26 QUESTIONS AND ANSWERS ABOUT HUMAN TRAFFICKING TO TURKEY

Individuals, who have been recruited, transported, harbored or received by means of the threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability or providing payments or benefits to achieve the consent of a person having control over another person, for the purpose of forced labor, forced service, forced prostitution or servitude or removal of organs.

For the human trafficking to occur coercing and deceiving the victims are matter whereas the consent of the migrant is essential in migrant smuggling. In migrant smuggling the relation between the illegal migrant and criminal organization mostly ends after crossing of the border through illegal means but in human trafficking the relation between the victim and the trafficker continues involuntarily for victim. Exploitation of the individual is present in human trafficking but there is no aim of exploitation in migrant smuggling. Migrant smuggling is a crime committed against the state but human trafficking is a crime committed against the individual and leads to gross human rights violations. Migrant smuggling is always a cross border crime but human trafficking does not always have a cross border nature.

In both of the cases, the matter is transportation of the victims of crime from one point to another. In both of the crime types, the committed crime generally has a cross border nature. It has been observed that both of the crime types are committed by organized crime syndicates. In both of the crime types the main aim is to derive a profit with illegal activities by using the victims. Therefore, exploitation of the victim is present.

1) Push factors; a) Poverty b) Unemployment c) Social and economic inequality of woman d) Lack of education e) Domestic violence f) Gender discrimination g) Lack of equality of opportunity h) Regional and cultural discrepancies in the country of residence i) Ethnic conflicts j) Civil wars 2) Pull factors; a) Job opportunities in target country b) Education opportunities c) Higher income level in the target country d) Promise of a better life

Human trafficker is the individual who facilitates recruitment, transportation, transfer, harboring or receipt of persons for the purpose of forced labor, forced service, prostitution, servitude and removal of organs.

a) Identification of potential victims by the traffickers b) Convincing process with promises of jobs, money and luxurious life c) Transportation from the country of origin to target country d) Initiation of the exploitation process in the target country by the traffickers

Article 18 of Turkish Constitution under the title “Ban on Forced Labor” states that “Nobody can be forced to work. Forced labor is prohibited. Working under conviction or in detention with the condition that the form and conditions have been regulated by laws, services requested from citizens under emergency circumstances, physical and mental work qualified as civil duty in the fields required by the needs of the country shall not be classified as forced labor.’’

Article 80 titled as “Human Trafficking” in Turkish Penal Code No.5237 explains the crime as ‘‘ (1) “Individuals, who provide, kidnap or shelter or transfer persons from one place to another or from one country to another by force, threat or violence or misuse 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, for prostitution, servitude (enslavement) or the removal of organs, shall be subject to imprisonment from eight to twelve years and administrative fine of ten thousand days. (2) The consent of a victim of the offense to the intended exploitation shall be irrelevant where any of the acts forming the crime set forth in the first paragraph have been used. (3) If the minors under the age of eighteen have been recruited, kidnapped, transported or referred to from one place to another or accommodated for the purposes listed in the first paragraph the penalties listed in the first paragraph shall be imposed on the offender even none of the means of the crime have been used. (4) Security measures shall be ordered for legal entities due to the crimes listed above”.

Regardless of their complaint about the crime, individuals under the age of eighteen, who have been recruited, kidnapped, transported or referred to from one place to another or accommodated for the purposes listed in Article 80 of Turkish Penal Code shall be identified as victim of human trafficking crime even none of the means of the crime have been used.

In case of identification of “child” victims of human trafficking, special attention must be paid and special measures must be taken by considering the best interest of child in any action related to such children in addition to the existing legal procedure. Actions related to the child identified, as victim of human trafficking will be executed in accordance with the Law on Child Protection numbered 5395. Victims subject to age analysis will be accepted as minor until the termination of such analysis.

a) Act: (to transport persons into the country, to transport persons to another country, to recruit persons, to kidnap, to transfer persons from one place to another, to refer persons from one place to another, to shelter persons) b) Means: (threat, force, violence, misuse of power, taking advantage of control power on the victims or their desperation) c) Aim: (forced labor, forced service, forced prostitution, servitude, and removal of organs)

About the victims of human trafficking in need of physical and mental treatment in the annex of Decision of Council of Ministers dated 05.12.2003 and numbered 2003/6565 it was stated that; “Foreign nationality patients identified as victims of human trafficking and who cannot afford the health expenses shall be exempted from the provision under the first paragraph of Article 1 of Law No. 4376 dated 08.01.2002 in benefiting from the health services offered by official health institutions and organizations”.

Article 18 of Turkish Constitution under the title “Ban on Forced Labor” states that “Nobody can be forced to work. Forced labor is prohibited. Working under conviction or in detention with the condition that the form and conditions have been regulated by laws, services requested from citizens under emergency circumstances, physical and mental work qualified as civil duty in the fields required by the needs of the country shall not be classified as forced labor.’’

On 13 December 2000, Turkey undersigned the Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime which was opened for signature in Palermo, on 12 December 2000. The mentioned convention and protocol were ratified at Turkish Grand National Assembly through Laws No. 4800 and 4804 dated 30.01.2003 and were included in our domestic law with the publication in the Official Gazette dated 04.02.2003. Our country has undersigned several Security Cooperation Agreements that envisage cooperation in anti- terrorism and anti-organized crime. In all of these agreements there are provisions regarding the establishment of cooperation in fighting against the crime of human trafficking. In line with this in order to activate the relevant provisions of the mentioned agreements, cooperation protocols have been concluded with the authorized bodies of countries of origin setting example for human trafficking such as Moldova, Belarus, Ukraine, Georgia and Kyrgyzstan. “Council of European Convention on Action against Human Trafficking” was signed on 16 May 2005 but the law for the approval of the execution of the Convention has not been enacted by TGNA yet.

Article 18 of Turkish Constitution under the title “Ban on Forced Labor” states that “Nobody can be forced to work. Forced labor is prohibited. Working under conviction or in detention with the condition that the form and conditions have been regulated by laws, services requested from citizens under emergency circumstances, physical and mental work qualified as civil duty in the fields required by the needs of the country shall not be classified as forced labor.’’

a) Articles 17 and 18 of Turkish Constitution b) Article 80 of Turkish Criminal Code No. 5237 c) Articles 135, 140, 202 and 234 of Criminal Procedures Code No. 5271 d) Articles 7 and 13 of “Implementation Regulation on Work Permits of Foreigners” issued on the basis of Law No. 4817 on ‘‘Work Permits of Foreigners” e) Article 16 of Law on Turkish Citizenship No. 5901 f) Article 12 of “Land Transportation Regulation” issued on the basis of Highways Law No. 4925 g) Articles 22, 48, 49, 55, 108 and 123 of Law on Foreigners and International protection No. 6458 h) Passport Law No. 5682 i) Child Protection Law No. 5395 j) Article 88 of Act of Fees No. 492

Anyone who knows or suspects that an individual is a victim of human trafficking can call 157 Helpline free of charge using landlines or mobile phones from any place in Turkey, can make a written, oral or electronic notification by calling 155 Police Helpline, 156 Gendarmerie Helpline, governorates, district governor’s offices, civil society organizations and public prosecutor’s offices.

157 is a helpline that has been established to provide support for rescuing the victims of human trafficking and to provide information to potential victims under the risk of being trafficked. Officials working at 157 Helpline work on 7/24 basis. Notices and complaints are received in several languages such as Turkish, English, Russian, French and languages of CIS. Complaints and notices from abroad can be forwarded by calling 0090 312 157 11 22 free of charge.

This is the residence permit issued by governorates for foreigners, who have been victims of human trafficking or suspected to be victims of human trafficking so that they can be relieved from the trauma of their experiences and decide on whether to cooperate with the authorities or not. In accordance with Article 48 of the Law No. 6458, in that case a thirty day residence permit will be granted to individuals and the criteria applicable in issuance of other residence permits will not be required for this type of residence permit. In accordance with Article 49 of the Law No. 6458, the residence permit granted for recovery and reflection may be renewed for maximum six months period for reasons of safety, health or special circumstances of the victim. However, the total duration of the permit will not exceed three years in any case. If it is identified that foreign victims of trafficking or foreigners suspected to be victims contact the perpetrators of the crime upon their own initiative, their residence permits will be cancelled.

Article 18 of Turkish Constitution under the title “Ban on Forced Labor” states that “Nobody can be forced to work. Forced labor is prohibited. Working under conviction or in detention with the condition that the form and conditions have been regulated by laws, services requested from citizens under emergency circumstances, physical and mental work qualified as civil duty in the fields required by the needs of the country shall not be classified as forced labor.’’

If the victim has consent, then information can be provided to the authorities of the relevant Consulate or Embassy and a meeting can be arranged.

Article 18 of Turkish Constitution under the title “Ban on Forced Labor” states that “Nobody can be forced to work. Forced labor is prohibited. Working under conviction or in detention with the condition that the form and conditions have been regulated by laws, services requested from citizens under emergency circumstances, physical and mental work qualified as civil duty in the fields required by the needs of the country shall not be classified as forced labor.’’

The victims have the right to file a claim for compensation against the traffickers. Compensation can be asked for both pecuniary loss and intangible damages. The victim can file such a lawsuit on her/his own, through his/her legal representative or attorney.

Measures for the prevention of crime are essential in combating against human trafficking. In the recent years by the help of training and awareness raising activities, knowledge of vulnerable groups such as children and adolescents is tried to be increased in the field of human trafficking. Awareness raising and training activities prevent the vulnerable groups to be easily deceived by human traffickers and to be trapped by them. In this field the most important measure is the “project on strengthening the institutional capacity in the combat against human trafficking”. Furthermore, within the scope of the “project on promotion of access to justice by victims of human trafficking and supporting the efforts of Turkey in combating against human trafficking” there are also activities on prevention of human trafficking and awareness raising. In addition to these projects, “national task force” also carries out activities on prevention of human trafficking and awareness raising. On the other hand, 157 helpline for the victims of human trafficking can be listed among these preventive measures. Finally, the efforts are ongoing on the “draft of law on prevention of human trafficking and protection of the victims of human trafficking”.

If the victim has been identified to be in need of mental treatment or supervision by a doctor’s report then he/she will be referred to Mental and Neurological Diseases Hospital for treatment in accordance with general provisions.