Turkey: Crypto Law- Suspicious Transaction Reporting Guide (Crypto Asset Service Providers)

1. IN GENERAL

The Financial Crimes Investigation Board of The Ministry of Treasury and Finance ("MASAK") published The Suspicious Transaction Reporting Guide ("Guide")  on its official website on 18.04.2022. The Guide was published after crypto asset service providers ("CASP") ¹were accepted as liable with the relevant legal regulation²and aims to explain the rules to which the obligor is subject in reporting a suspicious transaction ³ within the body. Apart from the suspicious transaction reporting obligation, crypto-asset service providers are also subject to other commitments by the relevant legal regulations.

Still, the Guidelines do not include explanations regarding these obligations:⁴

1. Obligation to Know the Customer
2. Obligation to Provide Information and Documentation
3. Retention and Presentation Obligation
4. Obligation to Provide Continuous Information
5. Suspicious Transaction Reporting Obligation (the subject of this Guide)

The Guide explains the notification and shows the form, matter and content. The Guide also describes suspicious transactions and customers who make the suspicious transactions by examples. The Obliged Parties shall report suspicious transactions to MASAK within ten working days from suspicion regarding the transaction. In cases where a delay is considered harmful, The Parties shall oblige to report to MASAK immediately. Suppose new information and findings are obtained later on regarding the notified transaction. In that case, CASPs shall file the Suspicious Transaction Report form ("STR") again, and it is told without delay, stating that it is in addition to the previous notification.Suspicious transaction reporting to MASAK in CASPs is carried out by the natural person obligor herself/himself and by the legal representatives of the legal person obligee.

2. NOTIFICATION METHODS

2.1. Physical Shipment

When multiple suspicious transactions are evaluated together, a single STR⁵ form is issued for suspicious transactions. The STR form can be hand-delivered to MASAK, sent by registered mail or fax or for those authorized by MASAK, electronically. The obligor must take a copy of the suspicious transaction notifications to be sent on paper and physically preserved. Said suspicious transaction reporting forms and their annexes are within the scope of the "Preservation and Submission" obligation in Article 8 of the Law. They must be kept for 8 years and submitted to MASAK and/or the inspectors assigned with the inspection. Otherwise, MASAK may question a judicial penalty within Article 14 of the Law mentioned above.

2.2. Electronic Submission

Those who want to report suspicious transactions electronically or Obligations deemed appropriate by MASAK can report suspicious transactions electronically.

Obliged parties who can issue an STR form electronically must make suspicious transaction reports electronically via EMIS.ONLINE (https://online.masak.gov.tr) as of the date of authorization. The said obliged parties cannot notify in paper form after this date—information on the use of the EMIS.ONLINE system is contained in the "EMIS.ONLINE User's Guide".

If suspicious transaction notifications are sent electronically, an electronic image (PDF) of the form must be taken by the obligor before sending the form to MASAK. It must be kept in an electronic environment for 8 years and submitted to MASAK and the audit staff assigned with the audit, again, a judicial fine is in question otherwise.

3. CONTENT

1. Information of the obligor who prepared the form,
2. Choice of whether the suspicious transaction notification is for a new transaction or an addition to an existing transaction [Suspicious transaction may cover more than one transaction],
3. Selection of whether to request a postponement:

4. Selection of urgency of notification [normal / urgent / very urgent],
5. Notification category [It is requested to select one of these notification categories (1) money laundering / (2) terrorism financing. If there is not enough doubt about the financing of terrorism, only money laundering should be chosen.],
6. Information about the real or legal person or entities that do not have a legal personality

[The Obliged Parties shall separately include both the person performing the transaction and the person on whose behalf the transaction is executed. In addition, it is not sufficient to give information about only the persons who carried out the suspicious transaction or on whose behalf the transaction was carried out. In this field, other natural persons who are indirectly related to the suspicious act or persons who committed the suspicious act should also be included.],

1. Information about the nature of the suspicious transaction [This field contains the titles of the requested information about the transaction. Required information should be entered in the relevant fields. Likewise, information such as whether the transaction is at the stage of attempt, its date, the entity that is the subject of the transaction, the transaction channel, and the transfer code of the transaction (Transaction ID) must be entered. Transactions are reported regardless of any monetary limit.],
2. Account information [If the transactions subject to a suspicious transaction notification were carried out through one or more bank accounts, information about these bank accounts will be given in this field. In case there is more than one account subject to suspicious transaction, this section will be repeated for each account.],
3. Crime Suspicion Category [The form includes types of suspicion categories. Explanations on these categories are also included in the guide],
4. Explanations [The CASP's shall include all the findings obtained as a result of the research and investigations carried out by the liable party regarding the suspicious transaction in general],
5. Types of Suspicion [Types that can be encountered in terms of both the customer and the transaction for a transaction to be considered suspicious, are listed by way of example in the Guide. The ones listed here are listed as an example to the obligor, and even if a suspicious transaction does not comply with the listed typologies, it can still be considered a suspicious transaction if there are situations similar to those here.]

Suspicion types listed below, unusual behaviours that can be observed in customers or their transactions, or discrepancies that can be detected are listed with samples. The contradictions, which are related to each other in terms of subject integrity, are grouped under broad headings. Finally, outlier transactions that may occur within the structure of CASP's are also counted by way of example. All of these examples are included in Guide.

4. VIOLATION

As a result of the liability inspections, according to the first paragraph of Article 13 of the Law; If it is determined that any of its obligations under the Law are violated, an administrative fine is imposed by MASAK in the amounts specified in the Law and per transaction.

The administrative fine to be applied for each liability cannot exceed a certain amount as of the year in which the breach was committed. If there is a breach of obligation of the same kind in the following year, these limits are applied twice.

If the obligee violates the suspicious transaction reporting obligation, he may be fined up to 4,000,000 TL, with a minimum of 50,000 TL for each violation (action).

Footnotes

1 What the crypto asset service provider is not included in the relevant legal regulations. However, in another Guide prepared by MASAK for these institutions, crypto-assets were first defined to define crypto-asset service providers, and then it was explained as an institution that mediated the buying and selling of these assets through electronic trading platforms.

2 With the Regulation Amending the Regulation on Measures Regarding the Prevention of Laundering Proceeds of Crime and the Financing of Terrorism, which came into force after being published in the Official Gazette dated 01.05.2021, crypto-asset service providers were added to the list of those deemed liable for the implementation of the Law No. 5549 on the Prevention of Laundering Proceeds of Crime.

3 While the definition of the suspicious transaction was included in the General Communiqué on the Notification of Suspicious Transactions for the Financing of Terrorism, it was abolished in 2008. Because, as can be seen in the guide, a definite and limiting definition of a suspicious transaction has not been adopted, and it has been explained how the transaction can manifest through the typologies counted by way of example.

4 For a guide covering all other obligations of crypto asset service providers before MASAK, see. https://ms.hmb.gov.tr/uploads/sites/12/2021/05/Kripto-Varlik-Hizmet-Saglayicilar-Rehberi.pdf

5 All forms related to the subject are also available at https://masak.hmb.gov.tr/sektorel-sib-rehberleri

6 It can be accepted as a transaction that needs to be postponed if there is a document or serious indication supporting the suspicion beyond mere suspicion (The transaction is of an unusual nature, the fact that the person or persons performing the transaction are or may be related to the crime, there is a dangerous situation that will prevent or make it difficult to confiscate the proceeds of crime) that the property subject to the transaction attempted or currently in progress made by or through the obligors is related to the crime of laundering or financing of terrorism.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.