Akademik Veri Yönetim Sistemi
ISTANBUL HUKUK MECMUASI, sa.3, 2023 (ESCI)
Migrant smuggling is a multifaceted problem with a transnational nature. The United Nations Convention against Transnational Organized Crime also includes the Protocol against Smuggling of Migrants by Land, Sea and Air, established in 2000, as part of the legal efforts of the States to combat illegal immigration. With this Protocol, the State parties are obligated to criminalize migrant smuggling. Furthermore, the importance of protecting the rights of immigrants has been pointed out in some cases. In this respect, the Protocol presents both State and immigrant -oriented approach. The peculiarity of this paper is the principle of not punishing immigrants. Protocol art 5 is for this purpose, which states that immigrants are immune from criminal prosecution because they are the subject of the migrant smuggling crime. Emphasizing the fact that immigrants are the subject of the crime necessitates a distinct treatment of the legal status of immigrants within the context of the migrant smuggling crime. The basis and scope of not punishing immigrants will be examined in the context of the mentioned principle. The examination will be carried out on the axis of administrative detention measure. Administrative detention measures are applied in the presence of certain conditions in the admission or deportation process of aliens from the country. The increased administrative detention measures against immigrants necessitated an approach from the perspective of criminal law, particularly in recent years. Administrative detention is important concerning the subject matter because it is founded on the principle of liberty deprivation.