DECISION ON THE FREEZING OF PERSONS’ ASSETS WITHIN THE PREVENTION OF THE FINANCING OF TERRORISM AND ACTIONS AGAINST THIS DECISION
I- CONCEPT OF ASSETS AND FUND
According to the Law on the Prevention of the Financing of Terrorism, the definition of assets is defined in the regulation on the procedures and principles regarding the implementation of this law. Accordingly, the assets; refers to the funds and income that is partially or wholly owned or controlled by a natural or legal person directly or indirectly, and the benefit and value derived from them or their conversion to each other.
As emphasized in the decision numbered 2017/16-692 and 2018/41 decision of the Supreme Court Penal General Assembly; subparagraph (c) of the first paragraph of Article 2 of the Law No. 6415; Since it is defined as “money or any movable or immovable, tangible or intangible property, right, receivable and any document representing these, movable or immovable whose value can be represented by money”, everything that has material and economic value should be considered within the concept of fund.
II- FREEZING OF ASSETS IN TURKEY
Asset freezing measure entered Turkish law for the first time with the Law on Prevention of Financing of Terrorism dated 7/2/2013 and numbered 6415. In accordance with the aforementioned Law, freezing the assets of individuals, institutions and organizations within the scope of the United Nations Security Council’s Resolutions 1267, 1988, 1989 and 2253; It has been made possible for Turkey to request asset freezing from foreign states and from Turkey within the scope of combating the financing of terrorism.
In which cases, who and in which manner will decide to freeze the assets in Turkey is regulated in the law numbered 6415. The assets in Turkey of those who are reasonably suspected of having committed the acts falling within the scope of Articles 3 and 4 of this law may be confiscated. Actions that are prohibited from providing funds are listed in Article 3 of the Law. On the other hand, the crime of “Financing of terrorism” is regulated in Article 4. In the text of the article;
ARTICLE 4 – “(1) A person who provides or collects funds for a terrorist or terrorist organizations for the purpose of using or knowingly and willingly that it will be used in the realization of the acts regulated as a crime within the scope of Article 3, even without being associated with a specific act, may be charged with another act that requires a heavier penalty. If it does not constitute a crime, it is punished with imprisonment from five to ten years. (2) (Annex: 27/12/2020-7262/36 Art.) (1) If the acts listed in the first paragraph are committed by the founder or manager of the organization or a member of the organization, these people are subject to the crimes of establishing, managing or being a member of an organization the penalty to be imposed is increased by one third. (3) In order to impose a penalty according to the provision of the first paragraph, the condition that the fund has been used in committing a crime is not required. (4) In case the crimes within the scope of this article are committed by abusing the influence provided by the public office, the penalty to be imposed is increased by half. (5) In case the crime is committed within the framework of the activity of a legal person, security measures specific to them are imposed. (6) In case the crime is committed against a foreign state or an international organization, investigation and prosecution is subject to the request of the Minister of Justice. (7) Provisions of Law No. 3713 on investigation, prosecution and execution are also applicable for this crime. (8) (Annex: 14/4/2016-6704/29 Art.) In terms of this crime, the Criminal Procedure Law No. 5271; a) Appointment of a trustee for the management of the company in Article 133, b) Detection, listening and recording of the communication in Article 135, c) Assignment of a secret investigator in Article 139, ç) Monitoring and measures with the technical means specified in Article 140. provisions may apply. (Additional sentence: 27/11/2020-7262/36 Art.) In addition, it is stated that a controlled delivery measure may be decided according to the provisions of the Law No. 4208 dated 13/11/1996.
II-A) FINANCIAL INVESTIGATION ON THE FREEZING OF ASSETS
Financial investigation regarding the freezing of assets is carried out by the Financial Crimes Investigation Board (MASAK). In order to fulfill this duty, it is a legal obligation to forward the information and documents requested from the Ministries of Justice, Internal Affairs and Foreign Affairs, the Presidency of the National Intelligence Organization, the Undersecretariat of the Treasury and other relevant public institutions and organizations, as well as real and legal persons, to MASAK without delay in the required procedure, form and time.
In this regard, in the circular numbered 155/1 of the Ministry of Justice General Directorate of Criminal Affairs, dated 23.02. taking into account that the subject requires specialization, the President of the Republic No. 1 Pursuant to sub-paragraph (g) of the first paragraph of Article 231 of the Decree, Analysis and examination of the crime of financing terrorism may be requested from the MASAK Presidency. a) Your analysis; using statistical and analytical methods of various data collected and notifications received; The studies carried out to obtain qualified financial intelligence from them by processing them with the help of technical tools, b) Studies for the determination of the existence of facts regarding the crime of financing of terrorism, knowing that it is expressed, 11- In requests for analysis and examination regarding the crime of financing of terrorism; Submitting a certified copy of the necessary documents (such as statement reports, communication records, documents for asset research and determination) regarding the incident subject to investigation, which is important in the analysis and examination of this crime, to the MASAK Presidency, together with the request, Pursuant to the 6th and 7th paragraphs of the aforementioned Law, information, documents, findings and evaluations regarding the decision to be taken and the requests to be made regarding the freezing of assets within the scope of Articles 6 and 7 of the aforementioned Law are notified to the MASAK Presidency through our Ministry.
II-B) PROCEDURE OF FREEZİNG OF ASSETS
With the Presidential Decree No. 31351 dated 27 December 2020, the Law No. 6415 was amended in order to combat Money Laundering, Financing of Terrorism and other crimes and to encourage the effective implementation of legal, regulatory and operational measures against these crimes.
According to the new regulation, The decision with regard of the freezing of the assets of individuals, organizations in Turkey is possible, based on the existence of reasonable grounds that they have committed the acts within the scope of Articles 3 and 4 of the Law No. 6415 on the Prevention of the Financing of Terrorism, after it has been definitively decided by the Courts to be a terrorist organization. This decision can be taken jointly by the Minister of Treasury and Finance and the Minister of Interior upon the recommendation of the Commission. Decisions regarding the freezing of assets given within this scope are submitted to the approval of the Ankara Heavy Penal Court determined by the HSK within forty-eight hours. As a result of the examination to be made in terms of the existence of reasonable reasons, the court decides to continue or revoke the decision to freeze the assets within five days and immediately notifies the Financial Crimes Investigation Board of the result.
The decisions regarding the freezing of assets and the annulment of this decision taken pursuant to the provisions of the Law No. 6415 on the Prevention of the Financing of Terrorism are published in the Official Gazette. These decisions shall be deemed to have been notified to the relevant person and organization on the date of their publication, about which the decision to freeze the assets has been made. In the decision to freeze the assets; It is obligatory to show who the decision was made about, its reasons, scope, duration, legal remedies that can be applied against this decision and the duration of the application.
III- OBJECTION AND ACTION
Against the decision regarding the freezing of assets, an objection can be made in accordance with the provisions of the CMK in accordance with Article 7/4 of the Law on the Prevention of the Financing of Terrorism No. 6415.
In this context, the appeal application is first made to the Asset Freezing Evaluation Commission. The Commission presents its proposal regarding the request for removal to the relevant ministers. If the request is made by the relevant ministries (Minister of Treasury and Finance and Minister of Interior), the Freezing of Assets decision is lifted. Requests that are not seen in place are sent to the Ankara Heavy Penal Court. The objection made is decided by the relevant Ankara Heavy Penal Court.
This objection does not preclude filing a lawsuit against the decision in the administrative court. Pursuant to the 3rd paragraph of the 7th article of the Law No. 6415, the freezing of the assets of the persons, institutions or organizations in Turkey based on the existence of reasonable grounds that they have committed the acts falling within the scope of the 3rd and 4th articles of the same Law. Within 60 days following its publication in the Official Gazette, a lawsuit can be filed at the Council of State within the framework of Article 3 and Article 7 of the Administrative Procedure Law No. 2577.
The Asset Freezing Evaluation Commission presents its proposal to the relevant ministers by evaluating whether the existence of reasonable causes continues at the latest at six-month intervals following the publication of the decision regarding the freezing of assets in Turkey in the Official Gazette.
Another important issue here is the information about those whose assets have been frozen, their receivables and debts and all other asset values and their basis; real and legal persons who have receivables or debts from them, information on the amount and basis of the receivable or debt, at the latest, from the date of publication of the decision to freeze the assets in the Official Gazette. salt to the Presidency within days.
All kinds of savings and transactions made contrary to the decision to freeze the assets are null and void. Regarding these savings and transactions, the provisions of the Turkish Civil Code on the protection of goodwill are reserved.
If it is decided to freeze the assets in Turkey, a criminal complaint is filed by the Financial Crimes Investigation Board with a request to open an investigation pursuant to the CMK. The decision to freeze the assets is carried out in the form of seizure without delay, pursuant to Article 128 of the CMK, upon the request of the Presidency.
It should not be forgotten that a grave and disproportionate measure such as freezing a person’s assets and being associated with terrorism without sufficient evidence will result in a violation of the right to property and the presumption of innocence regulated in the ECHR and our legal legislation.DECISION ON THE FREEZING OF PERSONS’ ASSETS WITHIN THE PREVENTION OF THE FINANCING OF TERRORISM AND ACTIONS AGAINST THIS DECISION