Legal Framework of CFT
The Offence of Financing of Terrorism
Terrorist Asset Freezing Mechanism
Frequently Asked Questions on Law No. 6415
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Legal Framework of CFT
 

Anti Terror Law No. 3713 (Amended with Law No. 5532)


In Turkish legislation, terrorist financing offence was first criminalised in Article 8 of Law No. 3713 To Fight Against Terrorism which was amended with the Law No. 5532 Regarding Amendment in the Anti-Terror Law came into force on 18.07.2006. The offence has been redefined in Article 4 of Law No. 6415 on the Prevention of the Financing of Terrorism came into force on 16.02.2013. Below mentioned terrorist offences against Turkey have been included into this new terrorist financing offence in Article 3 of the Law No. 6415.
 

The definition of “Terrorism” in Article 1 of the Anti-Terror Law is as follows; “Terrorism is any kind of act done by one or more persons belonging to an organization with the aim of changing the characteristics of the Republic as specified in the Constitution, its political, legal, social, secular and economic system, damaging the indivisible unity of the State with its territory and nation, endangering the existence of the Turkish State and Republic, weakening or destroying or seizing the authority of the State, eliminating fundamental rights and freedoms, or damaging the internal and external security of the State, public order or general health by means of pressure, force and violence, terror, intimidation, oppression or threat.”.
 

In the Law No.3713, Article 3 establishes the terrorist offences and Article 4 set forth the offences committed for the purpose of terrorism.
 

Terrorist offences specified in Article 3 of the Law are listed below;

- Disrupting the Unity and Integrity of the State (TCC– Art.302),
- Destruction of Military Facilities and Conspiracy which Benefits Enemy Military Movements (TCC – Art.307),
- Violation of the Constitution (TCC – Art.309),
- Offence against a Legislative Body (TCC – Art.311),
- Offences against the Government (TCC – Art 312),
- Armed Revolt against the Government of Turkish republic (TCC – Art.312),
- Armed Organization (TCC – Art.314),
- Supplying Arms (TCC – Art.315),
- Enlistment of Soldiers in Foreign Service (TCC – Art.320),
- Assassination of the President (TCC – Art.310/1).
 

The offences committed for the purpose of terrorism specified in Article 4 may be listed as follows;
 

“Migrant smuggling; human trafficking; intentional killing; directing suicide; intentional injury; aggravated injury on account of its consequences; torment; threat; blackmail; force; deprivation of liberty; prevention of education and training; prevention of the activities of a public institution or professional institution considered to be a public institution; prevention of the exercise of political rights; prevention of the exercise of freedom of belief, thought and conviction; violation of the immunity of residence; violation of the freedom to work and labour; preventing the exercise of trade unions rights; qualified theft; robbery; qualified robbery; damage to property; qualified damage to property; intentionally endangering public safety; disseminating radiation; causing an atomic explosion; possession or exchange of hazardous substances without permission; adding toxic substances; production and trade of narcotics and psychotropic substances; counterfeiting valuable stamps, instruments for the production of money and valuable stamps; counterfeiting a seal; counterfeiting official documents; documents presumed to be official documents; threat with the intention of causing fear and panic among the public; provocation to commit an offence; praising an offence and offender; hijacking or seizure of transport vehicles; occupation of a stationary platform on territorial land and industrial zone; accessing a data processing system; preventing the functioning of a system and deletion, alteration or corrupting of data; prevention of public duty; providing the opportunity to escape; degrading the symbols of state sovereignty; agreement to commit an offence; usurping military command; discouraging people from performing military service; encouraging soldiers to disobey; physical attack to the president; the offences specified in the Law No.6136 on Fire Arms and Knives (like smuggling fire arms); causing a fire in a forest stated in the Law No.6831 on Forests; the offences (like organized smuggling) requiring imprisonment specified in the Law No. 4926 on Prevention of Smuggling; the offences causing state of emergency (disruption of public order due to violence actions etc.); transmitting cultural and natural values abroad stated in the Law No.2863 on Protection of Cultural and Natural Values.
 


Law No.5549 on Prevention of Laundering Proceeds of Crime



With the Law No.5549; legal arrangements have been made in order to ensure the prevention of laundering proceeds of crime and terrorist financing and the efficiency in combating mentioned offences, obligations have been determined in this scope and the duties and scope of powers of MASAK have been enhanced including combating terrorist financing in addition to combating laundering.
 

Besides the arrangements made for combating solely terrorist financing in the Law No.5549, the arrangements made relating to combating laundering also seem to be possible to be evaluated in the scope of terrorist financing as the terrorist financing offence is the predicate offence of laundering.
 

Provisions concerning suspicious transaction reporting have been established in the article 4 of Law No.5549 and it is stated that in case that there is any information, suspicion or reasonable grounds to suspect that the asset, which is subject to the transactions carried out or attempted to be carried out within or through the obliged parties, is acquired through illegal ways or used for illegal purposes, these transactions shall be reported to the Presidency by the obliged parties.
 

With the article 19/e and 19/ı of law No.5549 MASAK is given the duty and power to collect data, to receive suspicious transaction reports, to analyze and evaluate them in the scope of prevention of laundering proceeds of crime and terrorist financing and to convey the cases to the competent Public Prosecutor’s Office in cases where serious suspicion exists that a money laundering or terrorist financing offence is committed.
 

In the article 17 of law No.5549 entitled as “seizure” it has been stated that in cases where there is strong suspicion that the offences of money laundering and financing terror are committed, the asset values may be seized in accordance with the procedure in article 128 of Criminal Procedure Law No. 5271.

 

Law No. 6415 on the Prevention of the Financing of Terrorism


Law No. 6415 on the Prevention of the Financing of Terrorism came into force on 16.02.2013. With this law, TF offence has been redefined, an administrative mechanism has been established in order to execute the UNSC Resolutions, and formal procedure relating to gaining access to frozen funds for necessary expenses, has been introduced.
 

Mechanism for asset freezing
 

Asset freezing will be implemented in order to;

- Execute the UNSCR 1267 and its successors, (Art. 5)
- Respond to the freezing request of foreign countries (UNSCR 1373) (Art. 6),
- Make request for freezing assets in foreign countries (UNSCR 1373) (Art.7)
 

In all cases, the Council of Ministers will have the authority to decide to freeze assets based on the information provided by MASAK and other related institutions.
 

Decision on asset freezing will gain legal validity upon its publication on the Official Gazette.
All the necessary procedures before and after the asset freezing decision of the Council of Ministers will be implemented by MASAK.
 

Execution of Decisions on Freezing of Assets and Communication with DNFBP’s and Financial Institutions


- MASAK shall be responsible for executing the decision on freezing of asset taken in accordance with the provisions of this Law.
- Decision on freezing of assets shall be announced to the obliged parties by MASAK by using technical means of communication.
- Natural and legal persons and public organisations and institutions which are responsible for implementing the decision on freezing of assets shall inform MASAK of whether they have any asset records, and if they have, of the information on the frozen assets within seven days following the date of request.

 

Law No.5237 Turkish Criminal Law


In the Article 282 of Turkish Criminal Law entitled as “Laundering of Assets Acquired from an Offence” it is stated that “A person who transfers abroad the proceeds obtained from an offence requiring a minimum penalty of six months or more imprisonment, or processes such proceeds in various ways in order to conceal the illicit source of such proceeds or to give the impression that they have been legitimately acquired shall be sentenced to imprisonment from three years up to seven years and a judicial fine up to twenty thousand days.
 

A person who, without participating in the commitment of the offence mentioned in paragraph (1), purchases, acquires, possesses or uses the proceeds which is the subject of that offence knowing the nature of the proceeds shall be sentenced to imprisonment from two years up to five years.”.
 

Because the sanction of terrorist financing offence is determined as imprisonment for a term of five years to ten years, terrorist financing offence is considered to be the predicate offence of laundering and transferring the assets derived from terrorist financing offence abroad or concealing the illegitimate source of such and processing various operations giving the impression that such asset has been legitimately acquired is evaluated in the scope of “laundering” offence.
 


Regulation on the Procedures and Principles Regarding the Implementation of Law on the Prevention of the Financing of Terrorism


With the Regulation on TF, following important aspects of the new asset freezing system have been stipulated in detail and more clearly:
 

• Definitions of some concepts in the TF law such as reciprocity principle, assurance (Article 3),
• Further clarifications with regard to definitions of fund and freezing of asset in the TF law, in line with “funds or other assets” definition of the FATF (Article 3),
• Procedures for listing, delisting and unfreezing, access to frozen funds and way of appeal against asset freezing decisions (Articles 4, 5 and 12 to 16),
• Communication with financial institutions and DNFBPs and work flows for implementing asset freezing decisions (Article 14),
• Duties and powers of Assessment Commission (Article 10),
• Duties and powers of MASAK (Article 16),
• Supervising mechanism for frozen assets, implementation of sanctions for failure to implement asset freezing decisions (Articles 18 to 22),
 

As it is also stated in Law no. 6415, within this Regulation, MASAK is the main actor of the asset freezing mechanism. Under Article 16 of the Regulation MASAK shall be responsible for;
 

• implementing asset freezing decisions,
• conducting financial research and requesting information from any natural or legal person,
• receiving appeals of delisting,
• approving requests of unfreezing
• sending injunctions to financial institutions and DNFBPs to implement the freezing action,
• listing persons, institutions and organizations on MASAK website and de-listing them,
• giving permissions for access to frozen funds,
• supervising financial institutions and DNFBPs
• publishing guidance and implementation manuals, organizing trainings, workshops, panels and seminars
• performing the Secretariat services of the Assessment Commission
 


Regulation on Measures Regarding Prevention of Laundering Proceeds of Crime and Financing of Terrorism (RoM) (Amended on 11.06.2014)


The Regulation on Measures Regarding Prevention of Laundering Proceeds of Crime and Financing of Terrorism was published in the Official Gazette No. 26751 on 09.01.2008. The enforcement date has been determined as 01.04.2008 in the Article 51 of the mentioned Regulation.
 

Principles and procedures regarding obliged parties, obligations and supervision of compliance with obligations, disclosure to customs administration and other measures for the purpose of preventing laundering proceeds of crime and financing of terrorism have been regulated in the Regulation drawn up for the implementation of Law No. 5549 on Prevention of Laundering Proceeds of Crime.
 

Suspicious transaction has been defined as the case where there is any information, suspicion or reasonable grounds to suspect that the asset which is subject to the transactions carried out or attempted to be carried out within or through the obliged parties has been acquired through illegal ways or used for illegal purposes and is used, in this scope, for terrorist activities or by terrorist organizations, terrorists or those who finance terrorism.
 

MASAK General Communique No. 12 (Published on 21.06.2014)


This Communique brings more clear explanations on the implementation of decisions on freezing of asset by liable parties (financial institutions and DNFBPs) in accordance with the Law and Regulation and on the management of frozen assets within the scope of the permission granted by MASAK.
 

With this Communique,
 

• It has been clearly mentioned that while granting permission to access the frozen assets under UNSC Resolutions No. 1267 and 1373, MASAK shall pursue the procedures proposed in the UNSC Resolution No. 1452(2002) and its successor Resolutions.
• Purpose and scope of access to frozen assets has been redefined in accordance with the UNSC Resolution No. 1452(2002) .
• Communication with liable parties via the Registered Electronic Mail System has been clearly set up.
• Blocking Non-Face-to-Face Systems for designated persons has been introduced
• Freezing of jointly owned assets has been explained.
• Guidance for potential matches with sanction lists while carrying out financial transactions has been provided
• All obligatory payments which can be made without permission according to TF Law, to be made to public institutions or quasi-public organizations as taxes, levies, duties, rents, social security premiums, has been included within the scope of the actions to be taken with the permission of MASAK.
• All permitted actions of legal entities to be conducted within the scope of the permission document required to be conducted over bank accounts.
• Permitted legal entities whose assets are frozen may not accept cash while purchasing or selling goods and services or collecting their receivables in order to continue their activities. All collections to be made by them shall be made by using point-of-sale devices or through bank accounts.
• Every kind of exercise of power of disposition on frozen assets stated in the Law and the Regulation have been clarified and ruled out in order to avoid undermining freezing decisions.