Crıme of human trafficking ın Turkish criminal law

1. Crıme of human trafficking ın Turkish criminal law Professor A. Caner YENIDUNYA

2. Defınıtıon of human trafficking Human trafficking; is a global social problem which deprives individuals from their fundamental human rights and makes individuals to be subjected to inhumane treatment and practices. Human trafficking victims are recruited and transferred because of ignorance, poverty, desperation, force, duress or any other element affects their will. Hence, they become subject of unlawful and unethical contracts. Human trafficking is a kind of “living property export” and is modern-time appearance of the slave trade in history.

3. Forms of human trafficking The basis of the act is not limited and we can give the examples of human trafficking for the sake of prostitution, human trafficking for the sake of labour exploitation and human trafficking as child molestation. The numbers of these categories is not pre-defined and certain. Organ trafficking and child trafficking for the sake of adoption also can be added to these categories.  Human trafficking can be the result of the unlawful transportation of immigrants. Traffickers generally choose the victims from those who are desperate and would like to immigrate to another country. After the arrival to the host country (secretly or by using counterfeited documents), victims need advices and help of the traffickers to afford immigration expenses, to live in the host country or the find a job there. So, they can be the victims of this offence.

4. VICTIMS ARE NOT ONLY FOREIGNERS BUT ALSO CITIZENS Human trafficking is not an act that is realized by passing the borders of several countries. It is true that those who leave their home countries because of desperation, who immigrate in illegal ways to work and build a new life or who are deceived to immigrate by false promises are subject to human trafficking. Yet, this offense can be committed in the home country of the victims. That is why, along the international cooperation and regulations, it is necessary to have national regulation to fight against human trafficking.

5. FACTORS OF HUMAN TRAFFIKING Social, cultural, economical and political factors play role in individuals’ facing human trafficking. A society, where men have more power than women and children and where discrimination based on gender is overwhelming is a cultural factor of abusing women and children. Especially, discrimination based on gender causes women unemployment, women’s becoming a good and the economical desperation of women is used by human traffickers.

6. HUMAN TRAFFICKING IS NOT ONLY A CRIMINAL LAW ISSUES, ALSO HUMAN RIGHTS PROBLEM Human trafficking should not be thought only as a criminal law or off record economy issue. Because the subject of the offense is human. In this offence type, individual is exploited and changed into a good and his/her physical, sexual and psychological immunity is violated by another individual. Therefore, the human aspect of the human trafficking should not be ignored. Since the act of the offence makes human tradable, this act is incompatible with the human dignity.  Human dignity prevents individual to be accepted as a tool and also requires individual to be subjected to humane treatment and to be the purpose. Human trafficking which means abuse of individuals in many different ways, emerges as acts that threats the dignity, physical, sexual and psychological immunity, freedom to work, eventually the fundamental rights of the individual and national security. The aspects show that human trafficking is also a human rights issue.

7. ınternatıonal cooperatıon is very importance to Against human trafficking Human trafficking violates the hard core or untouchable areas of human rights. This feature is also evidence of that human freedom is the most important value that human trafficking provisions protect. Those untouchable areas can be defined as right to life, right to not to be subjected to torture or any inhumane treatment and prohibition of slavery. Prohibition of the act as ius cogens in international law also supports the explanations above.  One of the important reasons to regulate such an offense in Turkish Penal Code is Turkey’s responsibilities arises from international agreements. In Turkish Penal Code, this offence is regulated among the international offenses, hence the cross-border feature of the offense and the foreignness element is esteemed. Yet, Turkish citizens also can be the victims of this offense. So, regulating the offense among international offenses does not exclude the citizens of Turkey from scope of victim of the offense.

8. International Agreements Palermo Protocol (2000) Turkey is party to the international agreements that acted to fight against human trafficking. Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (2000) was implemented in national law by 4804 numbered Code (date 30.01.2003).

9. Council of European Convention on Action against Human Trafficking (2009) Lately, Council of European Convention on Action against Human Trafficking (19 March 2009) was acted by on 16th May 2005 by Turkey but its approval law has not been acted yet. The aim of the European Convention is to fight against human trafficking, a significant social problem, which violates human rights and the fundamental values of a democratic society, effectively by building cooperation among European Countries.

10. Defınıtıon OF human trafficking at conventıon The Convention adopted the definition stated in Palermo Protocol. Therefore, it is right to say that uniformity in the meaning of human trafficking on international scale has valued. The human trafficking definition stated in Council of European Convention on Action against Human Trafficking (19 March 2009): “For the purposes of this Convention: (a) "Trafficking in human beings" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;

11. Defınıtıon OF human trafficking at conventıon (b) The consent of a victim of “trafficking in human beings” to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; (c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in 6 human beings" even if this does not involve any of the means set forth in subparagraph (a) of this article; (d) "Child" shall mean any person under eighteen years of age; (e) “Victim” shall mean any natural person who is subject to trafficking in human beings as defined in this article” .

12. The crime of Human trafficking ın Turkish crımınal code artıcle 80 Human trafficking is regulated Article 80 under international offenses section of the Turkish Penal Code. The related provision was amended by 5560 Numbered Code (Date 06.12.2006), “in order to force to prostitution” part is added to, “and such practices” part in “to force to servitude and such practices” omitted from the 1st paragraph. Besides, “transfers individuals from/to another country” is added to the acts of the offense and stressed the cross-border feature of the offense. The main form of the offense is defined in the 1st paragraph of Article 80 and sanction is defined imprisonment from eight years to twelve years and punitive fine up to ten thousand days.

13. The crime of Human trafficking ın Turkish crımınal code artıcle 80 According to the Code’s definition, human trafficking is; “To provide, kidnap or shelter or transfer a person (s) from one place to another (or from one country to another) unlawfully and by force, threat or violence or misconduct of power or by executing acts of enticement or taking advantage of control power on helpless persons in order to force them to work, serve, prostitution, servitude (enslavement) or the removal of organs.”

14. The crime of Human trafficking ın Turkish crımınal code artıcle 80 According to the provision, the acts that effects the free will of the victims or taking advantage of the bad condition that the victims are in are necessary for the offense to form (These acts are means-acts). Then, the second-group acts need to be performed by the means-acts. The means-acts that remove the free will of the victims and enable committing the crime are; a) threat, b) force, c) duress or violence, d)misconduct of power, e) acts of enticement, f) taking advantage of control power on the victims or their desperation. The purpose or main acts (second group acts) are a) to transport persons into the country, b) to transport persons to another country, c) to recruited persons, d) to kidnap, e) to transfer persons from one place to another, f) to send persons from one place to another, g) shelter persons. Yet, these acts shall be performed in order to force to a) work, b) serve, c) prostitution, d) servitude, e) removal of organs that is also stated in the related provision.

15. The crime of Human trafficking ın Turkish crımınal code artıcle 80 According to the second paragraph of Article 80 of the Turkish Penal Code, the consent of a victim of the offense to the intended exploitation shall be irrelevant where any of the means set forth in the Article have been used. According to the 3rd paragraph of Article 80 of the Turkish Penal Code, the consent of those under 18 (“children” according to Article 6/1-b of the Turkish Penal Code) is irrelevant. So, even the means-acts, which removes the freewill of the child and enables to perform the main acts, are not performed when child is recruited, kidnapped, transformed, transferred or sheltered to the intended exploitation set forth in the 1st paragraph, the sanctions set forth in the 1st paragraph are applied. According to the last paragraph of Article 80, security precautions are applied for the legal entities committing such offenses. (for security precautions for legal entities, look at Articles 20/2 & 60)

16. The crime of Human trafficking ın Turkish crımınal code artıcle 80 For existence of the offence, the realization of the intended exploitation is not required. It is adequate to make persons to be subjected to exploitation process like a good. Exploitation of persons in terms of prostitution, labor force or physical immunity is also sanctioned under relevant provisions (Article 90-93, 117, 227). Yet, it is not easy to distinguish the (forced) prostitution offense and human trafficking in order to force to prostitution in practice. It is beneficial to examine the elements of the offense briefly.

17. Objective / External Elements of the Offense 1-Offender Any person can be offender of this offense. These are the features of the offender according to the relevant provision: Offender is a person who transports persons to the country, transports persons to another country and enables persons to cross borders. Basically, what the offender does is to move persons from one place to another.  Recruiter; is who finds persons in the source country. Recruiter generally lives in the source country, has connection with victims, has victims’ trust and submits victims into the hand of the kidnapper. Kidnapper; is who restricts the freedom of the victims (who do not have the consent on it) that he/she had chosen or submitted by the recruiter. Kidnapper transfers victims from one place to another, transfers victims submitted by recruiter or kidnapper to the place where the exploitation will take place. Transferor; is who transfers victims from one place to another yet he/she does not have physical contact with them. Harbourer; is who provides accommodation and subsistence of victim under his/her control.

18. Objective / External Elements of the Offense 2- Victim Anybody can be victim of the offense. If the victim is a child, the means-acts are not required. There is no provisions about the case in which the crime is committed against a child by performing the means-acts. According to Article 61, judge should define the sanction by getting close to the upper limit. We need to pay attention to child abuse while talking about child victims. Children as victim of human trafficking can be the subject of several kinds of exploitation: Forced labor, slavery, illegal adoption, pornography, child molestation, child-soldier, child-bride, child-beggar

19. Objective / External Elements of the Offense The notion of child-soldier This notion means the use of children in the arm services by terrorist groups or illegal administrations. This notion has three aspects: 1) The use of children as cook, carrier, reporter, watchman, sex-slave by illegal groups 2) The use for propaganda or as human shield, 3-The use as soldier in armed conflict  Child-soldier in Turkey*: According to a report based on a research took place in 2008, 3000 children had been used as soldier in conflict since 1994 by the terrorist organization (PKK) and one tenth (1/10) of those children are girls. According to the report of Human Rights Watch (2002), more than 120.000 kids in Africa were used as soldier in armed conflict. (Sierra Leone, Angola, Liberia, Burundi, Ruanda, Uganda, Congo, Sudan, Somalia) *Sever, Murat-Demir, Oğuzhan Ömer- Kahya, Yavuz, “Türkiye’de İnsan Ticareti Mağduru Tespit Süreçlerinin Değerlendirilmesi”, (Uluslararası Göç Örgütü -IOM- Türkiye Ofisi eşgüdümünde, SIDA tarafından finanse edilen Türkiye Göç Yönetimi Çabalarının Desteklenmesi projesi kapsamında, Polis Akademisi Uluslararası Terörizm ve Sınıraşan Suçlar Araştırma Merkezi –UTSM- Tarafından Hazırlanan Çalışma), Ekim 2012, s.31.

20. Objective / External Elements of the Offense The Notion of Child-Bride This notion means because of economical and social reasons, forcing female children who are under legal marriage age limit (those who are under 18) to live together under the name of marriage with generally people older than them without any affection with the consent of their families. The female child is submitted to the men after the religious marriage ceremony, instead of the legal marriage. There is no suspicion that this act is a kind of human trafficking according to Article 4 of the The Council of Europe Convention. To see the early marriage as a part of the culture of the region or society and justifying the child-bride is the greatest betrayal to our children, regardless of their gender.

21. Objective / External Elements of the Offense Child beggar During rush hours, in traffic jam, children are force to sell tissue or gum or are used in begging. Families of the children give their consent and submit their children to the people deal with these acts in this case as well. Article 229 of the Turkish Penal Code which deals with begging is insufficient to fight against “begging” sector. Because, the problem is not only about poverty but especially about the acts of an organized group based on exploitation, targets big cities and undeserved gain, get sustained by the human source from the places where poverty dominate.

22. Objective / External Elements of the Offense 3- Act • As mentioned above, there are two types of acts; the means-acts which effect the freewill of the victims and the main-acts which gets the victims to exploitation. • The means-acts are: • threat, • force, • duress or violence, • misconduct of power, • acts of enticement, • taking advantage of control power on the victims or their desperation

23. Objective / External Elements of the Offense a) Threat, force, duress or violence These acts has a forcing effect on persons. Duress or violence means use of physical force on persons and break the resistance. Threat is to hinder a person’s ability to decide freely and freedom to act according to his/her decisions by informing him/her about a future unlawful danger/badness. Force, in relation with two notions below, is a deed to break the resistance of the victim and intimidate him/her. b) Misconduct of power A person who has a power on victim misconducts his/her power. The power of a person on another may emerge from a work-relation, kinship, serve-relation with the victim, tradition or common accommodation. The person has power on victim uses his/her power to break the resistance of the victim. Advice is not misconduct of power.

24. Objective / External Elements of the Offense c) Acts of enticement It is to deceive a person by acts of enticement. Sufficiency of acts shall be required. For example, Turkish Court of Cassation stated; “deception is a qualified lie. Lie shall has density and be artful and it shall hinder victim’s ability to check its authenticity. (Yargıtay. 11 CD. (11th Criminal Chamber of Turkish Court of Cassation, 21.02.2006, 5558/1119). d) Taking advantage of persons’ desperation Desperation means the deprivation, physical and psychological deficiency has effect on victim caused not by the offender. In case of desperation, victim is helpless and not be able to resist to the act. Desperation may emerge from social, family, economical, bodily or psychological problems. Desperation shall be evaluated for each victim separately. Failure of victim to be desperate does not eliminate his/her desperation.

25. Objective / External Elements of the Offense The main acts are • to transport persons into the country, • to transport persons to another country, • to recruited persons, • to kidnap, • to transfer persons from one place to another, • to send persons from one place to another, • shelter persons.

26. Objective / External Elements of the Offense a) Transportation of persons into the country or to another country Transportation of persons into the country means that victim crosses the Turkish borders and gets in Turkey; transportation of persons to another country is to move the victim in Turkey to another State’s territory. In this case, victim is accompanied by offender.Transportation of persons into the country or to another country can be either legal or illegal. When it is illegal, offence of Unlawful Transfer of Immigrants to a country (Turkish Penal Code, Article 79) does not emerge. Yet, if trade phase starts after the victim gets into the country, both offences (human trade and Unlawful Transfer of Immigrants to a country ) emerge. b) Recruitment of persons Victims are searched, detected and recruited. This is the first phase that persons are included into trade. This phase is about the detection and preparation of victims to transport them to the exploitation place. For instance, by detecting and directing poor and helpless persons, act of recruitment emerges.

27. Objective / External Elements of the Offense c) Kidnapping Kidnapping is to move victim from one place to another, to move him/her out of her safe-zone to the control zone of offender. Victim is moved in contrary to his/her consent. Moving the victim to the place of his/her choice is not sought. If victim is moved but not is not got into the control zone of offender, the act of kidnapping is not completed. d) Sending persons from one place to another Victim is moved from one place to another in accompany with trader or a person under trader’s control. e) Sheltering Sheltering means to provide the necessary life conditions, provide the maintenance, accommodation, nutrition and other necessities. Sheltering may be temporary or permanent. Yet, the act needs to have some density. Giving one meal is sheltering. But, providing accommodation to victim by knowingly the victim’s situation (for instance, providing just before the transport) constitutes the act of sheltering.

28. Subjective Elements of the Offense • The subjective element of this offense is mensrea (direct intent; guilty knowledge and willfulness) • This offense cannot be committed with eventual intent but direct intent. Besides, the offender is required to act with one of the motives stated below: • To force to work • Serve • Prostitution • Servitude • Removal of organs.

29. Subjective Elements of the Offense The realization of these motives is not necessary for the offense to be formed. The realization of the motives required the application the other relevant provision of the Turkish Penal Code. It is not required that the offender has the motive to realize the exploitation types mentioned above himself/herself.  Acquiring an economic gain may not be the sole purpose of the offender. For instance, (A), may have recruited the victims for his/her friend (B), who lives abroad and deals with human exploitation, in exchange for nothing.

30. Subjective Elements of the Offense a) Forced labor and service : It means any labor or service he/she performed in contrary to his/her consent. In this case, a person is subjected to unwanted, unjust, overwhelming and disproportionate in terms of burden and benefit work conditions. b) Forced prostitution : Prostitution has three aspects: there is no affection in it, it makes Money, it is a profession. Forced prostitution is to use victim’s body to satisfy others’ sexual desires in exchange for profit. Not only sexual intercourse but also other acts to satisfy sexual desires are included to prostitution. For instance, to run massage saloon to masturbate others is included to prostitution. Photography for pornographic materials is not included to prostitution. c) Forced servitude : It means to subject a person to another’s will, to make him/her unable to act freely and to deprive him/her of the right to define him/her own destiny/future.  d) Removal of organs: One of the offenders aims is removal of victims organs or tissues.

31. Element of opposition to law Article 80 regulates the consent of victim. Article 80, paragraph 2: “In case of execution of acts which constitute offense in the definition of first subsection, the consent of the victim is considered void”.  The freewill of the victim is removed by the means-acts so there is no valid consent. It is important to state that since human trafficking is incompatible with human dignity, the consent of victim is not esteemed.

32. Completion of the Offense • Offense is completed by the performing the means-act and main act. The realization of the offender’s motive is not required. • When the means-act is performed but main act cannot be performed because of an external factor, the offense is not completed but attempted.

33. Relation with other Offenses For the completion of the offense, the realization of the motives such as forcing to work or prostitution is not required. If these motives are realized, offender is also subjected to separate punishments. For example, if the victim is forced to prostitution, both human trafficking offense and (forced) prostitution offense are completed. Another example is, if the victim is forced to work, both human trafficking offense and forced labor offense are completed. If the duress applied to the victim causes consequential heavy injury (such as risk of life, loss of any one of the senses or organs of the victim, loss of sensual or bodily functions, break of corporal bones) offender is subject to the punishment of this offense.

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