INTRODUCTION

Turkey, constituting a bridge between Asia and Europe, is a leading destination country for “trafficking in persons.” Victims in Turkey, mostly women and young girls, are from Romania, Russia, Ukraine, Moldova, Armenia, Azerbaijan and Georgia.

Turkey is on Tier 2 of the 2006 Trafficking in Persons Report (TIP Report), which was released by US Department of State Office to Monitor and Combat Trafficking in Persons.

LEGAL FRAMEWORK IN TURKEY

   Constitution

Article 90 of the Turkish Constitution regulates the relationship between the national laws and international conventions. According to this Article, when an international convention has been ratified, it becomes an internal part of the national legal system and can be directly enforced.

The Convention against Transnational Organized Crime entered into force on 29 September 2003 and the Protocol to Prevent, Suppress and Punish Trafficking, Especially of Women and Children, entered into force on 25 December 2003, and they took effect under Turkish Legislation and became a part of national law via Article 90 of the Turkish Constitution.

As well, the Turkish Constitution includes several provisions which are directly related to trafficking in persons. These can be outlined as follows:

As to personal inviolability, material and spiritual entity of the individual, Article 17 of the Constitution states that: “Everyone has the right to life and the right to protect and develop his material and spiritual entity. The physical integrity of the individual shall not be violated except under medical necessity and in cases prescribed by law; and shall not be subjected to scientific or medical experiments without his or her consent. No one shall be subjected to torture or ill-treatment; no one shall be subjected to penalties or treatment incompatible with human dignity…”

With regard to prohibition of forced labor, Article 18 of the Constitution says that: “No one shall be forced to work. Forced labor is prohibited. Work required of an individual while serving a prison sentence or under detention, services required from citizens during a state of emergency, and physical or intellectual work necessitated by the requirements of the country as a civic obligation do not come under the description of forced labor, provided that the form and conditions of such labor are prescribed by law”.      

Penal Code: The Crime of Trafficking in Persons

Having ratified the UN Convention against Transnational Organized Crime and its Additional Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially of Women and Children, in line with the provisions of the UN Conventions against Transnational Organized Crime and its additional Protocols, necessary amendments were made in the national law. Turkey had primarily criminalized trafficking in human beings under Article 201/b of the previous Penal Code in 2002.  As a result of this, Article 201 of the Turkish Penal Code (numbered 765) was amended on 3 August 2002 and entered into force on 9 August 2002.

For the first time, Article 201/b of the Penal Code introduced the definition of trafficking in human beings and criminalized the act of trafficking. The law prescribed heavy penalties for the traffickers: imprisonment between five and ten years and, in addition, a heavy fine of not less than one billion Turkish Liras. If trafficking in human beings is committed by organized criminal groups, the above-mentioned imprisonment and heavy fine penalties would be increased doubly.

As the Penal Code was fully amended, Article 80 of the new Penal Code (numbered 5237), which entered into force as of 1 June 2005, sets out the definition of trafficking in human beings. Whereas the previous Penal Code (numbered 765) regulated trafficking in persons as a crime against liberty, the new Penal Code regulates it as an international crime.

Article 80 of the new Turkish Penal Code is as follows:

1. Those who recruit, abduct, transport or transfer or harbour persons for the purpose of subjecting to forced labour or service, prostitution, enslavement or for removal of body organs, by getting their consent by means of threat, oppression, coercion or using violence, of abusing influence, of deceit or of abusing their control over or the vulnerabilities of these persons shall be sentenced to imprisonment up to eight to twelve years and a fine corresponding to 10,000 days.
   

2.       The consent of the victim shall be irrelevant in cases where the acts that      constitute the crime are attempted with the intentions described in paragraph 1.

3.      In cases where minors below the age of eighteen are procured, abducted, transported or transferred or harboured with the intentions specified in paragraph one, the penalties foreseen in paragraph 1 shall still be applied to the perpetrator, even when no intermediary actions relating to the crime are committed.

4.      Legal entities shall also be subject to security measures for such crimes.

With Article 80 of the Turkish Penal Code, the penalty of imprisonment and judicial fine for traffickers has been increased. It stipulates imprisonment of eight to twelve years and a judicial fine corresponding to ten thousand days. It also prescribes security measures for the legal entities which are involved in trafficking in persons.

     Turkish Criminal Procedural Code: Protective Measures Applicable in Trafficking in Persons

Supervision of Communication by means of Telecommunication

The new Turkish Code of Criminal Procedure entered into force as of 1 June, 2005, and has introduced the interception of telecommunications for the crimes listed in its Article 135, paragraph 6, including trafficking in human beings. Application of the interception of telecommunications to this crime would unquestionably facilitate the identification of the perpetrators.

During the investigation, if there is a strong suspicion that a crime has been committed and there are no other means of collecting evidence, upon the decision of the judge or where a delay is detrimental, upon the decision of the public prosecutor, the communications of the suspect or the accused may be detected, monitored or recorded by means of telecommunications. In such a case, the public prosecutor shall immediately submit this decision to the judge for approval and the judge shall decide on this matter within twenty four hours. Upon expiry of this period or if the judge denies approval, such measure shall be lifted by the public prosecutor immediately.

 Surveillance by Technical Devices

The new Turkish Code of Criminal Procedure has introduced surveillance by technical devices for the crimes listed in its Article 140, including trafficking in human beings. Application of the surveillance by technical devices to this crime would unquestionably facilitate the identification of the perpetrators. Surveillance as well as electronic surveillance, audio and video recordings can be utilized for the investigation of the crime under Article 140 of the TCP.

             THE RIGHTS OF VICTIMS OF TRAFFICKING IN PERSONS

In Turkey, there is no specific regulation regarding the rights of the victims of trafficking in persons. The rights established under the Criminal Procedural Code are valid for all types of victims. All victims are, upon their request, entitled to benefit from the assistance of a lawyer to represent them at both the prosecution and/or trial stages. However, for those victims who are under the age of 18, or are deaf or dumb, or are unable to present their case because they are not represented by a lawyer,  a lawyer will be designated without the victim’s request (Article 234 of the TCPC). In order to enable victims to enjoy these rights effectively and to prevent loss of rights due to not knowing their rights, under Article 234 of the TCPC, the victims are to be notified about their rights, and this point is to be written on the record at the phase of prosecution or trial.

Article 202/1 sets out the right to free assistance of an interpreter. Accordingly, if a victim is unable to understand or speak Turkish sufficiently to present his/her case, fundamental points regarding the claim and the defense in a trial are translated by means of an interpreter appointed by the court.  Fundamental points regarding claim and defense in a trial are explained in such a manner to allow disabled victims to understand them (Article 202/2 of the TCPC).

Victims have the right to demand the collection of the evidence and a copy of any document related to a pending prosecution from public prosecutors, to appeal against decisions of non-prosecution given by prosecutors, which are sent to all victims where they made complaints regarding the crime, to be informed of the date of trial, to join the case as a party; and to appeal against the decision on condition that they have joined the case (Article 234 of the TCPC). In this context, it is crucial for the victims to enable them to become a party not only to the investigation proceedings but also to the court proceedings at any stage.

The victim whose psychology is severely affected by the crime may be heard just once at the pending prosecution or the trial in question, and during the hearing of juvenile victims or other victims, an expert in psychology, psychiatry, medicine, or pedagogy has to be kept present (Article 236 of TCPC).  

   The victims have the right to recourse to legal review irrespective of the public prosecutors pursuant to Article 242 of the TCPC. The victims have the right to claim compensation for their pecuniary and non-pecuniary damages under the general provisions of torts set out in the Law on Obligations

     Turkey’s Efforts to Stop Human Trafficking

The National Task Force on Combating Trafficking in Human Beings (NTF), which consists of officials from all relevant Turkish authorities, was set up in 2002. A National Action Plan was prepared by the NTF and approved by the Prime Ministry in 2003 in order to ensure effective mechanisms to combat trafficking in human beings. 

In the framework of the National Action Plan, two shelters were established for victims. One shelter is in İstanbul, the other in Ankara. These shelters are being operated by NGOs.

The Ministry of Interior has authorized governorates (top government representatives in cities) to issue humanitarian visas and temporary residence permits to victims where necessary, in order to allow them to stay in Turkey for rehabilitation and treatment. The duration of the permit is up to 6 months and it can be extended for a further period.

The Ministry of Interior has signed a cooperation protocol regarding trafficking issues in 2004 with Human Resources Development Foundation, an NGO working in the field of trafficking in persons. A similar protocol was signed between Gendarmerie and Human Resources Development Foundation. Gendarmerie has prepared a brochure titled ‘Combating Trafficking in Human Beings’ and distributed it nationwide.

Turkey signed a Co-operation Protocol with some countries of origin, including Moldova, Ukraine, Georgia and Kyrgyzstan, in order to investigate trafficking cases effectively and to provide assistance to victims.

The Ministry of Health has made necessary legislative and administrative changes in order to provide medical treatment to the victims, free of charge, at state owned hospitals.

A toll-free, nationwide hotline, “157”, for victims of trafficking has been assigned. This number can be reached 24 hours a day, 7 days a week. The hotline is run by Russian, Romanian, English and Turkish speaking operators by dialing 157 on any phone, including mobiles, from inside Turkey. The establishment of a hotline is considered an important step towards the rescue and protection of trafficking victims. It is an essential part of a national and regional strategy to combat trafficking in human beings. The hotline also provides information for individuals who may be at risk for trafficking. This includes information on visas and procedures for a safe return home.  IOM, in close coordination with the Turkish government, is conducting a multi-country promotion campaign in key nations in Eastern Europe, Turkey and the former Soviet countries. As the first multi-country campaign of its kind, the promotion campaign includes television advertising and distribution of passport inserts.

In order to inform foreigners visiting Turkey about the issue of trafficking in persons, leaflets with necessary information and the hotline number “157” have been designed. These inserts are being distributed at the border gates, primarily in Istanbul and at Antalya Airport.

The “Law on Working Permits for Foreigners” provides legal protection for foreigners against exploitation in labor markets and extending legal and administrative safeguards to private services. With this Law, the Ministry of Labor and Social Security is authorized to issue all forms of work permits. Employment in domestic services is also made possible with this Law. The Ministry of Labor and Social Security prepared a sample contract in Turkish and in the language of the applicant for the work permit.

Working with the International Organization for Migration (IOM), Turkey has launched a nationwide awareness-raising campaign on the impact of trafficking on children and families.  The new counter-trafficking campaign focuses on boosting awareness of the social impact of trafficking.  The latest report shows that 1 in 3 women trafficked to Turkey have children. Therefore, this campaign concentrates on mothers who are victims of trafficking. The aim of this campaign to raise awareness of human trafficking’s impact on children and families, to change the perception of a trafficked person, to address broader social consequences of human trafficking and to make people think "What happens to children of traffickers?"  The advertisement entitled "Have You Seen My Mother?"  is focused on four children from the former Soviet Union in search of mothers trafficked to Turkey. 30- second commercials run on 27 Turkish TV channels and 20 theatres and cinemas.  Posters are being used on buses in the hotspots of the victim of human trafficking locations such as Istanbul, Ankara, Izmir, and Trabzon.

The General Directorate of Judicial Registration and Statistic attached to the Ministry of Justice is in charge of the preparation of statistics concerning the crimes of trafficking in human beings on the basis of the information sent by the courts and Offices of Public Prosecution. These statistics give specific information about the numbers of prosecutions and proceedings initiated, the number of the cases, the age and sex of the victims and the results of the cases.

An IOM project entitled "Combating Trafficking in Turkey: a Strategic Approach to Law Enforcement," was funded for a comprehensive assessment and analysis of the Turkish law enforcement capacity to combat trafficking in persons.  The assessment included strategic recommendations for improving conviction rates.