Business Crime and Investigations in Turkey


Corporate manslaughter

Regulatory provisions and authorities

1. What is the main legislation relevant to corporate manslaughter?

There is no specific law that regulates corporate manslaughter in Turkey. However, in the Turkish Criminal Code (Law No 5237), there is a general provision regarding negligent homicide which can be a legal basis for prosecution, depending on the specifics of the case.

Offences

2. What is the specific offence that can be used to prosecute corporate manslaughter?

Under Article 85 of the Criminal Code on negligent homicide, a person who causes another person’s death by negligent conduct will be punished with imprisonment from two to six years. However, under Article 20, which provides the principle of individual criminal responsibility, criminal liability is personal and no punitive sanctions can be applied to legal entities. Since corporations are legal rather than physical persons, they are not subject to criminal liability. Therefore, criminal offences can only be attributed to a real person who is responsible for taking necessary measures provided by a regulation or law.

Due to the lack of criminal liability of legal entities and a specific provision regarding corporate manslaughter, executives or employees of a corporation can be charged with negligent homicide under the general provision of the Criminal Code, if a person’s death is caused by negligent conduct and the breach of duty of care owed by the employees or the executives of a corporation.

The action must cause a person’s death. To qualify the action as negligent, the following must apply:

  • It must be unintended.
  • The consequences of the action must be foreseeable.
  • There must be a breach of duty of care.
  • The breach must have a causal relation with the incident, leading to a person’s death.

Defences

3. What defences or exemptions are available and who can qualify?

There is no specific defence for negligent homicide. However, if the elements of the offence (see Question 2) are not proven, executives or employees of corporation cannot be held liable.

The Criminal Code provides for several defences that are applicable to any criminal act, which are:

  • Execution of law. Anyone who fulfils a rule set out in law cannot be punished. However, the action must be carried out in accordance with all the conditions set out in the related provision, while fulfilling a duty arising from the legal requirement (Article 24/1).
  • Execution of a competent authority’s order. For the application of such defence, the order must be binding and given by the competent authority, and there must be a public law relationship between the authority and the addressee of the order (Article 24/2).
  • Self-defence. The offender does not bear any criminal liability when they execute an act to defend themselves or another person from an unfair assault where there is no other way of defence. However, the defence must be proportional to the assault (Article 25/1).
  • State of necessity. This applies where it is necessary to act in a way that will eliminate the danger with the aim of protecting themselves or other persons from the danger (Article 25/2).
  • Use of a right. Persons who act within their rights are not punished (Article 26/1).
  • Consent of the concerned person. This is applicable when the victim has consented to the defendant’s action. The consent cannot relate to a non-disposable right, that is, a right that cannot be disposed of, such as the right to physical integrity (Article 26/2).

Any suspect may qualify for the defences or exemptions explained above.

Enforcement

4. Which authorities have the powers of prosecution, investigation and enforcement in cases of corporate manslaughter? What are the authorities’ powers of prosecution, investigation and enforcement, and what are the consequences of non-compliance?

Prosecution authorities

The public prosecutor has the powers of prosecution, investigation and enforcement in cases of negligent homicide.

According to the principle of territoriality, if an offence is committed within the borders of Turkey, executives or employees of a corporation will be subject to Turkish laws regardless of their nationality (Article 8, Criminal Code). The extra-territorial jurisdiction of Turkish criminal courts for the offences that are either committed by either citizens or non-citizens is regulated in Article 13 of the Criminal Code. However, negligent homicide is not included in Article 13, so neither the public prosecutor nor the Turkish criminal courts have extra-territorial for cases of negligent homicide. Depending on the circumstances of the particular case, the regulatory authorities may interact with overseas regulators to obtain information.

For more information on the Ministry of Justice see box: The regulatory authorities.

Prosecution powers

Under Article 161/1 of the Criminal Procedure Law (Law No 5271), the public prosecutor can conduct all types of investigations, directly or through judicial police officers.

The public prosecutor will investigate the matter to decide whether it is necessary to initiate a criminal case, and if the evidence obtained during the investigation causes sufficient suspicion regarding the commission of the offence, will issue an indictment (Article 160/1). However, if the evidence is insufficient, the public prosecutor will not prosecute (Article 170/2).

A public prosecutor can appoint an expert at the investigation phase in disputes which require special or technical knowledge (Article 63/3).

Further prosecution powers are explained under the headings below.

Powers of interview

The suspect can be interviewed by police officials or the public prosecutor in relation to the crime investigated (Article 2/g, Criminal Procedure Law).

Powers of search/to compel disclosure

For police officers to conduct a search, a search warrant must be received from (Article 119/1, Criminal Procedure Law):

  • A judge.
  • A public prosecutor in cases where delay may cause inconvenience.
  • A police chief, with a written order, in cases where the public prosecutor cannot be reached.

However, where a search is to be conducted on dwellings, workplaces and in closed areas that are not open to the public, such order can only be given by:

  • A judge.
  • A public prosecutor, with a written order, where delay may cause inconvenience.

The result of the search conducted on the police chief’s written order must be immediately notified to the chief public prosecutor’s office (Article 119/1).

Powers to obtain evidence

During the investigation phase, the public prosecutor is responsible for preserving all the evidence for and against the suspect (Article 160/2, Criminal Procedure Law).

To arrest the suspect or the accused, or to obtain criminal evidence, a body search, a search of the property, or a search of the dwelling, the workplace or other places of another person can be conducted (Article 117/1, Criminal Procedure Law).

Turkey is party to several bilateral treaties on extradition and mutual assistance in civil and criminal cases. One of the treaties, the European Convention on Mutual Assistance in Criminal Matters 1979, authorises Turkish courts and public prosecutors to obtain evidence abroad.

Power of arrest

At the investigation phase, an arrest warrant for the suspect will be issued by the judge of the criminal court on the request of the public prosecutor if there is sufficient evidence to raise a strong criminal suspicion or reason for arrest (Articles 100/1 and 101/1, Criminal Procedure Law).

Turkish law does not provide a right of bail.

Court orders or injunctions

Court orders or injunctions are not relevant in cases of negligent homicide.

5. Which authority makes the decision to charge and on what basis is that decision made? Are there any alternative methods of disposal and what are the conditions of such disposal?

The public prosecutor must initiate a criminal case if the evidence obtained during the investigation causes sufficient suspicion regarding the commission of the offence. However, if the evidence is insufficient, a decision of non-prosecution will be made by the public prosecutor (Article 170/2, Criminal Procedure Law).

As an alternative method of disposal under the Criminal Code, the public prosecutor can decide not to conduct a further investigation if it is clear that either (Article 158/6, Criminal Procedure Law):

  • The action subject to the complaint or denunciation does not constitute an offence requiring any investigation.
  • The nature of the complaint or denunciation is abstract and general.

An objection can be raised to the decision of the public prosecutor by the complainant or denunciator under a procedure provided in Article 173 of the Criminal Procedure Law. If the objection is accepted, a second investigation will be commenced by the public prosecutor.

Conviction and sanctions

6. What are the penalties for corporate manslaughter?

As explained in Question 2, corporations do not have any criminal liability. However, under Articles 20 and 60 of the Criminal Code, there are several security measures that can be applicable to legal entities only if they are provided explicitly in the related provision and the offence is committed intentionally. Since the security measures for negligent homicide are not provided explicitly in Article 85 of the Criminal Code and negligent homicide cannot be committed intentionally because of the offence’s nature, it is not possible to impose security measures on a corporation in the case of negligent homicide.

Therefore, in cases of negligent homicide, employees or executives of the corporation will be sentenced to imprisonment from two to six years. Aggravating and extenuating circumstances are regulated in the relevant provisions of the Criminal Code. In Article 85, an aggravating circumstance is regulated; if the action has resulted in multiple deaths, or death(s) and injury, the perpetrator will be punished by imprisonment from two to 15 years (Article 85, Criminal Code).

Confiscation of property is provided for in Article 54 of the Criminal Code. Under this provision, a decision for the confiscation of the property can be issued by the court, if the property is used in the commission of an intentional offence, unless it is owned by a third party with good faith. However, such an order is unlikely to be made in a case of negligent homicide.

Safeguards

7. Are there any measures in place to safeguard the conduct of investigations? Is there a process of appeal? Is there a process of judicial review?

There are several measures set out under the Criminal Procedure Law that safeguard the conduct of the investigations. For example, unlawfully obtained evidence is excluded and not taken into consideration during the investigation (Article 206/2-b). Moreover, under Article 149, at any stage of the investigation and prosecution the suspect or accused can obtain legal support from one or more attorneys.

Judicial oversight is provided for under the Criminal Procedure Law both at the end of the investigation and after the court’s final decision.

At end of investigation

After the examination of all documents regarding the investigation phase, within 15 days from the submission of the indictment, the court can return the indictment to the prosecution, stating any deficient or faulty points relevant to the circumstances prescribed in the related provision (Article 174, Criminal Procedure Law).

A damaged party can raise an objection before a competent criminal court within 15 days from notification of a decision of non-prosecution. The events and the evidence that require the filing of the public case must be specified in the petition of objection (Article 173, Criminal Procedure Law).

After final decision

In the Turkish judicial system, the final decisions of the courts of first instance are subject to the examination of the Turkish regional court of appeal. The decisions of the Turkish regional courts of appeal can be examined by the Supreme Court.

Apart from the exceptions stated in Article 272 of the Criminal Procedure Law, in principle, final decisions of the courts of first instance can be appealed within seven days from the announcement of the decision, before the regional court of appeal. To give examples of the exceptions stated in Article 272, one can list the decisions for which the way of legal remedy had been closed by law and the decisions of acquittal given for crimes that require a judicial fine not exceeding five hundred days as the upper limit of the punishment .However, decisions regarding imprisonment of 15 years or more are sent for examination to the regional court of appeal ex officio

Except for the criminal chambers’ decision of reversal (that is, a decision reversing the decision of the court of first instance), a request of appeal for the decisions of regional court of appeal can be made within 15 days from the announcement of the decision to the Supreme Court (Articles 286 and 291, Criminal Procedure Law). The grounds for an appeal before Supreme Court are limited and only the wrong application of procedural or substantive law, or a factual error, can be a ground for appeal (Article 288, Criminal Procedure Law).

Health and safety offences

Regulatory provisions and authorities

8. What are the main regulatory provisions and legislation relevant to health and safety offences?

In addition to the provisions regulated under the Offences Against Public Health in the Criminal Code, the main legislation that provides for health and safety offences is the Occupational Health and Safety Law (No 6331). There are also various regulations concerning persons and corporations that concern managing health and safety matters.

Some examples of these regulations are as follows:

  • Regulation on Food Hygiene 2011 (No 28145).
  • Regulation on Protection of Buildings from Fire 2007 (No 12937).
  • Regulation on Health Principles for Swimming Pools 2011 (No 27866).
  • Regulation on Opening a Workplace and Business Licence 2005 (No 9207).
  • Regulation on Documentation and Qualities of Tourism Facilities 2005 (No 8948).
  • Regulation on Health and Safety Measures Concerning the Work with Asbestos 2003 (No 25328).
  • Regulation on the Safety of Medicinal Products 2014 (No 28973).
  • Regulation on Health and Safety Signs 2013 (No 28770).

Offences

9. What are the specific offences relating to health and safety?

In addition to offences regulated under the Criminal Code, criminal liability for offences relating to health and safety are regulated in Article 25/8 of the Occupational Health and Safety Law. Administrative and operational sanctions can also be imposed on persons who violate certain provisions of the Occupational Health and Safety Law (OHS) (see below).

Administrative penalties or operational sanctions can be brought against both individuals and corporate bodies. However, as explained above, since Article 25/8 of the OHS envisages a penalty of imprisonment, only individuals can be held liable.

Defences

10. What defences or exemptions are available and who can qualify?

There are no specific defences or exemptions prescribed in Occupational Health and Safety Law and other regulations.

Enforcement

11. Which authorities have the powers of prosecution, investigation and enforcement in cases of health and safety offences? What are the authorities powers of prosecution, investigation and enforcement, and what are the consequences of non-compliance?

Prosecution authorities

The public prosecutors are responsible for investigating the cases concerning criminal liability under the Criminal Code and Article 25/8 of the Occupational Health and Safety Law (OHS) (see Question 4).

Moreover, administrative investigations are conducted by the Ministry of Labour and Social Security in relation to the issues of occupational health and safety regulated under the OHS.

Surveillance and audit of the implementation of the OHS provisions is conducted by labour inspectors authorised by the Ministry of Labour and Social Security (Article 24/1, OHS).

Neither the Ministry nor the courts have extra-territorial jurisdiction for health and safety offences regulated under OHS.

For more information on the Ministry of Labour and Social Security see box: The regulatory authorities.

Prosecution powers

Labour inspectors are authorised to carry out examinations and investigations on occupational health and safety issues in workplaces, and for this purpose, to take samples, supervise and control the health and safety departments at educational institutions at any time (Article 24/2, OHS and Article 92/1, Labour Law (No 4857) (LL)).

If it is determined that a life-threatening issue for employees exists in buildings and other sites of the workplace, in working methods or work equipment, the workplace can be ordered to cease business operations (closed down) in some or all parts under the decision of the inspector board (involving three labour inspectors) (Article 25/1, OHS).

Powers of interview

Under Article 92/2 of the LL, during the inspection, examination and research, employers, employees and other persons related with the business must give statements to the labour inspector.

Powers of search/to compel disclosure

Under Article 92/2 of the LL, employers, employees and other persons related with the business must disclose necessary documents or information and comply with the labour inspector’s requests without any delay.

Powers to obtain evidence

Any persons related with the business, must provide all required documents and evidence to the labour inspectors during the inspection, examination and research (Article 92/2, TLL).

Reports prepared by labour inspectors are deemed as valid unless otherwise proven. (Article 92/3, TLL).

Ministry of Labour and Social Security is not specifically authorised to obtain evidence abroad.

Power of arrest

For powers of arrest for a criminal offence, see Question 4.

Court orders or injunctions

There are no court orders or injunctions regulated under the OHS.

12. Which authority makes the decision to charge and on what basis is that decision made? Are there any alternative methods of disposal and what are the conditions of such disposal?

Apart from the administrative penalty under Article 14 of the Occupational Health and Safety Law (OHS), the Provincial Directorate of Labour and Employment Agency is responsible for deciding whether to charge administrative any of the penalties listed under Article 26/2 of the OHS. Moreover, decisions regarding operational sanctions are made by board of inspector. For criminal penalty under Article 25/8 of the OHS, see Question 5.

There are no alternative methods of disposal.

Conviction and sanctions

13. What are the sanctions for health and safety offences?

Three types of penalties can be imposed on persons in violation of the provisions of the Occupational Health and Safety Law (OHS):

  • Administrative penalties. Various administrative penalties are listed under Article 26 depending on the violations of the obligations imposed by the OHS. Accordingly, the amount of administrative penalties increases with the seriousness of the acts. For example, if an employer continues its operations despite the decision to cease the operation, they will be charged with an administrative penalty between TRY185,76 to TRY371,52, depending on the operations’ hazard class for 2018 (Article 26/m, OHS). On the other hand, if an employer prevents labour inspector to take samples or to conduct any measurement, investigation, examination in relation to occupational health and safety matters, the employer will be charged by an administrative penalty of TRY11,607 to TRY23,214, depending on the hazard class, for the year of 2018 (Article 26/k, OHS).
  • Operational sanctions. The following operational sanctions are regulated under the OHS:
    • in the case where the inspector board determines a life-threatening issue in the workplace, depending on the characteristics and the risks of the life-threatening issue, and the situation of the employees, the inspector board can decide for cessation of the operations (Article 25/2, OHS);
    • if an employer’s fault which causes a fatal occupational accident in a mine, is determined by a court decision, the employer will be banned by the court from participating in public tender for two years (Article 25/A, OHS).
  • Criminal penalties. Employers and vice principals who unlawfully continue to carry out ceased operations in a workplace will be punished with imprisonment of three to five years.

Safeguards

14. Are there any measures in place to safeguard the conduct of investigations? Is there a process of appeal? Is there a process of judicial review?

Labour inspectors cannot disrupt the employer’s place of work and must keep information relating to the employer confidential (for example, the employer’s trade secrets and documents at their place of work, details of what they see during the examination/investigation and so on) (Article 24/2, Occupational Health and Safety Law (OHS)).

Judicial review for decision on the cessation of operations

If a decision has been made for a company’s business operations to be ceased (closed) by the board of inspectors, the employer can appeal the decision before the competent labour court within six days following the enforcement of the decision (Article 25/4, OHS).

Additionally, the employer can notify the Ministry in writing that the circumstances that required its business operations to be ceased no longer exist, and the employer’s request will be concluded by inspecting the workplace within seven days from when the notification was made to the Ministry (Article 25/5, OHS).

Judicial review for administrative penalties

Under Article 27 of the Misdemeanor Law (ML) (No 5236), an objection can be raised before peace of criminal court within 15 days from the notification of the related administrative penalty.

Environmental offences

Regulatory provisions and authorities

15. What are the main regulatory provisions and authorities responsible for investigating environmental offences?

Offences

The main regulatory provisions regarding environmental offences are regulated under the Environmental Law (EL) and other regulations issued on the basis of the EL. For instance, the environmental audit procedures and principles are provided in the Regulation on Environmental Auditing (REA) (No 27061) of 21 November 2008.

16. What are the specific offences relating to the environment?

Defences

Generally, any contrary act to the provisions of the Environmental Law and other regulations issued on the basis of the EL constitutes an offence that is punishable by administrative penalties, criminal penalties or operational sanctions (see Question 20).

Administrative penalties can be applicable to both individuals and legal entities, while the operational sanctions can only be applicable to legal entities.

17. What defences or exemptions are available and who can qualify?

Enforcement

There are no specific defences or exemptions provided in the provisions of the Environmental Law.

18. Which authorities have the powers of prosecution, investigation and enforcement in cases of environmental offences? What are the authorities powers of prosecution, investigation and enforcement, and what are the consequences of non-compliance?

Prosecution authorities

Public prosecutors are responsible for investigating the offences against environment under the Criminal Code, while, the Ministry of Environment and Urbanization (MEU) is the main authority responsible for investigating the administrative offences regulated under the EL and other regulations issued on basis of the EL. However, if needed, the MEU can authorise institutions listed in Article 12 of the EL (that is, provincial special administrations, mayor’s office and environmental audit unit) to investigate such offences.

For more information on the Ministry of Environment and Urbanisation, see box: The regulatory authorities.

Prosecution powers

Authorised audit units can investigate whether the company’s facility and operations are in conformity with the EL and other related regulations. In general, the audits are conducted on an annual audit plan basis. However, in the event of an accident, denunciation or complaint, or if the MEU deems necessary, the audit can be carried out ad hoc (Article 22, REA).

At the end of the audit, the authorised audit unit must prepare an audit report stating the deficiencies and non-conformities in the facility and its operations, recommended penalties and the legal basis of the sanctions. Such non-conformities and deficiencies can result in administrative penalties. Apart from the administrative penalties, they can also trigger certain provisions of the Criminal Code. In such case, the environmental auditor is responsible for making a denunciation to the public prosecutor (Article 30/2, REA).

Moreover, the authorised audit units must report the time required for the correction of the contrary facility and operations to the officer authorised to issue administrative penalties. (Article 32, REA). During the audit, if it is determined that the prohibitions are not complied with or the obligations are not fulfilled, in addition to the administrative penalty, the authorised audit unit can give a period to correct the facilities or operations and fulfill the obligations (Article 31 of REA). In case of non-compliance, operational sanctions can be imposed (see Question 20).

Powers of interview

The powers of interview of authorised audit units are not specified explicitly under Article 12/3 of the EL. Concerned parties must co-operate with the authorised audit units.

Powers of search/to compel disclosure

Concerned parties must submit the following materials on request of the MEU or the authorised audit unit (Article 12/4, EL):

  • Raw material they use.
  • Fuel, products and waste they produce.
  • Production schemes.
  • Emergency plans.
  • Monitoring systems.
  • Pollution reports.
  • Other information and documents regarding the activities that may cause environmental pollution.

Powers to obtain evidence

In addition to the powers to obtain evidence stated above, the authorised audit units can also request from the concerned parties to cover the expenses of the analysis and examination in the laboratories determined by the Ministry and authorised units (Article 6/ç, REA).

The MEU does not have the power to obtain evidence abroad.

Power of arrest

See Question 4.

Court orders or injunctions

Court orders or injunctions are not applicable to environmental offences regulated under the EL.

19. Which authority makes the decision to charge and on what basis is that decision made? Are there any alternative methods of disposal and what are the conditions of such disposal?

MEU and authorised audit units can issue administrative penalties and decisions on operational sanctions under the provisions of the EL and other regulations (Article 24/1, EL). For criminal penalties, see Question 5.

There is no alternative method for disposal.

Conviction and sanctions

20. What are the penalties for environmental offences?

Under “polluter pays” principle, the polluter or the one who caused to deterioration of environment is responsible for the penalties set up to prevent, limit, or eliminate the pollution and deterioration of the environment (Article 3/g, EL).

Apart from this general principle, there are three types of penalties for the environmental offences regulated under the EL:

  • Administrative penalties (Article 20, EL). Administrative penalties vary depending on the seriousness of the violation. For example, in 2018 an administrative penalty of TRY4.8million applies for transporting hazardous waste without notifying the relevant authorities (Article 20/t, EL). Polluting public property attracts an administrative penalty of TRY232 in 2018 (Article 20/s, EL). To prevent an individual from future misconduct, there is a deterrent provision under which penalties for a repeat breach of the EL within three years are doubled and tripled (if misconduct is repeated twice or more).
  • Operational sanctions. Persons who violate the provisions of the EL or the regulations issued on the basis of the EL are given a period of up to one year to correct the breach (Article 15/1, EL). In case of non-compliance within the given period, the operation may be terminated partially or wholly, on a temporary or indefinite basis.
  • Criminal penalties. Persons who give false and misleading information, and therefore breach the obligation to file notification and to provide information to the authorised audit units under Article 12 of the EL, will be punished with imprisonment from six months to one year (Article 26/1, EL). Additionally, criminal penalties may arise if the environmental auditor informs the public prosecutor of non-compliance which triggers the provisions of the Criminal Code.

Safeguards

21. Are there any measures in place to safeguard the conduct of investigations? Is there a process of appeal? Is there a process of judicial review?

To safeguard the conduct of the audit, environmental auditors must keep the trade secrets learned during the audit confidential (Article 34, REA).

Under Article 25/2 of the EL, a lawsuit may be filed against the administrative penalties before the administrative courts within 30 days from the date of notification of the administrative penalty decision. However, filing a lawsuit does not stop the collection of the penalty.

First published by Thomson Reuters, in 18.05.2018