The accused, M, A, Y, Ta, B and Tu, were accused of attempting to smuggle migrants.
The 39 migrants, from Congo, Mauritania and Somalia, agreed to pay the accused to smuggle them into Italy. The accused agreed to take them through Turkey then enter Greece via sea. On 17 April 2004, M, and a Somali man named Osman, agreed to arrange transport of the migrants to Izmir province from Istanbul, using a truck. The migrants boarded the truck on 18 April 2004, which was driven by B and Tu. B and Tu arrived in the town of Seferihisar, in Izmir province, on 19 April 2004 driving the vehicle containing the migrants.
In Seferihisar, the migrants were transferred into a second truck owned by Ta. This truck was driven by Gursel, who was Ta’s friend. This truck was intended to drive the migrants to the town of Doganbey, and then to deliver the migrants to a vessel. The vessel was to be driven by M, and was owned by Y.
However, the migrants were apprehended and the accused arrested before they could board the vessel. Turkish police received information from a witness reporting suspicious activity. The police were informed of the accused’s names, the vehicle’s number plate, the route they would take, the name of the vessel to be used, where the vessel was docked, and that the migrants were waiting in the vehicle. The police intercepted the migrants at Seferihisar.
TürkiyeThis proceeding involved the first trial of M, A, Y, Ta, B and Tu, who were accused of attempting to smuggle migrants. Although the accused argued that the offence was not committed in an organized manner, the court held that it had been. Article 201(a) of the Türk Ceza Kanunu increases the punishment for the crime of migrant smuggling where it is committed in an organized manner.
M, A, Y Ta, and B appealed against the decision of the trial court that the offence was aggravated. The majority of the appellate court thought that the trial court had erred in classifying the crime as organized. In particular, the court considered that the ‘organized’ aggravation should only apply where the accused had committed the offence repetitively. The court held that there was no evidence of repetitive offending and that, as a result, the aggravating factor was not applicable.
There was a dissenting judgment by Justice Serpil Çetinkol who thought that the clearly planned stages of the smuggling process suggested that the defendants were previously professionally involved in migrant smuggling. This led to her decision that the crime should be classified as organized.
Information regarding the effect of the successful appeal on the sentences of M, A, Y, Ta, and B is not available.
A Somali man named Osman was identified as one of the organizers of the migrant smuggling venture. No further information regarding him is available.
A man named Khan is also identified in the case report as having a role in the venture. No further information regarding him is available.
The Court of Cassation's Penal Law Chamber (Tur: Yargitay Ceza Dairesi)
This case involved consideration (though brief) by the Court of an organized criminal group, for the purpose of an aggravation to the crime of migrant smuggling under Article 201 of the Türk Ceza Kanunu. It is notable that a majority of the Court considered that such a group did not exist in this case, notwithstanding the involvement of three or more persons acting in concert to perpetrate the crime of migrant smuggling, for a financial benefit. The Court held that a finding that there was an organized criminal group required repetitive criminal conduct by the group. As there was no evidence of such repetitive conduct, the Court overturned the decision of the trial court that an organized criminal group existed. In this context, it can be noted that the definition of an organized criminal group in Article 2 of the CTOC requires that such a group must have the aim of committing one or more serious crimes or offences.
It should noted that the crime of migrant smuggling under Article 201 is now repealed.