Legal Framework of AML
The Law No. 5549 on Prevention of Laundering Proce...
Turkish Criminal Law No. 5237
Law No. 4208 on Prevention of Money Laundering (A...
The Regulation on Measures Regarding Laundering Pr...
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Legal Framework of AML
 

Law No. 4208 on Prevention of Money Laundering (Abolished)

Laundering offence has been firstly identified as “money laundering offence” in article 2/b of Law No. 4208 which was put into force on 19.11.1996 in our legal system. MASAK (Financial Crimes Investigation Board) started to carry out its studies in February 1997 in accordance with the law No.4208 which was also drawing the general framework of combating money laundering.

The “obligations” which are the wholeness of measures concerning prevention of laundering offence and the “obliged parties” subject to these obligations have been determined with the “Regulation Regarding the Implementation of the Law No. 4208 on Prevention of Money Laundering” issued in accordance with the Law No.4208 and published in the Official Gazette No.23037 on 02.07.1997.The implementation procedures and principles have been comprehensively determined in 4 General Communiques published relating to the obligations stated in the Regulation especially on customer identification, suspicious transaction reporting, assignment of compliance officer, training and internal auditing.

Turkish Criminal Law No. 5237

The laundering offence, which has been firstly defined in our legal system with Law No.4208, was rearranged in article 282 of Turkish Penal Code No.5237 headed “Laundering of Assets Acquired from an Offence” entered into force on 1 June 2005. (Amendment by Law No:5918 date:26/06/2009)
 

According to the article;

• A person who transfers abroad the assets acquired 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.
• Where this offence is committed by a public officer or professional person in the course of his duty then the penalty to be imposed shall be iincreased one half.
• Where this offence is conducted in the course of the activities of an organization established for the purpose of committing an offence, the penalty to be imposed shall be doubled.
• Where a legal entity is involved in the commission of this offence it shall be subject to security measures specific to the legal entities.
• In relation to the offences defined in this article, no penalty shall be imposed upon a person who directly enables the securing of financial assets, or who facilitates the securing of such assets, by informing the relevant authorities of the location of such before the commencement of a prosecution.

While the predicate offences which the assets subject to laundering acquired were determined by listing method in the period that the Law No.4208 was in force in our country, the threshold approach is adopted by saying “an offence which carries a minimum penalty of six months imprisonment” in article 282 of Turkish Criminal Law No.5237 which the laundering offence is established. The term “assets acquired from offence” is used instead of the term “dirty money” which was took place in Law No.4208.

The Law No. 5549 on Prevention of Laundering Proceeds of Crime


The Law No. 5549 on Prevention of Laundering Proceeds of Crime, which was drawn up considering international standards in combating laundering proceeds of crime, entered into force on 18 October 2006 by being published in the Official Gazette No. 26323. Since implementation of essential criminal and procedure laws has been adopted in punishing and investigation of money laundering, this law includes arrangements accordingly.
 

The basic principals related to obligations which were previously determined through regulations and communiqués have been put under the scope of Law no. 5549, and a dual separation has been introduced in punishing acts violating obligations. In accordance with this approach, administrative fine has been introduced for violations of some basic obligations such as customer identification and suspicious transaction reporting that previously required imprisonment.
 

By Law 5549 the measures taken for prevention of money laundering are also adopted for prevention of terrorist financing. 

In Law No. 5549 it has been set forth that obliged parties are required to report to MASAK the transactions in which there is a suspicion that the related assets were used for illegal purposes. Thus, it was aimed to take necessary measures against funds used for financing of terrorism and the related persons.

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

The Regulation on Measures Prevention Regarding Laundering Proceeds of Crime and Financing of Terrorism based on the Law No. 5549 was published on 09.01.2008 in the Official Gazette No. 26751.
In the preparation of the Regulation to be put into force on 01.04.2008, the developments in the information systems, diversifications in the financial instruments, the increasing speed, complexity and limitlessness observed in financial activities have been considered. In addition, the aim of responding to the requirements of our country and at the same time ensuring the compliance of our legislation system with the international standards have been taken into account.

The regulation has a particular importance since it includes measures against terrorist financing as well as money laundering. Basically, the following issues have been arranged in the regulation;

1. Obliged Parties
2. Principles Regarding Customer Due Diligence
3. Procedures of Suspicious Transaction Reporting
4. Principles of Providing Information and Documents
5. Inspection of obligations
6. Disclosure to Customs Administration
7. Retaining and submitting
 

Basic measures set in the regulation are conducting of customer due diligence by obliged parties, notably financial institutions, for the customers in which they are in business relation, reporting the suspicious transactions they have encountered related with money laundering and terrorist financing to MASAK, keeping the relevant information and documents and submitting them when they are requested by the competent authorities.
 

The fundamental element in the prevention of Money laundering is the customer due diligence. The regulation contains provisions requiring obliged parties to take all measures for customer due diligence by adopting risk-based approaches, where necessary, and to pay adequate attention and care for prevention of terrorist financing as well as money laundering.

To avoid any hesitance in the implementation, the transactions requiring customer identification have been determined in-detail by stating quality and thresholds. In this scope, separate arrangements have been established for real persons, corporate bodies recorded in trade registry, associations and foundations, trade unions and confederations, political parties, corporate bodies located in abroad, organizations that are not corporate body and public institutions.

Due to the fact that customer due diligence is an obligation which is not limited only to customer identification, business relationships and transactions of high risk customers as to money laundering and terrorist financing have been set up within the scope of preventive measures. Establishing requirement for obliged parties to give special attention to complex and extra ordinary transactions as well as suspicious transactions, close monitoring is aimed for these types of transactions.

Through suspicious transaction reports that is one of main elements of preventive measures it is aimed at preventing misuse of the services provided by the obliged parties fort he purpose of money laundering and terrorist financing and detecting and suppressing the crimes via exchange of information provided by reporting mechanism.

Further arrangements have been included in the Regulation with respect to detecting compliance level with and infringements of the obligations and inspection of the obligations for ensuring compliance with the obligations.

Effective date of the Regulation was determined as 01.04.2008 for the obliged parties in order to ensure compliance with the obligations and to carry out training and other activities. The obliged parties have been given 6 months starting from the date when the Regulation is entered into force for the purpose of adopting the information of the customers in permanent business relationship as to the date when the Regulation is entered into force within the scope of customer identification to the requirements in the Regulation. Thus, it is aimed at passing from previous application to new one through a certain period and effectively.