The Evaluation of Legal Instruments Regarding the Residence of Foreign Victims of Human Trafficking As One of The Problems of Forced-Irregular Migration
Fatma Elif ÇelikHuman trafficking is one of the most common problems in the world and its consequences directly affect many lives. In the annual trafficking reports published, there are millions of victims who have been forced into various situations such as forced labor, sex work, child and sham marriages, and who have become victims of human trafficking. As modern slaves, the common feature of these people is that they are forced or abducted by force or threat of violence, regardless of whether they are willing or not. Their helplessness is exploited through cheating, deception or abuse of influence. They are abused by human traffickers who use them to make a profit and they are frequently transferred from one place to another. It is accepted that the victimization caused by human trafficking should be clearly defined as “human rights violation”. The most serious infringements of human rights are the violations of the right to personal and physical dignity, the right to personal freedom and security, and the principle of non-discrimination. The reasons behind the temporary residence of trafficked persons are based on international human rights obligations and human concerns, such as the principle of non-refoulment. The short-term residence permits shall be renewed if the victimization conditions continiue; in some situations a long-term residence permit can be granted. Under Turkısh law, a short-term residence permit is granted by the governorates to foreigners who are victims of human trafficking or where there is strong circumstantial evidence that they might be victims.
Zorunlu-Düzensiz Göçün Yarattığı Sorunlardan Birisi Olarak İnsan Ticareti Mağduru Yabancıların İkametlerine İlişkin Hukuki Düzenlemelerin Değerlendirilmesi
Fatma Elif Çelikİnsan ticareti, dünya genelinde en yaygın rastlanan ve yaşamı doğrudan etkileyen sorunlardan biri olmaya devam etmektedir. Her yıl yayınlanan insan ticareti raporlarında zorunlu çalışma, seks işçiliği, çocuk yaşta ve sahte evlilikler gibi çeşitli durumlara zorlanarak insan ticaretinin kurbanı hâline getirilen milyonlarca mağdur insandan bahsedilmektedir. Bu insanların ortak özelliği, kuvvet kullanılarak ya da şiddet tehdidi ile zorlanmaları, kaçırılmaları; hile, aldatma veya nüfuzu kötüye kullanma suretiyle çaresizliklerinden yararlanılması; başkalarına kazanç ya da çıkar sağlama yoluyla istismar amaçlı temin edilmeleri, bir yerden diğer bir yere taşınmaları, devredilmeleri, barındırılmaları yahut teslim alınmalarıdır. İnsan ticaretinden doğan mağduriyetin, açıkça “insan hakları ihlali” olarak nitelendirilmesi gerektiği kabul edilmektedir. İnsan haklarının en ciddi ihlalleri, kişisel ve fiziksel haysiyet hakkının, kişisel özgürlük ve güvenlik hakkının ve ayrımcılık yapmama ilkesinin delinmesinden kaynaklanmaktadır. İnsan ticareti mağduru kişilerin bulundukları ülkede geçici olarak ikamet etmelerine izin verilmesinin gerisindeki sebepler geri göndermeme ilkesi gibi uluslararası insan hakları yükümlülüklere ve insani kaygılara dayanmakta; mağduriyete yol açan sebeplerin devamı süresince söz konusu ikamet izinleri yenilenmekte; belirli bazı koşullar altında göç eden mağdurların uzun süreli ikamet izinlerine başvurmalarına izin verilebilmektedir. Türk hukukunda insan ticareti mağduru olduğu veya olabileceği yönünde kuvvetli şüphe duyulan yabancılara, kısa süreli ikamet izni verilmektedir.
This article, aims to assess the legal instruments regarding residence rights and permits without addressing the fact that foreigners who are victims of human trafficking are subjects of a crime in the context of criminal law. This study aims to examine ways of supporting foreign victims from the perspective of gender equality, by examining conditions of sheltering and protection during their residence. The study also aims to research whether women have difficulties in obtaining a residence permit, especially foreign women who are victims of human trafficking through prostitution.
Article 3, paragraph (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons (Palermo Protocol) defines Trafficking in Persons as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of 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.
The definition of human trafficking, which is now universally accepted, was late to be conceptualized because of the perspective differences in determining what victimization is. When defining what is meant by the term ‘victim’ , a more general understanding of the term can be given for people who have been subjected to labor exploitation such as factory, field, construction, and forced domestic services; but when it comes to sexual exploitation, due to the nuances in conceptualizing prostitution, the definiton of what we mean by the term ‘victim’ might change. Generally, as trafficking is associated with prostitution throughout the world, victims of trafficking tend to be mainly women and children.
In Turkey, the term “victim” is used both to officially refer to the women who are trafificked victims and also as a means of referring to the immigrated women’s fragile and vulnerable position. The most common cases of human trafficking in Turkey are those of forced prostitution; the women who migrated from the Soviet Union to Turkey in order to get a job are the first examples of that kind of trafficking. Over time, this situation has evolved into an exploitation of the hopes of people fleeing politically mixed, war-torn countries such as Syria. Identifying victims of trafficking in Turkey started in the 2000s, and in 2003 the first statistics were shared. Since 2003, the Ministry of Internal Affairs has identified more than 1,400 human trafficking victims.
According to the article 23 of the Constitution of the Republic of Turkey “everyone has the freedom of residence and travel”. The extension of the freedom of residence and travel to everyone covers both citizens and foreigners. On the other hand, in the continuation of the provision, it is stated that, for clearly determined reasons, freedom of residence can be limited to prevent crime, to ensure social and economic development, to realize healthy and regular urbanization and to protect public property. Another limitation provision is stated in article 16 of the Constitution of the Republic of Turkey. According to the article, if the victims of human trafficking are foreigners the limitation of fundamental rights can only be made by enacting law according to international law.
In Turkish law, as is the case worldwide, the basis of obtaining a residence permit for foreign victims of trafficking are international human rights obligations and humanitarian concerns, such as the non-refoulment principle. The legal instruments regarding residence can be customized according to the positive or negative conditions in both the country of origin and the asylum country.
Identifying victims of human trafficking is a difficult issue because it is hard to detect the crime of human trafficking. Due to the complexity of the crime, the officers responsible for detection have to cope with many difficulties. Accessing the victim is one of the first difficulties and than secondly taking the victim’s testimony. Another situation that makes it difficult to identify victims is the “ideal victim” perception in the minds of the officers responsible for the detection. When the Foreigners and the International Protection Act provisions are examined, it is unclear who determines the victim of human trafficking. It is also uncertain whether the determination will be made by considering the moment of victimization or when the police or prosecutor’s office has started an investigation about traffickers, or when the judgment is established in the criminal case against traffickers.
Under Turkısh law, a short-term residence permit is granted by the governorates to foreigners who are victims of human trafficking or where there is strong circumstantial evidence that they might be victims. It is essential for the victims to remain in a shelter or support center and participate in the support program by obtaining their consent during this period, to cooperate with the competent authorities.
