1. THE DECISION TO CONDUCT AN INTERNAL INVESTIGATION
1.1 What statutory or regulatory obligations should an entity consider when deciding whether to conduct an internal investigation in your jurisdiction? Are there any consequences for failing to comply with these statutory or regulatory regulations? Are there any regulatory or legal benefits for conducting an investigation?
This subject is not regulated explicitly under Turkish law. Absent any dedicated regulation, companies should consider the attorney-client privilege (no legal privilege applies to in-house counsel), business secrecy, labour laws, influencing potential witnesses, privacy and data protection. Failing to address these issues will expose the entity to heightened risks in the case of a raid conducted by the enforcement authorities and potential criminal liability.
1.2 How should an entity assess the credibility of a whistleblower’s complaint and determine whether an internal investigation is necessary? Are there any legal implications for dealing with whistleblowers?
This would be determined by the facts in each case. Under Turkish law, there is no provision regarding the statutory protection of whistleblowers or the requirement for companies to have whistleblower procedures in place. There are no direct legal implications for dealing with whistleblowers. However, ignoring or mishandling a complaint may lead to a complaint being made to public authorities, exposing the entity to certain risks. Entities must ensure the whistleblowers’ anonymity, as well as the anonymity of the persons identified by the whistleblower in the alert and the confidentiality of the information disclosed. Furthermore, entities must never act to impede the disclosure of an alert, and shall prevent retaliation against the whistleblower.
1.3 How does outside counsel determine who “the client” is for the purposes of conducting an internal investigation and reporting findings (e.g. the Legal Department, the Chief Compliance Officer, the Board of Directors, the Audit Committee, a special committee, etc.)? What steps must outside counsel take to ensure that the reporting relationship is free of any internal conflicts? When is it appropriate to exclude an in-house attorney, senior executive, or major shareholder who might have an interest in influencing the direction of the investigation?
The highest management of the company shall be regarded as “the client” in a legal entity. It is quite likely that conflicts of interest may arise between the client, as the department that the outside counsel reports to, and the department that is the subject of the investigation in due course of the internal investigations. For this very reason, it is important to exclude any persons who have actual or potential conflict of interest when deciding which persons are authorised to give instructions and receive advice from outside counsel.
Best practice is to put together an independent task force of relevant functions, limited in size to preserve confidentiality and which includes outside counsel to anticipate communications with relevant authorities and preserve privilege.
2. SELF-DISCLOSURE TO ENFORCEMENT AUTHORITIES
2.1 When considering whether to impose civil or criminal penalties, do law enforcement authorities in your jurisdiction consider an entity’s willingness to voluntarily disclose the results of a properly conducted internal investigation? What factors do they consider?
Pursuant to Article 20 of the Turkish Criminal Code, no punitive sanctions may be imposed upon legal entities. Under Turkish law, legal entities cannot be the accused or the defendant in a criminal investigation/proceeding and they cannot be prosecuted. Any legal person, according to Turkish law, can only bear the civil and administrative responsibility. In addition to this, self-disclosure is not a concept stipulated under the national legislation system and therefore the consequences of a voluntarily disclosure shall be determined by the judge during the proceedings.
2.2 When, during an internal investigation, should a disclosure be made to enforcement authorities? What are the steps that should be followed for making a disclosure?
There is no legal regulation or guideline pertaining to self-disclosure under Turkish law. Therefore, it is recommended that the companies fully understand the misconduct in question and determine the extent of it. The legal and commercial risks shall be carefully assessed before any disclosure to the enforcement authorities.
2.3 How, and in what format, should the findings of an internal investigation be reported? Must the findings of an internal investigation be reported in writing? What risks, if any, arise from providing reports in writing?
There is no obligation to report the findings from an internal investigation to government authorities, since the matter of internal investigation of misconduct is not regulated by Turkish law. Decisions regarding the reports of such findings could be made by the management of the entity; however, this is rarely practised in Turkey since it can lead to further investigations by the public authorities.
3. COOPERATION WITH LAW ENFORCEMENT AUTHORITIES
3.1 If an entity is aware that it is the subject or target of a government investigation, is it required to liaise with local authorities before starting an internal investigation? Should it liaise with local authorities even if it is not required to do so?
There is no legal requirement to liaise with local authorities before starting an internal investigation.
3.2 If regulatory or law enforcement authorities are investigating an entity’s conduct, does the entity have the ability to help define or limit the scope of a government investigation? If so, how is it best achieved?
The entities can only try to limit the scope of the investigation in case the enforcement authorities’ actions fall outside the scope of procedural laws and norms. In such cases the entities may raise objections against actions of the authorities thereby limiting the scope of government investigation.
3.3 Do law enforcement authorities in your jurisdiction tend to coordinate with authorities in other jurisdictions? What strategies can entities adopt if they face investigations in multiple jurisdictions?
The number of cross-border internal investigations is on the rise, as entities are becoming more and more global. Being a party to many agreements and treaties, as well as its membership in different organisations, Turkey and its enforcement authorities can cooperate with authorities of other jurisdictions across a wide range of matters. If an investigation is commenced by the Turkish authorities and can affect interests of a state which is also a party of such treaty, the Turkish authorities can provide assistance and exchange information. Therefore, entities shall build multi-jurisdictional defence strategies. These strategies may differ for each company structure and mostly depend on the matter and the characteristics of the investigation.
4. THE INVESTIGATION PROCESS
4.1 What steps should typically be included in an investigation plan?
An investigation plan should include the following steps: firstly, the company and its consultants should obtain information regarding the investigation; then decide on the instant measures and protective steps that shall be taken; determinate, preserve and collect relevant information (data collection, evidence preservation, document review) and analyse them; screen out internal protocols relating to investigations; ensure the coordination of external service providers; communicate with law enforcement agencies; refer to witness interviews (i.e. employees of the company who know relevant facts and/or who may have been involved) and take their statements; and, finally, report all evidence and advise for remediation.
4.2 When should companies elicit the assistance of outside counsel or outside resources such as forensic consultants? If outside counsel is used, what criteria or credentials should one seek in retaining outside counsel?
It depends on the facts of each case. Assistance of outside counsel is crucial where the company does not have or has limited in-house lawyers. This has vital importance in respect of the local regulations, applicable law, local culture and also the satisfaction of authorities’ expectations.
5. CONFIDENTIALITY AND ATTORNEY-CLIENT PRIVILEGES
5.1 Does your jurisdiction recognise the attorney-client, attorney work product, or any other legal privileges in the context of internal investigations? What best practices should be followed to preserve these privileges?
Turkish law protects the privacy between the attorney and the client. According to Article 58 of the Legal Profession Code, offices of attorneys can only be searched following a court decision and in the presence of a Public Prosecutor and a lawyer who is a member of the Bar. This regulation specifically aims to protect the confidential information of the client that is held by the attorney.
5.2 Do any privileges or rules of confidentiality apply to interactions between the client and third parties engaged by outside counsel during the investigation (e.g. an accounting firm engaged to perform transaction testing or a document collection vendor)?
Third parties engaged by outside counsel are protected by the counsel privilege, and members of a regulated profession with professional secrecy can rely on their own privilege.
5.3 Do legal privileges apply equally whether in-house counsel or outside counsel direct the internal investigation?
There are no regulations on that matter under the Turkish law.
5.4 How can entities protect privileged documents during an internal investigation conducted in your jurisdiction?
As explained in question 5.1, there are regulations that protect attorney-client privacy. Therefore, marking documents as “attorney-client privileged” or “privileged and confidential attorney work product” is essential in protecting such documents.
5.5 Do enforcement agencies in your jurisdictions keep the results of an internal investigation confidential if such results were voluntarily provided by the entity?
There are no regulations on whether the results of an internal investigation should be kept or not if they have been voluntarily provided. However, the results would become a part of the investigation file.
6. DATA COLLECTION AND DATA PRIVACY ISSUES
6.1 What data protection laws or regulations apply to internal investigations in your jurisdiction?
Protection of Personal Data is the law that applies to internal investigations in the Turkish jurisdiction. Also, according to Article 20 of the Turkish Constitution, “everyone has the right to ask for protection of their personal data”. Accordingly, on 7 April 2016, the Data Protection Code came into force and brought many obligations on the parties receiving and managing personal data. The Code was based on the EU Directive 95/46/EC with minor changes. In that regard, any personal data obtained during a corporate investigation conducted by the company shall be treated and managed pursuant to the abovementioned Code.
6.2 Is it a common practice or a legal requirement in your jurisdiction to prepare and issue a document preservation notice to individuals who may have documents related to the issues under investigation? Who should receive such a notice? What types of documents or data should be preserved? How should the investigation be described? How should compliance with the preservation notice be recorded?
There is no legal requirement; however, it is common that companies issue a documentation preservation notice to individuals who may have documents related to the issues under investigation. Authorities request all relevant evidence relating to an investigation, such as hard copy and electronic documents. The description of an investigation differs from case to case, but it should be explained evidently.
6.3 What factors must an entity consider when documents are located in multiple jurisdictions (e.g. bank secrecy laws, data privacy, procedural requirements, etc.)?
Certain factors must be considered specifically. It is important where the documents are located and local legal assistance should be sought.
In Turkey, there are no statutes related to preventing delivery of information. It should be noted that the reciprocity principle is important.
6.4 What types of documents are generally deemed important to collect for an internal investigation by your jurisdiction’s enforcement agencies?
All types of documents that may contain relevant information can be requested. This includes emails, instant messages, audit reports, time records, personal records and any other data relevant to the allegations, provided that collection of such data complies with the authority granted to the enforcement agencies under the law.
6.5 What resources are typically used to collect documents during an internal investigation, and which resources are considered the most efficient?
The most important resource is company servers. Expertise should be sought from computer forensics. Other than company servers, resources vary from case to case.
6.6 When reviewing documents, do judicial or enforcement authorities in your jurisdiction permit the use of predictive coding techniques? What are best practices for reviewing a voluminous document collection in internal investigations?
There is no restriction on the use of predictive coding techniques in Turkish legislation. Judicial authorities do not use predictive coding techniques, but enforcement authorities may use them. Keyword searches could be used to analyse data. Furthermore, special computer software may be used for quick and better analysis.
7. WITNESS INTERVIEWS
7.1 What local laws or regulations apply to interviews of employees, former employees, or third parties? What authorities, if any, do entities need to consult before initiating witness interviews?
There are no regulations that apply to interviews of employees, former employees or third parties.
7.2 Are employees required to cooperate with their employer’s internal investigation? When and under what circumstances may they decline to participate in a witness interview?
There is no specific obligation for an employee to participate in their employer’s internal investigation; however, Article 396 of the Turkish Code of Obligations provides that employees shall act faithfully in protecting the employer’s rightful interest. In practice, this provision shall be used to make sure all the employees attend the required investigation.
7.3 Is an entity required to provide legal representation to witnesses prior to interviews? If so, under what circumstances must an entity provide legal representation for witnesses?
No, there is no such a requirement to provide legal representation prior to interviews. No one can be forced to act as a witness on any case whatsoever. However, if preferred, witnesses could attend the trial with a legal counsel. This is preferable, particularly for minors.
7.4 What are best practices for conducting witness interviews in your jurisdiction?
There are no regulations covering witness interviews. Yet, as it is referred to in section 6, this shall be done in accordance with the laws regarding data protection.
7.5 What cultural factors should interviewers be aware of when conducting interviews in your jurisdiction?
There are some unwritten rules which need to be followed by any country when it comes to participating in the proceedings. Assistance should be sought from a native Turkish speaker when conducting such interviews.
7.6 When interviewing a whistleblower, how can an entity protect the interests of the company while upholding the rights of the whistleblower?
The whistleblower shall agree that the company can share the information if and when requested by the judicial authorities.
7.7 Can employees in your jurisdiction request to review or revise statements they have made or are the statements closed?
Despite no legal requirement, it is best practice if employees are given the possibility to revise and withdraw statements that they have made. In such cases, employees shall also explain in writing the reasons of such revisions.
7.8 Does your jurisdiction require that enforcement authorities or a witness’ legal representative be present during witness interviews for internal investigations?
No, there are no special requirements concerning witness interviews for internal investigations.
8. INVESTIGATION REPORT
8.1 How should the investigation report be structured and what topics should it address?
Written investigation reports are common practice in Turkey unless there is a conflict with the higher interest for confidentiality or anonymity.
Originally published by The International Comparative Legal Guide to Corporate Investigations 2020.
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.