Corporate criminal law, also known as “business crime” or ‘white collar crime’, regulates the liability of legal persons (e.g. companies, associations, organizations). This area of law is concerned with crimes that are tolerated, facilitated or provoked in the course of the work of a company, association or organization. It is a group of nonviolent crimes committed by individuals in the course of their legitimate employment, for the benefit of their organization. Such individuals generally do not consider themselves as criminals, nor do they consider their activities to be criminal. Such crimes include fraud, health care fraud, tax fraud, business fraud, securities fraud, bank fraud, bribery, foreign and domestic curruption, money laundering, public corruption, false accounting, tax fraud, embezzlement, insider trading, cyber-crime, intellectual property infringement, customs violations, environmental crimes, racketeering, identity theft, and forgery etc.

Becoming legally savvy is important no matter where you are in business. The word savvy basically means you have a practical understanding of how business and law really work. This is very important for business success and for success in your own personal career. 

Criminal liability of companies

In general, legal entities cannot be held criminally liable because according to the prevailing opinion in Turkey they are neither capable of acting nor culpable in the criminal law sense. Nonetheless, under Article 60 of the Turkish Criminal Code (TCC), companies must pay a fine if a manager, board of directors or other representative in a managerial function has committed a criminal or administrative offence within the framework of the activity exercised, as a result of which duties of the company have been violated, or where the company has been enriched or was intended to be enriched. In the sense of strict accessoriness, the elements of the offence, illegality and culpability must be given with regard to the underlying criminal offence. However, the identity of the specific offender does not need to be established.

Moreover, Turkish civil law contains several provisions to hold corporate entities accountable. In cases where a fine has been imposed pursuant to Article 60 of TCC, claims under tort law are regularly considered. Claims for damages may arise in connection with the violation of a Debt Act. Accordingly, the actions (wrongful acts) of the company’s representatives are attributed to the company itself. In addition, an entity that entrusts another individual with the execution of an instruction is obliged to compensate for the damage that the other individual unlawfully causes to a third party in the execution thereof. The obligation to pay compensation for damage shall not apply if the employer has exercised due care in the selection of the person instructed and in the procurement or direction of the work. The provision shall also not apply if the damage would have occurred even if such care had been exercised.

If the company had a contractual agreement with the injured party, contractual liability can also be considered under the relevant norms of the law of obligations. The conduct of the employee as a ‘vicarious agent’ is then attributed to the company. 

Under Turkish law, companies can be held criminally liable for a list of criminal activities committed by their managers or employees in the interest or for the benefit of the company. The sanctions applicable to companies include fines, disqualification and confiscation of the proceeds of crimes. 

The list of predicate offenses is constantly updated and expanded. It currently covers a wide range of economic crimes such as corruption, tax fraud and fraud against the state, market manipulation and insider trading, false accounting, money laundering, trafficking stolen goods, health and safety offences, intellectual property offences, infringement of trademarks and environmental offences. 

Safeguards

Corporate liability has the nature of criminal liability, with the consequence that all the related principles and safeguards provided for by criminal law (ie, the personality of criminal liability) must be applied.

The responsibility for investigating and prosecuting of crimes committed by a company lies with the ordinary prosecution authorities, in accordance with the rules of criminal procedures and within the framework of criminal proceedings under the jurisdiction of the criminal courts, which are usually combined with criminal proceedings against the managers or employees who committed the predicate offence.

In the Turkish legal system public prosecutors are responsible for investigating and prosecuting all crimes, including economic crimes, committed by both individuals and companies. They are assisted by law enforcement agencies (police, jandermeria, coast guard, customs security). 

Crimes & administrative offences & civil  offences

Turkish law on economic crimes, administrative offences and civil offences is not only complex, but also constantly evolving. Criminal investigations are often conducted in parallel with civil or administrative proceedings.  Because decisions in one action can affect the others, it is imperative that these different prongs be led by counsel with experience in each of these types of proceedings.

We understand the legal bureaucracy, how and with whom to work throughout the investigative process, and how and when to strongly advocate for our client’s position.  We represent clients in a broad range of industries, including healthcare, financial services and brokerages, government contractors and public utilities, automotive and oil companies, airlines, high technology and e-commerce, life science and biotechnology, media and telecommunications, retail and apparel, real estate.

Corporate crime victims

We also represent clients who are victim of corporate crime.  We guide them through the relevant investigative agencies and advocate for criminal prosecution, administrative investigation and restitution where appropriate.

Jurisdiction of Turkish courts

The main principle of governing the jurisdiction of Turkish courts, both for individuals and companies, is territoriality, which means that Turkish courts have jurisdiction over all crimes deemed to be or have been committed within the territory of Turkey.

The principle of territoriality is interpreted in a broad sense and with a wide scope as it is sufficient that a portion of the prohibited conduct takes place in Turkey for it to be under Turkish jurisdiction. Therefore, foreign companies that have their registered office and principal place of business abroad can be subject to Turkish law and prosecuted in Turkey if at least a part of the offence committed by their managers or employees took place in Turkey and where if all other conditions for the company’s liability are fulfilled.

Preservation of corporate reputation

Due to the nature of white collar and civil fraud matters, it is critical that steps are taken to preserve the reputation of our clients in their dealings with shareholders, regulators, and the press, among others.  A particular strenght of Bicak in this area is our ability to minimize potential negative publicity through swift action and strategy.

Our services cover crimes committed either by a corporation (i.e., a business entity with legal personality separate from the natural persons who direct its activities), or by individuals acting on behalf of a corporation or other business entity. For the most serious  corporate crimes, corporations may face judicial dissolution, referred to as the “corporate death penalty”, which is a legal process whereby a corporation is forced to dissolve or cease to exist.

Negative behaviour

Not all negative behaviours by companies may actually be criminal. Behaviour may be governed by civil law, administrative law or criminal law. In deciding to sanction a particular behaviour, the legislator makes the political judgment that this behavior is sufficiently culpable to deserve the stigma of being labelled as a civil wrong, an administrative offence or a crime. In Turkish law, corporations can commit most illegal activities as natural persons.

Categories of corporate crime

• White-Collar crime, the majority of individuals who may act as or represent the interests of the corporation are white-collar professionals;
• Organized crime, where criminals may set up companies either for the purposes of committing a crime or as a vehicles for launderingthe proceeds of crime.
• State-Corporate crime, in many contexts, the opportunity to commit crime emerges from the relationship between the corporation and the state.
• Crimes committed against corporations by officers, directors and employees (fraud, theft, embezzlement, corruption),
• Crimes committed against corporations by external forces (robbery, burglary, larceny, piracy),
• Crimes committed against corporations by internal Forces (regulatory noncompliance, tax evasion, bribery, false financial statements).

Decisive action

Corporate crime can have devastating effects. These issues require swift and decisive action, whether preventative or reactive.

Our expertise covers all areas of law relating to bribery and corruption, sanctions, fraud, money laundering, insider dealing, cartels and corporate manslaughter. We have decades of experience advising and representing financial institutions, multinational corporations and senior executives.

The largest and most esperienced

With one of the largest and most experienced white-colour crime and investigations practices, our world class team covers all major cities in Turkey, bringing outstanding results for clients by drawing on market-leading legal skills, commercial acumen, local knowledge and insight into the relevant regulatory and law enforcement agencies.

Trust

Clients trust us to handle their most complex and sensitive compliance and investigations work in Turkey. They rely on us to

• Advise on preventative measures, so that they can be confident they are protected in their ordinary operations and extraordinary transactions – even in times of trouble
• Protect their business in terms of health and safety at work, delegating appropriate authority and reporting obligations throughout the management chain of a business (including for environmental matters), and having an adequate system of internal controls
• Dealing with emergencies arising from investigations and defending them (as a company or individual) against criminal charges in court, including charges of misconduct with public bodies, the Competition Authority, MASAK, tax fraud and bankruptcy
• Provide comprehensive assistance when clients are victims, whether as a business or an individual.

“Long-arm” laws

The risks associated with bribery and corruption incidents have increased dramatically in recent years. “Long-arm” laws such as the UK Bribery Act and the US Foreign Corrupt Practices Act are being aggressively enforced, a plethora of domestic legislation has emerged, and regulatory and law enforcement scrutiny across Turkey is at an all-time high. All this means that companies need be able to effectively prevent, detect and respond to bribery and corruption incidents, wherever they operate in Turkey. We are working on some of the largest, most sensitive and complex corruption cases in Turkey today. We provide risk assessments, training, due diligence, internal reviews, documentation and other advice to clients of all sizes to ensure they are fully prepared to meet their compliance obligations and avoid problems arising. 

Anti-money laundering (AML) and counter-terrorist financing (CTF) legislation can apply to those inside and outside the financial sector. It is a key area of focus for regulators and law enforcement agencies across Turkey with potential consequences including criminal prosecution of organisations or individuals, and regulatory enforcement action threatening businesses. We can help you with issues such as developing policies and procedures, reviewing systems and controls, providing training, advising on disclosure and reporting, assessing the potential for criminal and civil liability, assisting with internal and external investigations, and AML/CTF in a transactional context.

Reputational risks

The risk of falling victim to fraud and other white-collar and corporate crime poses significant reputational risks for companies and individuals, not least the potential exposure to highly damaging civil, criminal and administrative sanctions. It requires a strategic and seamless approach, the ability to deal with a range of different law enforcement agencies and regulators, and advice on contentious and non-contentious aspects and related issues such as public relations, shareholder communications, insurance and employment. 

Sanctions

The rapid implementation and ever-expanding scope of Turkey’s specific sanctions regime continues to raise a myriad of pressing issues for companies and financial institutions. These include understanding the jurisdictional scope and impact of sanctions, including issues such as the effect of asset freezes, co-ownership by sanctioned persons, licensing issues, the interpretation of sectoral sanctions and force majeure, frustration and termination issues affecting contracts with sanctioned counterparties. We have been extensively involved in advising both financial sector and corporate clients with sanctions-related activities, and in submitting licence applications to the relevant authorities.

Fines are always imposed if a company is convicted. The amount of the fine depends on factors such as the nature and seriousness of the offence, the degree of liability of the company, the measures taken by the company to eliminate or reduce the consequences of the offence and to prevent the commission of further offences, and the economic and financial situation of the company.

Disqualifications may include the suspension or revocation of government permits, licences or concessions, debarment (prohibition from entering into contracts with the public administration), exclusion from or revocation of government financing, contributions or subsidies, and prohibition from engaging on business activities. Disqualifications only apply in the event of a conviction of the company. Disqualifications can be particularly damaging, and this is reinforced by the fact that they can also be applied as interim coercive measures at the pretrial stage, during the investigations. The application of interim coercive measures, such as disqualifications, is ordered by the investigating judge at the request of the public prosecutor.

Confiscation of criminal assets seeks ultimately to reduce and prevent crime by demonstrating that criminals will not be allowed to enjoy their illegal wealth. Criminal proceeds are the money or assets obtained by criminals during the course of their criminal activities.

Investigations

Investigations by law enforcement and regulatory agencies into alleged wrong-doing have increased dramatically in number, severity and complexity in recent years. Criminal investigations have two primary and overlapping functions in the administration of criminal justice: (1) to determine whether a crime has been committed (and if so to identify and, where appropriate, arrest the person or persons responsible); and (2) to gather evidence that would be admissible at trial and sufficient to prove the guilt of those ultimately charged  with responsibility.

The length and complexity of this process, and the range of investigative techniques used, vary tremendously. In a very simple “street crime,” a suspected perpetrator may be identified and arrested immediately on a reactive basis, and the evidence-gathering may be straightforward and limited in scope; in more complicated matters, investigations may be proactive and take months or even years in order to review and gather evidence before a decision can be made to prosecute.

Local factors

Combined with an understanding of local factors in Turkey, we are equally adept at handling enquires to bribery and corruption, fraud, money laundering, trade and economic sanctions violations, antitrust, securities fraud, tax evasion, environmental violations, improper accounting practices and other misconduct.

We can also help clients with crisis management and critical issues such as potential legal and regulatory exposure, disclosure and reporting obligations, and dealing with media and other reputational issues arising from investigations.

Corporate criminal defence lawyers on your side

By appointing Bicak Legal Attorneys as your legal representatives, you will have an exceptional team of highly skilled criminal defence lawyers on your side. We will draw on our invaluable experience and breadth of technical knowledge, to build a strong and robust defence strategy for you, tailored to the specific circumstances of your case.

Contact our Corporate Business Criminal Advocates by calling +90 (0)532 377 01 06 or reporting it online.