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Combating Against the Financing of Terrorism in Turkey*

November 2010 - Corporate & Commercial. Legal Developments by ADMD Law Office .

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By means and tools of the global information age, terrorist organizations are broadening their reach in gathering financial resources to fund their operations.

Sources of financing include legal enterprises such as nonprofit organizations and charities (whose illicit activities may be a small or large proportion of overall finances, known or unknown to donors); legitimate companies that divert profits to illegal activities; and illegal enterprises such as drug smuggling and production, bank robbery, fraud, extortion, and kidnapping. Websites are also important vehicles for raising funds. The proliferation of terrorist websites link for addresses for contributions is at least circumstantial evidence of their usefulness.

Established Money laundering techniques are utilized by terrorist groups in order to clean dirty Money to fund members. Widely used techniques are the transfer of important financial deposits to a large number of small bank accounts below the thresholds of control, to take advantage of off-shore banks escaping legal controls and trade mispricing where terrorist front companies declare false values of merchandises, use double invoicing or fabricate shipments altogether. Terrorists practice "inverse" Money laundering since they transform clean Money into dirty Money whereas in the case of organized crime things are happening just the other way round.

As a counter measure governments can freeze and block financial assets by labeling individuals or organizations as terrorists or as being associated with terrorism. These actions degrade terrorists' access to funds and increase the costs of raising, transferring, and using funds. This may reduce the resources that terrorists' can use to execute attacks and, hence, the geographic scope and lethality of their attacks.

International cooperation among government of global States works through a multilateral forum including the UN, the EU, the G8, the G20, the Financial Action Task Force (FATF), the Egmont Group and the international financial institutions. The comprehensive web of international conventions and protocols developed by United Nations and Institutions has established legal ground.

Turkey is among the few countries that have already signed and ratified all of those conventions. After 9/11, the UNSC stepped up its counter terrorism efforts by adopting resolutions 1373 and 1390. Resolution 1373 decided that member states shall prevent and suppress the financing of terrorist acts. Resolution 1390 (recently strengthened by Resolution 1455) continued sanctions against Usama Bin Laden the Taliban, al Qaeda and list of individuals and entities subject to the sanctions. The Security Council has also connected resolutions requiring member states to report on their national regimes for combating terrorist finance.

Turkey has showed her support to international fight against terrorism and financing of terrorism, and in this respect Turkey has taken some important steps. In December 30, 2001, Ministerial Council of Turkey decided to freeze all claims and the rights in banks and in the other financial institutions as well as in natural and corporate bodies including the values existing in deposit boxes in Turkey of the terrorist organizations, persons and the institutions, which stated in the UN Security Council Resolutions 1267/1999, 1333/2000 and 1373/2001. It is also asked to prohibit the entries and transit passages of the persons who are in the list of the UN. Within this context; The Council of Ministers of Turkey has published some Resolutions so far. Some of these resolutions are, 22th December 2001/3483, 21st March 2002/3873, 16th May 2002/4206, 01st October 2002/4896, 28th March 2003/5426, 18th February 2004/6876, 04th April 2005/8685, 17th April 2006/10356 and 2006/10365.

The FATF has served since 1989 as the world's pre-eminent setter of regulatory standards and best practices on anti-money laundering and counter terrorist finance. After 9/11 FATF adjusted its work in order to cope with terrorist finance.

Also of high importance is the cooperation with the private banking sector, especially if one considers that the amounts of finance which has been frozen so far rather small. Confidential cooperation with the financial sector in the highly developed countries as well as in the others is a key factor. Unofficial remittance mechanisms should also be closely monitored. Another important subject for cooperation between the relevant international institutions and the banking and financial sector concerns the establishment of appropriate legislation in individual countries. Financial institutions can assist governments and their agencies in the fight against terrorism through prevention, detection and information sharing. They should seek to prevent terrorist organizations from accessing their financial services, assist governments in their efforts to detect suspected terrorist financing and promptly respond to governmental enquiries.

"Know your customer" policies and procedures is important to the fight against terrorism. Specifically the proper identification of customers by financial institutions can improve the efficacy of searches against lists of known or suspected terrorists issued by competent authorities having jurisdiction over the relevant financial institution. Monitoring and then identifying and reporting unusual or suspicious transactions may assist government agencies by linking seemingly unrelated activity to the financing of terrorism. The main aspects of a bank's monitoring process were outlined: screening, also known as filtering of payment instructions prior to their execution; searches, identification of past transactions; monitoring the process of monitoring transactions after their execution to identify unusual activity; need to establish patterns to replicate in search mechanisms. As a general rule, not all large transactions are unusual, and not all unusual transactions are suspicious.

Presidency of Financial Crimes Investigation Board (MASAK) is an administrative institution and operates directly to the Minister of Finance in Turkey. The mission of MASAK with regard to preventing money laundering, terrorism financing and detecting these offences is to make policies and to contribute making regulations, to collect information fast and reliably and to analyze them, to carry out investigation and research, and to convey the information and the results to relevant authorities.

According to MASAK General Communiqué No:3, published in Official Gazette on February 7, 2002, the following transaction type is added to the 19 suspicious transaction types, determined in order to help the obligators while they are carrying out their suspicious transaction reporting obligations by this Communiqué: "If suspect or have reasonable grounds to suspect that funds are linked or related to, or is to be used for terrorism or terrorist acts".

Other fundamental legislations on combating terrorism and terrorism financing in Turkey are Law No:3713 Fight Against Terrorism, Law No:5237 Turkish Criminal Code and Law No: 5271 Criminal Procedure Law. Terror crimes are determined in the Article 3 of the Law on Fight Against Terrorism and crimes committed for terror purposes are stipulated in Article 4 of the mentioned Law. To be considered as terror crimes, the crimes stated at Article 4 have to be committed with the purpose of the activities mentioned at Article 1. Special criminal courts and public prosecutors in their jurisdictions were authorized for investigations and prosecutions of crimes against state security, under Article 250 of Criminal Procedure Law No. 5271. And according to Article 9 of Law No. 3713, crimes included within the scope of this Law shall be tried in heavy penal courts specified in paragraph one of Article 250 of Criminal Procedure law.

The Law No. 5532 amended Article 8 of the Law No. 3713. In accordance with this article which is very similar to the definition noted in Article 2 of UN Convention for Suppressing of Financing of Terrorism (1999); "Those who knowingly or willingly provide or collect funds, that they would be entirely or partially used to commit terror crimes, shall be punished as a member of the terrorist organization".

It is stated under the "Confiscation of goods" title at Article 54 of Turkish Penal Code No. 5237 that: "Provided not belonging to the bona fide third parties, the goods used in committing a deliberate offence or allocated for committing an offence or derived from a crime shall be confiscated." In addition Article 55 of the same code states that: "The material benefits derived from committing a crime or constitutes the subject of the crime or provided for committing the crime with the economical earnings obtained by the deposition or conversion of them shall be confiscated". Since to provide or collect funds to be used to commit terror is an independent crime according to this Article, it is very clear that the goods used in or allocated for or derived from or material benefits derived from such crimes shall be confiscated.

Moreover modern investigation techniques are utilized on Combating Terrorism under Criminal Procedure Law No.5271 such as interception of communication, technical surveillance, confiscation of criminal profits, witness protection, undercover operations, setting up conspiracy investigation groups in investigations. Article 128 of the same code designates that in cases where there is a strong suspicion that the offence subjected to the prosecution or investigation has been committed, assets proceeded from the offence belonging the suspect or accused, may be seized by the decision of a Judge.

 

*This brief information note is drafted by ADMD with assistance and use of excerpts from the publication titled ‘Combating Against Terrorism with Financial and Legal Means', (Ankara, Adalet Publishing, 2008 by Mr. Tulga UYAR tulga970@hotmail.com a 3rd Grade Senior Superintendent, Lecturer in Police Academy, Ankara, Turkey


 

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