A migrant smuggling charge in Türkiye, and the one element it turns on.

TCK 79 sits in the First Part of the Second Book of the criminal code, the part headed Uluslararası Suçlar — international crimes — alongside genocide and human trafficking. That placement is not decorative. It changes which conduct abroad Turkish courts can reach, and it removes a protection you may assume you have. Section 06 deals with that. The conduct itself is short.

Both limbs apply only where the act is done by unlawful means and for the purpose of obtaining material benefit, directly or indirectly. The judicial fine is expressed in days rather than money: the court fixes a number of days within that band and then a daily amount, and multiplies.

An attempt is sentenced as a completed offence. A sentence added to 79/1 in 2010 says so in terms. A boat stopped by the coast guard inside Turkish waters, before anyone crossed anything, is sentenced on the same range as a boat that arrived.

The people being carried are not defendants under this article. The second paragraph calls them mağdur — victims — when it raises the sentence for endangering them. What moves a person across that line is the purpose of material benefit, and the word indirectly carries most of the weight in real files. A discounted crossing, a free place on the boat, a promise of payment on arrival: each of them fits inside it.

Five to eight years is the floor of the article, not the answer. Four increases sit above it.

• Danger to life (79/2-a). Where the offence created a danger to the life of those carried, the sentence is increased by half to two thirds.
• Degrading treatment (79/2-b). Where it was committed by subjecting them to treatment offending their dignity, the same increase applies.
• More than one person (79/3). Where the offence is committed by more than one person together, the sentence is increased by up to half.
• Organisation (79/3). Where it is committed within the activity of an organisation, the sentence is increased by half up to a full further term — at the top of that, a doubling.

They do not all stack in the same way. The two in 79/2 are a separate paragraph, and an increase under 79/2 can be applied on top of an increase under 79/3. The two limbs of 79/3 itself — more than one person, and an organisation — are written as alternatives inside a single paragraph, and whether both can be applied to the same act is contested. That is an argument to put, not an assumption to make.

Put an overloaded inflatable, three defendants and an indictment that describes an organisation onto one file and the arithmetic stops resembling the figure printed in the article. Eight years increased by two thirds is thirteen years and four months. A further doubling for organisation carries it past twenty-six.

This is why 79/2-a is contested in almost every sea file. Overloading, the absence of lifejackets, the state of the hull, the weather that night, whether the engine failed — these are findings of fact. They are made from the coast guard record, the examination of the vessel and the statements of the people carried, and they are answered with those documents rather than with assertion.

Two things here surprise people, and they pull in opposite directions.

This is not an ağır ceza case. Under Law no. 5235 article 12, the ağır ceza mahkemesi hears offences requiring more than ten years' imprisonment. Article 14 of the same law fixes jurisdiction on the upper limit written in the article, with aggravating and mitigating causes left out of account. The upper limit in TCK 79/1 is eight years. A migrant smuggling file therefore begins in the asliye ceza mahkemesi, before a single judge, whatever increases are later applied to the sentence. Other charges joined in the same indictment can move it.

Remand, however, is far easier to obtain than that range suggests. On 6 December 2019, Law no. 7196 added göçmen kaçakçılığı and insan ticareti — TCK 79 and 80 — to the catalogue in CMK 100/3. Where there are strong grounds of suspicion resting on concrete evidence that a catalogue offence was committed, a ground of remand may be presumed. Flight risk does not have to be established separately.

The one-year figure is a total, not a fresh clock. CMK 102/1 caps remand at one year for a case outside ağır ceza jurisdiction, extendable by a further six months where the court gives reasons — and that covers the whole of it, investigation and trial together. Acceptance of the indictment does not start the count again. The investigation-stage figures in CMK 102/4 are ceilings inside that total rather than periods added to it, which is another reason to ask early which ceiling is being applied: where the collective-offence figure runs longer than the total in 102/1, how the two fit together is itself argued. CMK 100/1 also requires remand to be proportionate to the importance of the case and the sentence expected — a point with more force for a person accused of steering than for a person accused of organising.

Not with the charge. With the element.

• The purpose of material benefit. The prosecution does not have to show that money reached you. It has to show that you acted for the purpose of obtaining it, directly or indirectly. That makes the money a matter of evidence rather than a matter of definition — and the absence of any transfer, any cash, any contact with an organiser is evidence going to purpose.
• Who steered, and on whose account. These files are usually built on the statements of the people carried. Those statements are taken quickly, through interpreters, from people whose own position depends on the outcome. Whether anyone identified you, on what basis, and whether that account has stayed the same, are questions the defence puts.
• What "together" means in 79/3. Several people on one boat is not the same as several people committing the offence together. The increase is not automatic because there are several names in the indictment.
• Whether an organisation exists at all. The largest number in the article attaches to an organisation. An organisation implies structure, continuity and hierarchy. People who met once on a beach are not one, and the indictment has to describe more than a common journey.
• The vessel or the vehicle. Under TCK 54, property used in the commission of an intentional offence is confiscated provided it does not belong to a bona fide third party. Where the property has several owners, only the share of the person who participated is confiscated (54/6). And 54/3 allows the court to decline confiscation where it would produce consequences heavier than the offence itself and would therefore be inequitable.

What this page cannot do. It cannot tell you which tier your file sits in, because that depends on documents you have not read: the coast guard tutanak, the report on the vessel, the passenger statements, the phone records, the seizure record. Anyone who gives you a sentence figure before reading those is guessing. The first honest piece of work in a TCK 79 case is reading the file, not predicting it.

It is better to know this at the beginning than to be told at the end.

• Deferral of the verdict (HAGB) is out of reach. CMK 231/5 allows it where the sentence imposed is two years or less. The floor of TCK 79/1 is five years.
• Suspension is out of reach. TCK 51 allows a sentence of two years or less to be suspended. The same arithmetic applies.
• Uzlaştırma does not apply. Criminal mediation runs only for the offences listed in CMK 253, and TCK 79 is not among them. There is no complainant to settle with.

The one general reduction that reaches this article is TCK 62 — discretionary mitigation, which reduces other sentences by up to one sixth. Applied to the five-year floor, that produces four years and two months. TCK 79 contains no effective remorse provision: there is nothing in it equivalent to the reductions available in narcotics files. What is left to argue is the tier, the increases, and the facts underneath them.

Because TCK 79 sits in the First Part of the Second Book, TCK 13 applies to it. Three consequences follow, and each one runs against instinct.

• Turkish law applies to conduct within that Part committed in a foreign country, by a Turkish citizen or by a foreigner (13/1-a).
• Prosecuting that conduct in Türkiye depends on a request by the Minister of Justice (13/2). It is a condition, not a formality, and it is not for the prosecutor alone.
• Even where a foreign court has already convicted or acquitted, proceedings can still be brought in Türkiye on the Minister's request (13/3).

So if you were dealt with for the same crossing in Greece, Bulgaria or Italy, that judgment is important material for the defence — on the facts, on identity, on what role the other court found you had. On the face of the code, it is not by itself a bar.

Interpreter. CMK 202 requires an interpreter to be appointed where the defendant cannot express himself in Turkish well enough to make himself understood, and the essential points of the accusation and the defence are translated. Under 202/3 this applies to statements taken during the investigation as well, where the interpreter is appointed by the judge or the prosecutor. Under 202/4 you may give your oral defence, after the indictment is read and after the prosecutor's final opinion, in another language you say you can express yourself better in, using an interpreter you choose from the official list — at your own cost, not the State's. In a case built almost entirely on statements that were themselves interpreted, translation is a defence question, not an administrative one.

Consulate. CMK 95/2: where the person arrested or held in custody is a foreigner, the consulate of the state of nationality is notified, unless the person objects in writing. Families abroad often learn nothing for days. This notification is usually the fastest route in.

Leaving the country. Release in these files is very often release under judicial control rather than unconditional release, and the first measure listed in CMK 109/3 is a ban on leaving the country. Expect it. Your passport does not come back at the door of the courthouse.