The years 2013 and 2014 have witnessed significant developments in compliance activities in Turkey. Many amendments have been introduced in the major compliance regulations. A noteworthy compliance incident is the major corruption and bribery investigation initiated against some Turkish key figures. A corruption investigation causing a great political scandal in Turkey was initiated on December 17, 2013, against several public figures, including key officials in the Turkish government formed by the ruling Justice and Development Party (“AKP”) and well-known businessmen. In total, 91 persons were taken into custody including sons of three AKP ministers, Suleyman Aslan, CEO of state-owned Halk Bank, Reza Zarrab, a well-known Iranian businessman, Ali Agaoglu, a well-known real estate constructor and Mustafa Demir, the mayor of the district municipality of Fatih in Istanbul. Following their statements, the Court detained 26 people including sons of two ministers and Reza Zarrab, accusing them of corruption, bribery, money laundering, founding a criminal organization to commit a crime and gold smuggling. During the investigation, the police confiscated USD 12.5 million in total, allegedly received or provided for bribery purposes. In the following months, all the detainees were released. Criminal Procedures Following this investigation, on February 21, 2014, Turkey has made the conditions for enforcing security measures against criminal suspects much stricter. Law No. 6526, introduced on February 21, 2014, entered into force March 06, 2014, amending several codes including the Code of Criminal Procedure. Law No. 6526 makes the conditions for confiscating real estate, rights and receivables, wiretapping, spotting and recording communications and tracing with technical devices stricter, by requiring a unanimous decision by the Court of Serious Crimes’ members instead of a single judge. Also, with the amendments, concrete evidence is generally required to enforce these security measures, rather than just a strong suspicion.
- Concrete evidence required for detention (“Gözaltı”)
To prevent public prosecutors from detaining suspects arbitrarily, Law No. 6526 has replaced the condition presence of indications that a suspect committed a crime with concrete evidence indicating a suspect committed a crime. Public prosecutors can therefore no longer detain a suspect without concrete evidence.
- Using a vocal and visual communication system for interrogation
Under the new law, a person caught upon an arrest warrant granted by a judge or court during the investigation or prosecution stage has to be brought before the competent judge or court within 24 hours. With this amendment, a suspect will no longer be held in police custody for an unnecessary period, due to a hearing delay. A suspect can now be interrogated by the competent judge or court using a vocal and visual communication system, easing the interrogation process.
- Concrete evidence required to grant arrest (“Tutuklama”) and search warrants
Law No. 6526 also introduces stricter requirements for arresting suspects or accused persons, and for searches. Previously, strong suspicion of a crime committed was enough to grant an arrest warrant. Now, concrete evidence is required. Similarly, a reasonable suspicion no longer justifies searching a person’s belongings, house, working place or places related to him/her, as there must now be a strong suspicion based on concrete evidence.
- Confiscation of real estate, rights and receivables
The new law also strengthens requirements for confiscating real estate and rights and receivables. In order to confiscate the properties listed under Article 128 of the Code of Criminal Procedure (e.g., real estate, vehicles, receivables, negotiable instruments), a strong suspicion based on concrete evidence is now required, rather than just a strong suspicion. Law No. 6526 also eliminates the crime of forming an organization to commit a crime from the crime list set out in Article 128, which is used in practice as a catch-all provision to confiscate properties. In addition, a report regarding properties obtained from the crime must be issued from the relevant institution including (i) the Banking Regulation and Supervision Agency; (ii) Capital Markets Board; (iii) Financial Crimes Investigation Board; (iv) Undersecretariat of Treasury; and (v) Public Supervision, Accounting and Audit Standards Agency. Finally, rather than an individual judge’s decision, the unanimous vote of the Court of Serious Crimes’ members will be necessary to render a confiscation decision.
- Search, copying and confiscation of computers
A new strong suspicion based on concrete evidence requirement for searching, copying and confiscating computers has also been introduced under the new law. A judge can decide for this action only if it is not possible to collect evidence by different means and there is a strong suspicion based on concrete evidence.
- Wiretapping, spotting and recording communications
With the amendments, rather than an individual judge, only the Court of Serious Crimes’ members can unanimously decide communications can be wiretapped, spotted or recorded in cases where it is not possible to collect evidence by different means. Moreover, there must be strong suspicion based on concrete evidence indicating a crime has been committed. In urgent cases, public prosecutors can decide on wiretapping, spotting or recording communications provided the decision is immediately reviewed by the Court of Serious Crimes’ members, and they reach a decision in 24 hours. To prevent wiretapping persons that have no relation to the crime, the new law requires those requesting the measure to submit a document or a report indicating the owner of the line or communication device and its user, if he/she is known. Law No. 6526 shortens the duration for wiretapping, spotting or recording communications measures to a maximum three months (two months for the first decision period, with a one month extension period). For organized crimes, however, the duration is now six months maximum, including extensions. The new law eliminates the crime of forming an organization to commit a crime from the crime list set out in Article 135 of the Code of Criminal Procedure, which is used in practice as a catch-all provision to confiscate properties, and includes qualified theft and offense of plunder. Another change in Article 135 is that the possibility to determine the position of the suspect or accused by using his/her phone’s signal is now limited to two months maximum, with a one-month extension possibility.
- Tracing with technical devices
Extensive amendments to Article 140 of the Code of Criminal Procedure have also been introduced for tracing with technical devices. With the amendments, a strong suspicion based on concrete evidence is required. A unanimous decision by the Court of Serious Crimes’ members is also mandatory. And the new law excludes the crime of forming an organization to commit a crime from the crime list set out in Article 140, as in Articles 128 and 135. The time period for tracing with technical devices has been reduced to a maximum three weeks from the previous four weeks, but can be extended for another week. For organized crimes, however, the Court may decide to extend the time period in one-week increments, up to an additional four weeks. Turkish Criminal Code On June 18, 2014, a Turkish Criminal Law amendment was introduced regarding trial of bribery and trading in influence crimes committed by foreigners to the detriment of Turkey. Under Article 12 of the Turkish Criminal Law, if a foreigner commits any crime, except for the catalogue crimes listed under Article 13 (e.g., torture, drug trafficking, counterfeiting money) in a foreign country that causes damages to Turkey and is subject to imprisonment which is not less than one year, and if the offender is found in Turkey, then he/she is punished under Turkish law; however, the trial must be filed upon the Ministry of Justice’s request. With the latest amendment made to Article 12, however, foreigners who specifically commit bribery and trading in influence crimes to Turkey’s detriment will not fall within the scope of the foregoing provision. Therefore, these foreigners can be judged in Turkey without requiring a Minister of Justice request. Now that the Ministry of Justice request and its associated protracted period and complicated procedures have been eliminated, it has become easier to file for a trial against foreigners who commit bribery and trading in influence crimes to Turkey’s detriment. By Birtürk Aydin and Sertaç Kökenek
