables a Turkish citizen or a non citizen to go abroad … .”   TÜRK CEZA KANUNU/TURKISH PENAL CODE, art. 79(1), at 227 (Ankara, 2007) (bilingual Turkish-English translation); Türk Ceza Kanunu, Law No. 5237 (Sept. 26, 2004, as last amended Dec. 11, 2015, to take effect on Dec. 11, 2016), MEVZUAT.) The punishment for crimes of people smuggling, upon conviction, is a sentence of imprisonment for three to eight years and a judicial fine of up to 10,000 days.  (TÜRK CEZA KANUNU/TURKISH PENAL CODE, art. 79(1)(c), at 227.)

A judicial fine is an amount payable by the offender to the State Treasury, calculated by multiplying the number of days, to be more than 5 but not more than 730 unless otherwise stipulated by law, by a determined daily amount.  (Id. art. 52(1), at 153.)  The daily amount is a minimum of TL20 (about US$7) and a maximum of TL100 and will be determined on the basis of the personal and economic situation of the offender.  (Id. art. 52(2), at 154.)

Under the draft law, people smuggling may be defined, according to the Deputy Minister, “as ‘a catalogue crime’ [under article 13 of the Code], which automatically grants arrest and carries hefty sentences.”  (Turkey to Consider Human Trafficking as Terror Crime to Curb Illegal Migration, supra.)  If the crime is committed as part of the activities of a criminal organization, the imposable penalty is increased by one half.  (TÜRK CEZA KANUNU/TURKISH PENAL CODE, art. 79(2), at 228.)  Catalogue crimes apply to certain types of (listed) offenses committed in a foreign country by a citizen or a non-citizen of Turkey.  (Id. art. 13, at 64-65.)

In contrast, human trafficking is an offense that applies to

Any person who procures, kidnaps, harbours, conveys or transports a person from one place to another or brings a person into the country or takes a person out of the country by using threat or violence, deceit, abuse of influence, or consent through exploitation of the other person, by (1) the use of threat, pressure, force or violence, (2) employing deceit, (3) abusing his influence, or (4) obtaining a consent by exploiting control over another or the desperation of such other, for the purpose of forcing them into prostitution or to work provide a service, harvest their organs or to subject them to slavery. (Id. art. 80(1), at 230.)

The punishment upon conviction of the crime of human trafficking is imprisonment for from eight to twelve years and a judicial fine of up to 10,000 days. (Id.)

Action Plan

In addition to increasing the penalties for people smuggling, the government has formulated a new Action Plan Against Human Smuggling. Kurtulmus stated that the Plan is to be disclosed “soon” and is expected to decrease “the flow of tens of thousands of refugees every year.”  (Turkey to Consider Human Trafficking as Terror Crime to Curb Illegal Migration, supra.)  The plan will outline coordination among the police, Coast Guard, gendarmerie, local governorates, and other law enforcement-related bodies, to establish “strict coordination in the field especially in areas where smuggling is prevalent,” according to Kurtulmus.  (Id.)

Other measures to combat people smuggling and illegal migration include “capacity building for the Coast Guard – the task force at the forefront of efforts to intercept the migrants – and the establishment of a police department specialized in human smuggling.” (Id.)  There are also plans to increase intelligence sharing with EU counterparts.  (Hilal Köylü, Can Human Trafficking Be Prevented?, DEUTSCHE WELLE TÜRKÇE (Feb. 11, 2016) (in Turkish).)

Cooperation Agreements

Turkey has signed or plans to sign cooperation agreements to combat people smuggling, human trafficking, and illegal migration. For example, it was announced on February 24, 2016, that Turkey and Germany had on February 23 signed “three joint declarations on cooperation in the fields of migration, border policing and fighting migrant smuggling and terrorism,” and on that basis “the Federal Ministry of the Interior and the Turkish Interior Ministry will intensify their cooperation and expand the exchange of experts in border management, irregular migration and counter-terrorism, among other things.”  (Press Release, German Federal Ministry of the Interior, Germany and Turkey Sign Joint Declarations (Feb. 24, 2016); 3 Important Cooperation Protocols Signed Between Turkey and Germany, IHA (Feb. 23, 2016) (in Turkish).)

Turkey has also announced that it has proposed that agreements be signed with 14 countries on the return of migrants from EU Member States to Turkey.   (Turkey Says It Is Proposing Migrant Return Deals to 14 Countries, HÜRRIYET DAILY NEWS (Mar. 2, 2016).)