New Turkish counter terrorism law restricts civil society and philanthropic space
by Hanna Surmatz
A new Turkish counter terrorism law - "Law on Preventing Financing of Proliferation of Weapons of Mass Destruction”, which was approved in a speedy process and entered into force on 31 December 2020 - introduces restrictions on civil society and philanthropic space. It was submitted to the Presidency of Turkish Grand National Assembly on 16 December 2020 and approved by the Parliament on 27 December 2020.
The main reasoning behind the law, outlined in the rationale of the draft version, is "to catch up with international standards in the fight against the financing of terrorism and laundering offenses in light of the 2019 report of the FATF and the UN Security Council (UNSC) resolutions”.
The initial analysis, however, suggests that only six out of 43 articles are directly related to combatting financing of terrorism; of the other articles, 11 amend two important civil society laws, four articles amend the law on collection of aid, and seven amend the association law in Turkey.
Some of the legal changes contribute to an unfriendly climate for civil society, since they unduly restrict the operating space for civil society organisations and open the door for arbitrary and discretionary decisions by public authorities. As Philanthropy Advocacy, a joint Dafne & EFC Initiative, we have recently collected information on national foundation laws. From a comparative perspective, we have assessed that our sector is facing a more challenging environment in parts of Europe with restrictions being introduced in the name of countering money laundering and terrorism financing, which are sometimes disproportionate to the actual assessment of risks related to the non-profit sector in a given country. In addition, they are sometimes not targeted to a specific risk scenario, but instead address the sector as a whole. We can conclude that efforts are needed to ensure that counter terrorism and money laundering measures are indeed risk-based, targeted and proportionate, while taking into account fundamental rights and not unduly restricting legitimate charitable activities.
Some of the changes introduced in Turkey do not appear to be risk-based, targeted and proportionate, as required by international FATF standards. Experts including the Council of Europe Human Rights Commissioner have already raised concerns about potential conflicts with fundamental rights/freedom of association and rule of law principles.
State supervision powers are increased, as are prison sentences and fines for certain cases of misconduct, though these cases are not always clearly defined. Under the new law, online aid campaigns require prior permission and new by-laws will describe more detailed procedures around donations collected from abroad or sent abroad. Prior authority notification is required for aid to be remitted from abroad. Audits on civil society organisations must be carried out by public servants annually, and no later than every three years. This may serve as a pretext for public servants to run audits in associations, while not possessing adequate expertise for this. Those convicted of crimes within the scope of the Law on the Prevention of Financing of Terrorism No. 6415, or of crimes of drug trafficking and money laundering, are prohibited from sitting in the organs of associations other than the general assembly, even if the sentences of those persons were pardoned. Failure to give or show information, documents and records can lead to a one-year prison sentence.
The new rules will also have a chilling impact on cross-border philanthropy, since a notification is required for aid sent abroad and aid received from abroad. The provisions of this new law are applicable to many philanthropic actors: branches of associations; governing organisations of associations and foundations; and branches of associations and foundations which have headquarters abroad and their permission to operate and develop cooperation in Turkey.
Civil Society Organisations in Turkey have already been subject to a restrictive Law on Aid Collection which requires prior permission and fulfilling numerous conditions for fundraising activities. The new Law brings an additional restriction, i.e. prior permission requirement for online fundraising which was not explicitly stated before. Given the current COVID-19 crisis globally and other societal challenges, there is need for legal frameworks which encourage and facilitate philanthropic activities in line with the international standards, but currently the opposite is happening.
ANNEX: Outline of key relevant new rules:
Articles 7 to 10 of the new law amend the Law on Collection of Aid, No: 2860:
- Article 7 of the new law establishes that online aid campaigns are not allowed without permission. When an unauthorised online aid campaign is detected, the relevant governorship and the Ministry of Interior can request removal of the content within 24 hours or to apply to the magistrate of peace for a blocking order if the campaign provider cannot be reached, or notification cannot be delivered for technical reasons.
- With Article 10, an administrative fine on violation of the Law on Collection of Aid may be imposed from 5,000 to 100,000 TRY (€550-€11,000). In case of an unauthorised collection of aid on the internet, the prescribed lower and upper limits of fines are doubled. Those who aid and abet in any unauthorised aid collection will be also sanctioned with an administrative fine of 5,000 TRY if they do not end this activity despite a notice.
- Article 8 of the new law prescribes that procedures and principles regarding aids provided domestically and abroad shall be regulated with a by-law.
- With Article 9, those assigned to conduct the audit for the collection of aid activities are authorized to request relevant information and documents from natural persons and legal entities, including banks as well as public institutions and organisations.
Articles 11 to 17 of the new law amend the Law on Associations, No: 5253.
- With Article 11, associations and foundations, which have their headquarters abroad, become subject to the provisions of Law No. 5253 on Associations.
- Article 12 establishes that those convicted of crimes within the scope of the Law on the Prevention of Financing of Terrorism No. 6415 or of crimes of drug trafficking and money laundering are prohibited from sitting in the organs of associations other than the general assembly, even if the sentences of those persons were pardoned. In the event that a prosecution is initiated against the board members or staff of associations as regards the aforementioned crimes, Article 15 allows the Minister of Interior to suspend the individuals or the relevant organs as a temporary measure. According to this amendment, the Minister of Interior can immediately apply to the civil courts of first instance to request temporary suspension of activities of the association when the aforementioned “temporary measure” deemed as inefficient. Please note: The requirement for a temporary suspension was an “investigation” in the Draft Law, which was revamped to “prosecution” after debate during the legislative process). The amendment also enables an appointment of a trustee to the associations following the initiation of the specified measures.
- Article 13 extends the scope of the audit for associations and establishes that audits must be carried out by public servants annually, no later than every three years, according to the risk assessments to be performed.
- Article 14 establishes that the relevant administrative authority must be notified prior to aids to be remitted abroad from Turkey.
- Article 16 introduces or increases penalties for the following cases (see Article 32 (k):
- for cases of failure to give or show all kinds of information, documents and records and allow a visit to the administrative places, establishments and their annexes upon the request of the supervisory board members of the association (internal audit) or relevant government officials (external audit) imprisonment has been increased from three months to one year or a judicial fine.
- In the case that mandatory books and documents that are kept by the associations are unreadable or lost for any reasonthis should be notified to the competent court of a place where a headquarter of the association is operating. Those who do not notify the court within 15 days or submit the books during the audit process will be sanctioned with a prison sentence of three months to one year or a judicial fine.
- Breaching the obligation to notify about aid sent abroad and aid received from abroad and the obligation to transfer aid through a bank shall be subjected to an administrative fine from 5,000 TRY to 100,000 TRY (€550-€11,000).
- An administrative fine of up to 10% of the amount subject to the transaction will be imposed to the association executives who fail to make any expenditure and payments that is more than 7,000 TRY (€775) via banks and other financial institutions.
- In parallel with the amended Art. 3 of the Law (as regards an indefinite prohibition of persons convicted of certain crimes from taking responsibility in organs other than the general assembly of associations) by means of aforementioned Art. 12, an administrative fine of 1,500 TRY (€166) is imposed on those who work in the organs of the association and the executives of the association who do not fulfil their duties prescribed in Art. 3 within seven days despite written warning. In the event that these persons are not terminated from their duties in organs within 30 days despite the second written warning made by the local administrative authority, a procedural action will be held in accordance with Article 89 of the Turkish Civil Code which leads to a dissolution of the association in question.
- According to the Article 17, the provisions of this new law are applicable to branches of associations, governing organisations of associations and foundations, branches of associations and foundations which have headquarters abroad and their permission to operate and develop cooperation in Turkey.