OBLIGATIONS REGARDING ANTI-MONEY LAUNDERING

The Law numbered 5549 for Prevention of Laundering of Crime Revenues, published in the Official Gazette numbered 26323 and dated 18 October 2006, entered into force on the same date (in Turkish, “5549 Sayılı Suç Gelirlerinin Aklanmasının Önlenmesi Hakkında Kanun”, hereinafter referred as the “Law No. 5549”), has determined the obligations of the real persons and legal entities obliged to have anti-money laundering measures in place, which have been detailed in the Regulation On Measures Regarding Prevention Of Laundering Of Crime Revenues And Financing Of Terrorism, published in the Official Gazette numbered 26751 and dated 9 January 2008, entered into force on 1 April 2008 (in Turkish, “Suç Gelirlerinin Aklanmasının ve Terörün Finansmanının Önlenmesine Dair Tedbirler Hakkında Yönetmelik”, in short the “Regulation”).

As per Article 2 of the Law No. 5549, the “Obliged Party” (in Turkish “Yükümlü”) is defined as “those who deal with banking, insurance, individual pension, capital markets, money lending and other financial services, and postal service and transportation, lotteries and bets; those who deal with trading of exchange, real estate, precious stones and metals, jewelry, all kinds of transportation vehicles, construction machines, historical artifacts, art works, antiques or intermediaries in these operations; notaries, sports clubs and those operating in other fields determined by MASAK, with the exception of not being contrary to the provisions of other laws in terms of the right of defense and the information obtained due to professional studies performed within the scope of alternative dispute resolution methods and the first paragraph of Article 35 of the Attorneyship Law dated 19/3/1969 and number 1136, to be limited by the realization of financial transactions related to the purchase and sale of real estate, the establishment and abolition of limited real rights, the establishment, merger, management, transfer and liquidation of companies, foundations and associations, and the management of banks, securities and all kinds of accounts and the assets included in these accounts; freelance lawyers and those working in other fields determined by the President of the Republic.”

“MASAK” (in English, the “Financial Crimes Investigation Board”), the Turkish financial intelligence unit attached to the Ministry of Finance and Treasury, being the main authority enforcing anti-money laundering laws in Türkiye; the enforcement can also be carried out by the Capital Markets Board (in Turkish, “Sermaye Piyasası Kurulu/SPK”), the Central Bank of the Republic of Türkiye (in Turkish, “Türkiye Cumhuriyeti Merkez Bankası/TCMB”), the Banking Regulation and Supervision Agency (in Turkish, “Bankacılık Düzenleme ve Denetleme Kurumu/BDDK”), the directorates of customs and the tax authorities.

While these authorities can impose administrative fines (in Turkish, “idari para cezası/ İPC”), they cannot conduct criminal investigations and enforcement for which only public prosecutors are competent. They cannot either impose civil penalties or remedies but civil damages lawsuits can be initiated by injured persons or companies.

The obligations of the Obliged Parties can be resumed as follows. Besides, it is of importance that the staff involved in AML duties are vetted, that they are trained on AML and informed of customer due diligence.

• Know-Your-Customer Duty
  As per the Article 3 of Law No. 5549, entitled as “Know-Your-Customer” (in Turkish, “Müşterinin Tanınması”) “Obliged Parties shall make determination of the identification for transactions conducted before them and for the transactions that they act as intermediary.”

  The types of the transactions and also their monetary limit for which the Obliged Party shall make determination of identification are determined in the Regulation.

  As per the Regulation, in a permanent business relationship establishment, in the event where suspicious transaction reporting is required or when there is a doubt about the adequacy and accuracy of previously obtained customer identification information, identification shall be made regardless of the amount.
  
  On the other hand, when the transaction amount or the total amount of more than one related transaction is one hundred eighty-five thousand Turkish Lira (TRY185,000) or more and when the transaction amount in electronic transfers or the total amount of more than one related transactions are equal to or more than fifteen thousand Turkish Lira (TRY 15,000), the identity of customers and those acting on behalf or account of their customers must be determined by obtaining the identity information and confirming the accuracy of this information.

  The Identification shall be completed before establishing a business relationship or finalizing a transaction. In this respect, customer identification and customer due diligence may be a useful tool to comply with the requirements.

• Suspicious Transaction Reporting
  In accordance with the Article 4 of Law No. 5549, in case of suspicious transactions (in Turkish, “şüpheli işlem”), the Obliged Parties must report these transactions to MASAK, regardless of the amount.
  
  Suspicious conduct and transactions, unusual transactions, non-face-to-face customers and politically exposed persons should be evaluated within this scope.

  Article 27/1 of the Regulation defines the suspicious transactions 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.

  Suspicious transaction reporting is carried out by the natural person liable himself, the legal representatives of the obliged legal entity, the managers of the non-legal person or those authorized by them, and these officers in the obliged parties who have been appointed as compliance officers. Hence, monitoring and managing compliance with the senior management of your company is of importance in this regard.

• Notification Obligation
  It should be noted that the notifications to be drawn up within the framework of the Law No. 5549 as well as the Law on Preventing the Financing of Terrorism Numbered 6415 published in the Official Gazette numbered 28561 and dated 16 February 2013, entered into force on 16 February 2013 (in Turkish, “Terörizmin Finansmanının Önlenmesi Hakkında Kanun”), may be notified electronically and response may be requested by MASAK electronically, notwithstanding the procedures relating to electronic notification established in Article 7/A of Notification Law No.7201.

• Compliance Obligation
  Certain obliged parties (listed in the Regulation governing compliance issues) are obliged to establish and operate a risk assessment process based on anti-money laundering (AML) and anti-terror financing (ATF) compliance program.

• Obligation to Provide Information and Documentation
  Public institutions and organizations, real persons and legal entities and non-legal entities are obliged to provide all kinds of information, documents and records in all kinds of media related to these, all information and passwords fully and accurately required to access these records and to provide necessary convenience upon the request made by MASAK and supervisors.
• Record Keeping and Submission Obligation
  Obliged Parties, in any environment related to the obligations brought by the Law No. 5549 and their transactions; are obliged to keep the documents for 8 (eight) years from the date of issuance, the books and records from the last registration date, and the documents regarding identification from the last transaction date and to present them to the authorities, if requested.

Our Law Firm remains at your disposal for any further clarifications you may need.

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