The Financial Crimes Investigation Board (Masak) is an organization affiliated with the Ministry of Treasury and Finance, which operates to prevent the laundering proceeds of crime and financing of terrorism. In this context, it has undertaken various tasks in order to reveal and prevent risks to economic security. The Board has powers in different functions such as collecting data, developing strategies, conducting investigations, and producing intelligence on money laundering and financing of terrorism. The Board also works in cooperation with the forensic units. In case of serious suspicions about money laundering or financing of terrorism, it transfers the matter to the relevant Public Prosecution Office and ensures that the investigation and necessary actions are taken.
When Masak detects a suspicious situation or a notice is given to it, it can block the bank accounts of individuals. However, from time to time, it is witnessed that the blocking process constitutes a violation of the law and can eventually lead to grievances of individuals. In this case, the question of how to remove the unjustly placed block and how to perform the proof activity comes to mind.
In this bulletin, we have focused on the reasons for the blocking of bank accounts by Masak and the unblocking of the bank account blocked, which is a frequently asked question by our clients and clients in recent months.
İçindekiler
1. Why Does Masak Blocks Bank Accounts?
According to the article 19/A of the Law No. 5549 on the Prevention of Laundering of Crime Revenues;
“In case of suspicion that the transactions attempted to be carried out or currently ongoing with or through the obliged parties, the property subject to the transaction is related to the crime of money laundering or financing of terrorism, the Minister is authorized by the Presidency to suspend for seven working days or not to allow these transactions to take place for the same period in order to confirm the suspicion, analyze the transaction or, when deemed necessary, submit the analysis results to the competent authorities.
As it can be understood from the text of the article, Masak has the authority to intervene and suspend the execution of the suspicious transaction, if it detects transactions that raise suspicions of laundering the proceeds of crime or financing terrorism, or if a notice is given to it. The suspension is limited to 7 working days.
One of the examples frequently encountered in practice is that the account is blocked due to placing bets, depositing money or withdrawing money from illegal betting sites. In case of suspicious money movements in bank accounts, for example, small but frequent foreign money transfers are made or received, a blocking process can also be applied. There is sample guidance on which transactions qualify as suspicious. The guide includes the types of transactions that are considered as suspicious transactions in banking activities according to customer profile, banking transactions and transaction type. Here is a few examples of the transactions described as suspicious transactions in the aforementioned guide; no reasonable proportion between the customers’ job/profession, financial situation and transactions, the division of financial transactions that should be done collectively in customary practices without a logical reason in order to avoid detection and notification, and the absence of a customary and reasonable legal or economic justification or logic for the transaction made or intended to be made, within the scope of the activities of the persons or organizations operating in commercial activities, the transactions that are required to be repeated as an individual transaction or, on the contrary, the continuous repetition of the transactions that are not performed frequently in the ordinary commercial life are considered as suspicious transactions. However, in an environment where technology is developing rapidly and payment and transfer tools and methods are different, it is not possible to make a complete list of suspicious transactions.
In addition, the general directorates of the bank can notify Masak by blocking foreign money transfers by the foreign transactions unit. In this case, it is not possible to use the money in the account due to the block on the account.
Again, according to Article 17 of the same Law;
“In cases where there is a strong suspicion that the crime of money laundering and financing of terrorism has been committed, the values of assets can be confiscated according to the procedure in Article 128 of the Criminal Procedure Law No. 5271. The seizure, which is made without a judge’s decision, is submitted to the approval of the authorized judge within twenty-four hours. The judge decides whether to approve or not within twenty-four hours at the latest.”
If there is a strong suspicion that the transaction, which is considered suspicious by Masak, constitutes a crime, Masak may notify the prosecutor’s office in order to initiate a criminal investigation. After the incident is reported to the judicial authorities, it may be decided to implement actions such as seizure and confiscation within the scope of the investigation initiated by the prosecutor’s office. Although the reason for the blocking is to prevent money laundering and terrorist financing, it is sometimes witnessed that the transactions are blocked by banks incorrectly or out of purpose, and the blocking is not lifted even though it expires. This situation negatively affects people’s money flows and commercial activities by disrupting them, and in some cases, such as when their salary account is blocked, it causes great grievances for account holders.
2. Can Cryptocurrency Accounts Be Blocked by Masak?
It has become possible to block not only bank accounts but also crypto money accounts. “Crypto-asset service providers” have also been added to those deemed to be “obligated” in the implementation of the Regulation on the Amendment of the Regulation on the Prevention of Laundering of Crime Revenues and the Financing of Terrorism, published by the Presidency in the Official Gazette numbered 31471 dated May 1, 2021, and the Law on the Prevention of Laundering of Crime Revenues numbered 5549. One of the consequences of being obligated is to be under the obligation to report suspicious transactions to Masak. It is known that cryptocurrencies are used in many illegal activities such as money laundering, terrorist financing, manufacturing and trading of drugs and stimulants, tax evasion all over the world. The anonymity provided by cryptocurrencies creates a suitable basis for such illegal activities, since it is extremely convenient to hide the identity of individuals and it is very difficult to track money transfers. With the new regulations, if crypto assets are subject to illegal transactions, these accounts can also be blocked.
3. How to Unblock the Account Blocked by Masak?
In terms of how to remove the account blocking applied by Masak, first of all, the reason for the blocking should be investigated and determined. Masak is not a judicial institution, but has an administrative identity. It operates as the main service unit under the Ministry of Treasury and Finance within the administrative organization. For this reason, the actions taken and the decisions taken by the board are in the nature of administrative action. The annulment of the administrative actions on the grounds that they are unlawful is possible thanks to the annulment actions to be filed in the administrative courts. However, filing a lawsuit for the cancellation of the blocking of the bank account by Masak does not mean that the account will be unblocked. Therefore, a suspension of execution must be requested from the court at the same time. The legal period of the blocking process applied by MASAK is 7 working days. If the account is not unblocked even after this period has passed, it is possible to file a lawsuit by requesting a suspension of execution in the same way.
In the lawsuit filed for the unblocking, it is necessary to prove the reason why the blocking on the account is unlawful. For example, if there is no suspicious transaction, but a block is made as a result of an error or mistake, this transaction will be unlawful in terms of reason and subject matter. If the blocking process is applied for personal and political purposes other than to eliminate economic security risks and commit crimes, this will also make the blocking unlawful in terms of the purpose element. If the illegality of the blocking transaction is proven in the case, the transaction will be canceled by the court.
If the blocking has been made by a judge’s decision or directly by a court decision within the scope of the crime investigation, not by Masak, then a defense activity must be carried out within the scope of the crime investigation and prosecution. Objection against the decisions made by the peace judgeships during the investigation is open. Upon the notification made by Masak, in case the money in the bank accounts is confiscated or attached during the prosecution investigation, it is possible to appeal to the criminal courts of peace in order to abolish these transactions, which are implemented by the decision of the criminal judge of peace. If the aforementioned measures are decided not by the investigation but by the competent court in charge of the prosecution phase after the prosecution’s indictment is accepted, an appeal can be made against these decisions only together with the court’s decision on the merits.
In practice, it is also possible to encounter the situation of blocking by banks, not by Masak or judicial units. In account blocking actions, which are not directly applied by Masak, but by banks, it is necessary to first apply to the bank to find out the reason for the blocking. Because bank accounts can be blocked for various reasons. For example, the bank account may be seized due to legal enforcement proceedings initiated against the account holder, it may be blocked due to non-payment of tax debt or credit debt. Again, due to an abnormality noticed by the bank in money transfers, the account may be blocked. For this reason, it is necessary to learn the first cause first and then take action. In cases where the bank unlawfully and arbitrarily blocks the bank account or refrains from removing the block even though it has expired, filing civil and criminal cases to the relevant bank’s general directorate and filing a complaint with the Banking Regulation and Supervision Agency are among the legal remedies that can be applied. In compensation cases, various damages such as damages incurred due to unlawful blocking, damages caused by not being able to use the compensation money and not being able to operate, deprived profit, material damages, missed opportunities, and loss of reputation may be requested. In the criminal case to be filed, a criminal complaint may be filed against the authorities for the crime of banking embezzlement by using it.
Conclusion
Blocks placed on bank accounts can have many different reasons. In this article, we have discussed the bank account blocks that were put by Masak for the purpose of preventing terrorist financing and money laundering, alleging suspicious transactions detected. In some cases, individuals may incur losses due to account blocking transactions, which can also be applied unlawfully. It is important to manage the process by a lawyer who is an expert in her/his field, due to the complex procedures involved in removing the account block and eliminating the losses incurred. You can contact our team for more detailed information and consultancy on the subject.
Best Regards.
Solmaz Law and Consultancy Team.
References
Turkish Maliye Bakanlığı Mali Suçları Araştırma Kurulu ve Türkiye Bankalar Birliği, “Karaparanın Aklanması Suçu İle Mücadele ve Bankaların Yükümlülükleri”, Aralık 2003, yayın no:235.
Kripto Varlık Hizmet Sağlayıcılar Rehberi, masak.hmb.gov.tr.
Law No. 5549 on the Prevention of Laundering of Crime Revenues
the Regulation on the Amendment of the Regulation on the Prevention of Laundering of Crime Revenues and the Financing of Terrorism
The Turkish Criminal Code.
The Criminal Procedure Code.
The Banking Law.
Leave a Reply
You must be logged in to post a comment.