Public prosecutors can initiate investigations and obtain search warrants on ‘reasonable suspicion’. The criminal courts are authorised to issue search warrants, interim orders and injunctions. Criminal courts shall render decisions on crimes related to business, which may be appealed before and finalised by the Court of Appeals. Three types of criminal courts exist under Turkish law: criminal courts of peace, first instance and serious crimes.
Criminal courts of peace are obliged to make decisions at the investigation stage of the criminal proceedings regarding protection measures and to examine objections made against these decisions.
Criminal courts of serious crimes oversee crimes such as fraudulent bankruptcy, bribery, forgery of official documents and other crimes with penalties of life imprisonment, aggravated life imprisonment and imprisonment for more than 10 years.
Criminal courts of first instance oversee all other crimes that are not under the jurisdiction of criminal courts of peace and serious crimes.
National courts can exercise extraterritorial jurisdiction in the prosecution of business fraud and other economic crimes, as authorised by multilateral and bilateral treaties to which Turkey is a signatory.
MASAK is commissioned to develop policies and improve legislation to deter money laundering and other financial crimes. MASAK collects data with regard to illegal and suspicious actions relating to money laundering and business crimes, and conveys findings to the related authority (eg, public prosecutors). Similarly, MASAK can act on public prosecutors’ orders to collect data and track suspicious activities.
The Prime Ministry Inspection Board, which was commissioned to investigate the finances and corruption of public and private organisations with the authorisation of the Prime Minister, has been abolished, and its ongoing investigations and obligations have been transferred to the Council. In accordance with the Presidential Decree regarding the State Supervisory Council No. 5, dated 15 July 2018, which regulates the scope of the Council, the Council shall work in accordance with the orders and directions of the President of the Republic of Turkey. For alleged corrupt activities that do not fall under the investigative authority of the Council, the Council is also obliged to inform and notify the relevant authorities about any corrupt activities that have come to its attention. Similar to MASAK, if an action or result is encountered that falls under the authority of the criminal courts or public prosecutors, the Council shall convey its findings to the relevant public prosecutor.
The Competition Authority exercises its investigative authority relating to conformity to competition law in respect of agreements between corporations, concerted practices and similar actions that may result in violation or restriction of competition within a specified market. The Competition Authority, in contrast to the other government agencies described above, has financial and administrative autonomy. It can conduct on-site investigations, examine and take copies of books and records of the company for investigative purposes, and further its investigation by directing inquiries to trade associations and related parties.
The Public Procurement Authority is concerned with overseeing bid rigging before such a complaint is investigated by judicial bodies. The Authority may cancel tenders, take corrective measures or reject complaints by stating its grounds. The Authority shall notify the relevant administrative body for administrative penalties or the public prosecutor’s office of any criminal activity.
The Capital Markets Board also has investigative powers regarding wrongdoing, such as market fraud, actions disrupting the market, information abuse, illegal public procurement and abuse of trust.
The Turkish Criminal Code (TCC) states that criminal liability is ‘personal’, and that no one shall be held liable for the acts of another individual. This is compounded by a further provision (article 20, paragraph 2 of the TCC) that corporate entities shall not be subjected to criminal sanctions; that is, the criminal liability of corporations is not regulated or accepted in Turkish legislation. Therefore, only individuals can be subject to criminal proceedings related to business crimes. The only exception to this issue is the ‘security measures’ applied to corporations. The conviction of intentional offences (ie, offences that benefit a private legal entity through the participation of its organs or representatives on the basis of a permit granted by a public institution and abusing the authority granted by this authorisation) is a requirement for these security measures to be applied. Despite not being regulated in the TCC, the offender, the abettor and the contributing person in the criminal legislation shall be determined in accordance with the concerned individual’s professional position in the company in the context of business-related crimes. However, professional position alone is not considered sufficient for criminal liability. The condition of mens rea must also be met.
The security measures listed under article 60 of the TCC include seizure of goods related to the crime or earnings obtained unlawfully, or invalidation of licences belonging to a corporate entity. However, article 60 of the TCC has not yet been applied with regard to a corporation.
On the other hand, corporations have administrative and civil liability. In other words, only civil and administrative investigations can target corporations. Administrative monetary fines, warnings or other consequences can be encountered in the event of administrative violations, and corporations can face civil compensation claims.
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