Transcript Slayt 1

Ministry of Finance
Financial Crimes Investigation Board
Seizure and Confiscation of
Proceeds of Crime and
International Cooperation
•Legislative framework
•Administrative and Judicial Cooperation in Turkish System
•Case Study
•Role of Turkish Financial Intelligence Unit (MASAK)
Seminar on Asset Recovery Offices
Belgin AKSU ÇANGA
14-15 December, 2011
Finance Expert
Ankara
MASAK
Financial Crimes
Investigation Board
• Established in 1996
• Administrative body, works under the Ministry of Finance
• Turkish financial intelligence unit
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Functions
•
Policy and legislation
•Information collection, analysis and
evaluation
•Investigation
•Supervision
•Coordination
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Money laundering
offence in Turkish Law
Predicate offence
an offence requiring a
minimum penalty of six
months
or
more
imprisonment,
Proceeds of crime
Proceeds obtained from
the offence
Money laundering
• transfers abroad the proceeds
obtained from the offence 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
• without participating in the
commitment of the offence
mentioned above purchases,
acquires, possesses or uses the
proceeds which is the subject of
that offence knowing the nature 4of
the proceeds
Penalty of ML Offence
Sanctions
• Imprisonment
• 3-7 years for the acts set in p.1
• 2-5 years for the acts set in p.2
• Judicial fine up to 20.000 days (100.-TL-2.000.000.-
TL)
• Confiscation of goods and benefits (Turkish Penal
Code, Articles 54-55)
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Aggravating Circumstances
In case ML offence is
•
committed by a public officer or professional person
•
conducted in the course of the activities of an organization
established for the purpose of committing an offence
Penalty of ML Offence
Sanctions for Legal Persons
•Administrative Fine (10.000.-TL - 2.000.000.-TL)
(Law Number 5326, Article 43/A)-(Amended by Law No.
5918 on 09.07.2009)
•Confiscation (Turkish Penal Code, Article 60)
•Cancellation of License (Turkish Penal Code, Article 60)
Terrorist Financing Offence
(Anti-Terror Law No 3713, Article 8)
Whoever knowingly and willfully provides with or
collects fund for committing partially or fully terrorist
crimes, shall be punished as a member of an
organization. The perpetrator is punished in the same
way even if the fund has not been used.
Penalty of TF Offence
Sanctions
Turkish Penal Code No 5237, Article 314
Any person who becomes a member of the armed
organisation shall be sentenced to a penalty of
imprisonment for a term of five to ten years.
Turkish Penal Code No 5237, Articles 54-55
•Confiscation of goods
•Confiscation of benefits
Penalty of TF Offence
Aggravating Circumstance
(Anti-Terror Law, Article 8 / A)
•In case the perpetrator is a public officer and the crime is
committed through the use of the office the
imprisonment penalty is increased by half.
Penalty of TF Offence
Sanctions for Legal Persons
•Administrative Fine (10.000 TL-2.000.000 TL) (Law
Number 5326, Article 43/A) (Amended by Law No. 5918
on 09.07.2009)
•Confiscation (Turkish Penal Code, Article 60)
•Cancellation of License (Turkish Penal Code, Article 60)
Monitoring Money Flows
Republic of Turkey
Ministry of Finance
Financial Crimes Investigation Board
Disclosure to Customs Administration
• Passengers
Customs Administration
•An administrative fine
disclose fully and accurately on the request of
with one tenth of the value carried
and of the difference between the
value carried and disclosed
respectively
•If the circumstance is considered as suspicious, it shall be conveyed to
the MASAK
Republic of Turkey
Ministry of Finance
Financial Crimes Investigation Board
Issues regarding wire transfers
•Obliged parties are required to identify their customers when
the amount of a single transaction or the total amount of
multiple linked transactions is equal to or more than TRY
2.000 in wire transfers
•STR types in MASAK General Communiqué No: 6
•Banks and PTT are required to take measures to control of
customer and to complete the missing information in wire
transfer messages and documents and update them
Republic of Turkey
Ministry of Finance
Financial Crimes Investigation Board
Relationships with risky countries
• To pay special attention to business relationships and
transactions in risky countries
• To obtain information about the purpose and the nature of the
transactions
• To record the information
Republic of Turkey
Ministry of Finance
Financial Crimes Investigation Board
Money transfer information to MASAK
• Under Foreign Exchange Legislation, information of money
transfers to abroad exceeding 50.000 USD and equivalent
foreign exchange are reported to Turkish Central Bank (TCB)
by banks and subsequently this information are conveyed to
MASAK quarterly
•Daily EFT transactions are transmitted by banks to MASAK
as cumulative data
Seizure and Confiscation of Proceeds of Crime
Seizure
The measures related to seizure are specified in articles 123134 of CPL in the section titled “Search and Seizure”.
In accordance with the article 123 of CPL, the asset values
which are considered to be useful as evidence or to be
constituted the subject of confiscation shall be seized.
Law No. 5271
Seizure and Confiscation of Proceeds of Crime
Article 17 of the Law No. 5549 broadens the scope of
Article 128 CPL for seizure of assets by extending it to
money laundering and financing terror.
Accordingly;
In cases where there is strong suspicion that the
offences of money laundering and financing terror are
committed, the asset values may be seized in
accordance with the procedure in article 128 of Criminal
Procedure Law No. 5271.
Law No.5549 & 5271
Seizure and Confiscation of Proceeds of Crime
According to Article 128 of CPL,
Seizure decision in accordance with this Article shall only be given by
judge.
On the other hand
According to the Article 17 of 5549,
Public Prosecutor shall also give seizure decision in case of any delays
giving rise to inconvenience.
The seizure applied without the judicial decision is submitted for the
approval of the judge on duty at the latest in twenty-four hours.
The judge shall decide on whether it will be approved or not at the latest in
twenty-four hours. The decision of Public Prosecutor’s Office shall be
invalid in case of non-approval.
Law No.5549 & 5271
Seizure and Confiscation of
Proceeds of Crime
Confiscation
•Confiscation of goods
• Confiscation of benefits
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Seizure and Confiscation of Proceeds of Crime
“Confiscation of goods” and “confiscation of benefits” are established
in Articles 54 and 55 of the TCL.
- “Confiscation of goods” (Art. 54 of TCL)
- “Confiscation of benefits” (Art. 55 of TCL)
Both include provisions for confiscation based on value.
Law No.5237
Seizure and Confiscation of Proceeds of Crime
Confiscation of goods (Art. 54 of TCL)
• Goods used in committing a deliberate offence or
allocated for committing an offence or derived from an
offence
• Goods prepared for use in commission of an offence
•Goods whose production, disposition, usage,
transportation, purchase and sale constitute a crime
Law No.5237
Seizure and Confiscation of Proceeds of Crime
Confiscation of benefits (Art. 55 of TCL)
The material benefits,
• obtained from committing a crime,
• constituting the subject of the crime or
• provided for committing the crime,
• along with the economic proceeds obtained by the
holding or conversion of them,
shall be confiscated.
Law No.5237
 Regulation Regarding the Investigation of Laundering
Offence
 Article 11
 MASAK or examiners may request for seizure on asset
under Article 17 of the AML Law in cases where there
is strong suspicion that money laundering offence is
committed.
 Only MASAK may request for seizure on asset under
Article 17 of the AML Law in cases where there is
strong suspicion that terrorist financing offence is
committed.
Administrative Cooperation
Administrative Cooperation
MASAK is authorized;
• to carry out international affairs,
• to exchange views and information for the subjects in the sphere of
its duties
• to exchange information and documents with counterparts in
foreign countries,
• to sign memorandum of understanding.
Law No. 5549 art.19/l-m
Administrative Cooperation
Administrative Cooperation through Egmont Group
• MASAK has been a member of Egmont Group since 1998.
• MASAK exchanges information with FIUs through the Egmont
Secure Web and MOUs.
International Information Exchange Statistics (2010)
Requested from MASAK
Requested by MASAK
Number of
countries
Number of
requests
Number of
countries
Number of
requests
43
188
27
63
Finland
Portugal
Mongolia
Croatia
Albania
Romania
Norway
Senegal
Georgia
South Korea
Indonesia
Sweden
Japan
Syria
Jordan
Canada
Luxemburg
Ukraine
Turkish Republic of Northern Cyprus
United Kingdom
Monaco
Belarus
Afghanistan
Macedonia
Bosnia Herzegovina
Australia
Judicial Cooperation

Mutual Legal Assistance (MLA)

Fulfillment of legal assistance requests on the basis of the
bilateral and multilateral agreements

Lack of bilateral or multilateral agreement and reciprocity rule
Major International Conventions to which Turkey
is a party
 European Convention on Mutual Assistance in Criminal
Matters
 Additional Protocol to European Convention on Mutual
Assistance in Criminal Matters
 European Convention on the International Validity of
Criminal Judgments
 Since
The Additional Protocol of the European
Convention on Mutual Assistance in Criminal Matters
includes legal assistance on financial crimes, mutual legal
assistance requests are not rejected for the reason that the
offence is of a fiscal nature.
 A request for assistance shall include:
o
o
o
o
o
The authority making the request
The object of and the reason for the request
Where possible, the identity and the
nationality of the person concerned
Where necessary, the name and address of
the person to be served
A description of the criminal matter
including a summary of the facts and, if
applicable, offences and penalties concerned
CASE STUDY
(AVATAR)
“Letter of Request” of Jersey Attorney General has been sent to
Turkish Ministry of Justice
 The attorney General seeks to confiscate £120 million from
Person X
 Turkish Ministry of Justice requested from MASAK to make an
investigation regarding the case stated in the “Letter of Request”
of Jersey Attorney General
 MASAK has completed its investigation and sent the report to
Ministry of Justice
•Person X and his illegal activities
•3.000 kg cocaine was imported into Europe from Venezuella in 1991-1992
by Person X
•In 1997, he was convicted in Holland of running an organised crime
syndicate that imported 317 kg cocaine
•In 1997 he was also convicted of the killing of a Turkish inmate in
prison-he was released from prison in June 2007
•In July 2007 he directed the importation of £1 million cannabis into
Jersey from Holland
•He was arrested in July 2007 and convicted of that crime in October
2009
•Person X opened an account at a Currency Excange Bureau in the UK.
•£20 million was laundered through this account between 1994-1996.
•$ 5.7 million and DEM 2.1 million was sent to the accounts of Person Y (19
years old) held in Switzerland.
•Accounts of Person Y were only kept open for nine months and also received
money transfers from Turkish institutions and banks.
• Some close relatives of Person Y have been convicted of drug trafficking
for 5-20 years imprisonment
• Some close relatives of Person Y were the subject of 4 money
laundering cases which predicate offences were drug trafficking-(No
conviction)
• Big amount of money transferred to Person Y from different persons
• Persons transferred money to the accounts of Person Y were the
workers of different companies such as:
• textile companies,
•transportation companies,
• jewellery,
• Person Y was only 19 years old in 1994 and had no business activities
• Persons transferred money to Person Y were just the workers of
different companies
•Father and uncle of Person Y were convicted of drug trafficking several
times in 1990s
•Father and uncle of Person Y together with the persons transferred
money his accounts were subjects of money laundering cases
As a conclusion:
It is obvious that these money transfers were related to the drug
trafficking activities of father and uncle of Person Y and Person X
Identification
Return
Asset
Recovery
Confiscation
or Forfeiture
Investigation
Tracing
Freezing
Asset
=
Recovery
Financial
Research
Tracing
Tracing
Identification
Identification
 Proactive sharing of intelligence with law enforcement




and prosecutors
Provision of ancillary intelligence
Having Expertise in financial sectors, products and
matters
Personal contacts and networks with domestic and
international institutions (public or private, financial
or non financial)
Having the ability to institute an administrative freeze
To facilitate tracing and identification of proceeds
of crime subject to decision of blocking, seizure
and confiscation
 To have the authority of access to databases
 To have the authority of obtaining information
including financial one from relevant real and
legal persons
 To have the authority of conducting joint
investigations with other authorised units
 To be a central unit
 To facilitate tracing of criminal assets
 To participate in confiscation procedures
 Ensure sound management of seized assets
 To serve as a central contact point for financial
intelligence and confiscation efforts at the
international level
 To collect relevant statistics on asset freezes and
confiscations
 To be in charge of seizing criminal proceeds
 To serve as a focal point for international requests
statistical record-keeping and training
ARO
MASAK
Asset Recovery Office
MASAK is unigue financial intelligence
unit.
Under Law No: 5549, it has the
following functions:
•Policy and legislation
•Information collection, analysis and
evaluation
•Investigation
•Supervision
•Coordination
Functions of the ARO
Authorities of the MASAK
Access system
Having access to all related databases such as
land registry, company registry, motor Law No: 5549
vehicles, convictions, tax, police and financial
institutions records in order to identify and Article 9 – By the Presidency, an access
trace the proceeds of crime
system may be established to the data
processing systems of the public institutions
and organizations, and institutions and
organizations in the nature of public bodies
which keep records regarding to economic
activities, wealth items, tax liabilities, census
information and illegal activities in
accordance with their laws or activities within
the principles and procedures defined
together by the Ministry and competent
authorities of related Ministry and
institutions and organizations in the nature
of public bodies.
Functions of the ARO
Authorities of the MASAK
To have the authority of obtaining information Law No: 5549
including financial one from relevant real and legal
persons
Providing information and documents
Article 7 – (1) When requested by Presidency or
examiners, public institutions and organizations,
natural and legal persons, and unincorporated
organizations shall provide all kinds of information,
documents and related records in every type of
environment, all information and passwords
necessary for fully and accurately accessing to or
retrieving these records, and render necessary
convenience.
Duties and Powers of the Presidency
Law No: 5549
Article 19 1/j
…
j) To request all kinds of information and
documents
from
public
institutions
and
organizations, natural and legal persons, and
unincorporated organizations.
…
Functions of the ARO
Authorities of the MASAK
To have the authority of conducting joint Duties and Powers of the Presidency
investigations with other authorised units
Law No: 5549
Article: 19 1/f-g
…
f) To request for examination from law
enforcement and other relevant units in their
fields, when required during the evaluation
period.
g) To carry out or to have carried out
examinations on the subject matters of this
Law.
…
Functions of the ARO
Authorities of the MASAK
To facilitate tracing and identification of Under the authority of Law No: 5549,
proceeds of crime
MASAK can obtain any information of
public registration, tax liability, assets
and illegal activities
(Law No: 5549 ,Article 7, 9 and 19/ı(j)
Functions of the ARO
To conduct effective cooperation with other
FIUs and judicial authorities
Authorities of the MASAK
Duties and Powers of the Presidency
Law No: 5549
Article 19 h/m
…
h) To examine the cases conveyed from
Public Prosecutors and to fulfill the requests
relating to the determination of money
laundering offence.
m) To exchange information and documents
with counterparts in foreign countries, to
sign memorandum of understanding that is
not in the nature of an international
agreement for this purpose.
The CoE Convention on laundering, search, seizure and
confiscation of the proceeds from crime and on the
financing of terrorism (Warsaw 16 May 2005)
 Article
14- Postponement of domestic suspicious
transactions
“The FIUs or, if appropriate, other competent authorities or
bodies should be able to postpone a domestic suspicious
transaction.”
 Article 47- International cooperation for postponement of
transactions
“The FIU shouıld have the authority to postpone a
suspicious transaction at the request of a foreign FIU.”
The CoE Convention on laundering, search, seizure and
confiscation of the proceeds from crime and on the
financing of terrorism (Warsaw 16 May 2005)
 Article 33- Central Authority
“ The Parties shall designate a central authority which shall
be responsible for sending and answering requests, the
execution of such requests or the transmission of them to
the authorities competent for their execution.”
 Article 46- Co-operation between FIUs
“Parties shall indicate the unit which is an FIU within
the meaning of this article.”
 Financial research that will be conducted for the
decisions on freezing of assets to be taken by the
Assessment Commission shall be performed by
MASAK
 MASAK shall be responsible for executing the
decision on freezing of assets
 MASAK shall have the authority to give permission for
the management of the frozen assets to designated
person or persons
 MASAK may audit;
- whether persons or entities who hold assets act in
compliance with the decision of freezing or not,
-whether the frozen assets are managed in
compliance with this Law or not.
 Secretariat services of the Assessment Commission
shall be performed by MASAK
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