Lawyers’ MASAK Notification Obligation Cancelled
In the annulment case dated 18.1.2024 and numbered 2021/28, which was filed with the Constitutional Court (‘Constitutional Court’) by the deputies of the Turkish Grand National Assembly (‘TBMM’), there is a provision that closely concerns lawyers. With the annulled provision, lawyers are included in the definition of ‘obliged’ and are required to notify the Financial Crimes Investigation Board (‘MASAK’).
The annulled part of the relevant provision is regulated in Article 2/1-d of the Law No. 5549 on Prevention of Laundering Proceeds of Crime (‘Law’) as follows: ‘…limited to the realisation of financial transactions related to the purchase and sale of immovable property, the establishment and removal of limited real rights, the establishment and merger of companies, foundations and associations, and their management, transfer and liquidation, and the management of banks, securities and all kinds of accounts and the assets in these accounts…’.
With this provision, lawyers are obliged to notify MASAK in cases of suspicious transactions within the scope of the prevention of proceeds of crime and in cases where they have the impression that an illegal transaction will be carried out, limited to the matters specified in the article.
In its assessment, the Constitutional Court stated that the purpose of the profession of lawyer is to find and reveal justice and that lawyers use their knowledge, experience and experience in order to produce results in accordance with justice; ‘Regardless of the ultimate purpose of the conversation and exchange of information between the lawyer and his client, a strengthened protection must be provided in terms of lawyer-client confidentiality.’ and emphasised the importance of absolute protection of lawyer-client confidentiality.
In addition to the above-mentioned determination;
What distinguishes the lawyer from other professions is that he/she can guarantee that the conversations he/she has with his/her client will remain confidential,
That they perform a public duty as they assume the role of defence in judicial systems,
That there is a relationship of trust between them and their clients, and that any breach of this trust will prevent lawyers from practising their profession,
The imposition of such an obligation would be an interference with the right to respect for private life; however, interferences with the right to respect for private life must meet compulsory social needs and be proportionate, and interferences that do not meet social needs and are not proportionate, even if they meet social needs, cannot be accepted in accordance with the requirements of the democratic social order,
The Constitutional Court stated that lawyers are in a privileged position with certain rights while practising their profession, that the basis of this privilege is the obligation of confidentiality, and that this provision in the Law would impose an obligation on lawyers that they cannot bear.
As a result of these assessments, the Constitutional Court decided by majority of votes to annul the provision in question on the grounds that it is unconstitutional.
GRC LEGAL Comment
Pursuant to the Law on Attorneys, attorneyship is a public service and attorneys have an obligation of confidentiality. The main purpose of this obligation is to ensure the confidentiality between lawyers representing the right of defence, which is indispensable for legal systems, and their clients. The confidentiality of conversations between lawyers and their clients is an indispensable element of the legal profession and is a privileged right recognised and protected by law in almost all countries. The removal of this privileged status is a burden that lawyers cannot bear in accordance with professional rules.
By deciding to annul the relevant provision, the obligation of the defence to share information with the administration, which contradicts the duty of confidentiality, has been eliminated; thus, the damage that may be caused to the relationship of trust and confidentiality between the client and the lawyer has been prevented. For this reason, we think that the cancellation decision of the Constitutional Court is accurate and beneficial not only for lawyers but also for our entire legal system.
