Introduction

Article 128 of the Code of Criminal Procedure No. 5271 (“CCP”) allows for the seizure of immovable properties, rights, and receivables belonging to the suspect or accused, upon a judge’s decision -or, in cases of urgency, upon the decision of the public prosecutor- provided that there exists a strong suspicion based on concrete evidence that a crime has been committed.

With the introduction of Article 128/A to the CCP by the “Law on Amendments to the Turkish Criminal Code and Certain Laws and Decree Law No. 631”, a new measure has been introduced to Turkish law with respect to certain offences under the Turkish Criminal Code No. 5237 (“TCC”) that can be committed through information systems.

Under this regulation, in the presence of reasonable suspicion that the offences of aggravated theft, aggravated fraud, or misuse of bank or credit cards have been committed, banks, payment service providers, and crypto asset service providers (“CASPs”) are authorized to suspend the related financial account for up to 48 hours.

Rationale of the Regulation

The digitalization of financial systems and the development of crypto asset markets have enabled the rapid transfer of proceeds of crime between different financial accounts within very short periods or their concealment through anonymous digital wallets. This has, in practice, led to a weakening of the effectiveness of traditional seizure measures due to delays in their implementation. Accordingly, there has emerged a need for faster financial measures aimed at preventing the swift movement of illicit proceeds and ensuring the protection of victims.

In line with this need, the regulation provides that, where information or documents giving rise to reasonable suspicion of the specified offences exist, financial accounts subject to transactions carried out or attempted through banks, payment service providers, or CASPs may be suspended by the relevant institutions for up to 48 hours.

In this respect, the regulation constitutes a preventive financial measure aimed at preventing the rapid transfer and concealment of proceeds of crime within the banking system, payment systems, and the crypto asset ecosystem.

A similar mechanism is also set forth under Article 19/A of the Law No. 5549 on the Prevention of Laundering Proceeds of Crime [1].

Procedure for the Suspension of Financial Accounts

Information regarding the suspension measure and account movements must be immediately notified to the Public Prosecutor’s Office and to the relevant account holder. The account holder may apply to the Public Prosecutor’s Office for the removal of the suspension measure, and such application must be decided within 24 hours at the latest.

If it is determined that the proceeds subject to the offence have been transferred to another financial institution before the completion of the suspension measure, the relevant bank, payment service provider, or CASPs must immediately notify the relevant financial institution in order to ensure the effective implementation of the measure.

Where it is established that the seized asset belongs to the victim of the offence, such asset shall be returned to its rightful owner during the investigation or prosecution phase.

Furthermore, upon request by the prosecution authorities or judicial bodies within the scope of an investigation or prosecution, banks, payment service providers, and CASPs are required to submit the requested information and documents within a maximum period of 10 days, either physically or electronically. Failure to comply with this obligation, or partial compliance, shall result in the imposition of an administrative fine.

Seizure as a Complementary Measure to Suspension

In addition to the temporary suspension of financial accounts, the regulation also allows for the application of seizure measures with respect to the proceeds of crime.

Accordingly, assets held in accounts suspended by financial institutions or upon the written order of the public prosecutor, and deemed to constitute proceeds of crime, may be seized upon a judge’s decision or, in cases of urgency, upon the written order of the public prosecutor, within the suspension period.

Seizure measures carried out without a prior judicial decision must be submitted for the approval of the competent judge within 24 hours. The judge must render a decision within 48 hours from the time of seizure; otherwise, the seizure shall automatically be lifted.

Moreover, for seizure measures applied under this article, the requirement to obtain an expert report as stipulated under Article 128 of the CCP does not apply.

Exemption from Legal Liability for Parties Ordering Account Suspension

The regulation exempts natural and legal persons who decide on the suspension of financial accounts from legal liability. Accordingly, banks, payment service providers, and CASPs acting within the framework of the law and their authority shall not be held legally liable for any damages that may arise from the suspension decision.

Anaylsis

The regulation aims to enable the swift and effective prevention of the rapid transfer and concealment of proceeds of crime within digital financial systems. However, the ability to suspend financial accounts, even for a limited period, and the powers granted to private actors constitute critical tools in combating financial crime, while at the same time requiring a careful balance with property rights and economic freedoms. In this respect, the framework reflects a broader global shift towards empowering financial intermediaries as frontline actors in the fight against increasingly sophisticated cyber-enabled financial crime.

For any questions on this topic, please feel free to get in touch with our team.