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?
Internal investigations are not directly regulated by Turkish law, and therefore there is no statutory or regulatory obligation that requires companies to conduct an internal investigation. However, there are various regulations under labour law, company law and anti-money laundering law which bring different corporate obligations and liabilities that can only be met or carried out through conducting an internal investigation. Therefore, while conducting an internal investigation is not regulated as a legal obligation, it can be a necessary tool for the performance of other legal obligations.
Article 25 of Labor Law No. 8423 (“Labor Law”) regulates the situations in which an employer has the right to make a termination, which can only be used within six working days after the time of discovery and at the latest within one year from the time of occurrence. On the other hand, if the termination of an employment contract violates the provisions of the Labor Law, such as termination without just cause or rightful cause, without taking statements, etc., then the employee can initiate a re-employment lawsuit by claiming that the termination was invalid. In order to comply with these requirements, in cases where the employer needs to investigate and ascertain the situation that may lead to termination, they must take immediate action to conduct an internal investigation and to reveal the facts. Internal investigations must be conducted in compliance with other legal liabilities arising from the local and binding cross-border labour laws, privacy laws etc. in order not to harm the “legitimacy” of the internal investigation, preserving the “rightfulness” of the termination.
Turkish Code of Commerce No. 6102 regulates the board of directors’ responsibility to establish an expert committee to run and develop a system for the purpose of early detection of causes that jeopardise the company’s existence, its development and continuity of the business unit in danger, and to apply the necessary measures and remedies in this regard and manage risks; whereas this is an obligation for companies whose shares are listed on the stock exchange, for others, it depends on the decision of an auditor. In order to fulfil these regulatory obligations, such as detecting and revealing misconduct, companies may need to conduct an internal investigation. Otherwise, the board of directors could be held liable for breach of its regulatory responsibilities, which exposes the company to damages.
On the other hand, the Law on the Prevention of Laundering the Proceeds of Crime No. 5549 (“Law No. 5549”) also sets out several obligations with regard to establishing training, internal audit, control and risk management systems and other measures to obliged parties (such as banks, financial institutions, companies operating in specific industries, etc.), and expects such parties to put into operation internal systems to detect and notify noncompliant transactions in a timely manner.
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?
Turkish law requires companies to operate neither a whistleblower reporting hotline nor a whistleblower protection mechanism. Companies set up their own mechanisms to receive identified or anonymous reports and complaints and to prevent retaliation. Since there is no regulated benchmark with regard to dealing with whistleblower tips, all companies have their own practices which depend on their risk-based approaches. As there is no regulation on whistleblower protection, it is recommended that companies establish a reporting hotline that also allows whistleblowers to report anonymously, due to the fact that employees are mostly hesitant or afraid to report abuse or misconduct. Regardless of whether or not the whistleblower tip is anonymous, companies must ensure the privacy of the whistleblower in order to prevent retaliation.
Companies are also advised to pay attention to whistleblower reports, especially where they relate to criminal activities such as harassment, sexual abuse, and white-collar crimes including fraud and bribery. Otherwise, the company may be held responsible for not reporting criminal activity and for their “wilful blindness” with regard to whistleblower reports, which consequently increase the exposed damages.
In addition to the above, it must be noted that Turkish Data Protection Law No. 6698 regulates the obligation of data controllers to establish and notify their communication lines so that data subjects are able to contact them regarding personal data matters.
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?
It is crucial to determine the identity of “the client” before engaging outside counsel to conduct an internal investigation. Specifically, the client is defined as the person who “retains” the outside counsel, and so may be top-level management such as the board of directors or the major shareholders; alternatively, the Legal or Compliance Departments may select the outside counsel due to their familiarity with the sector. Regardless of who retained the outside counsel, it is essential that any conflicts of interest be considered before the engagement. In particular where the underlying misconduct of the investigation is revealed to relate to the manager (or legal director, etc.) who retained the outside counsel, the outside counsel should be aware of the action to take next. Therefore, the engagement contract must clearly address who the outside counsel will report to, request information and data from, raise questions to, and contact in case of any conflict of interests, and who is authorised to terminate the investigation.
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?
Firstly, the fundamental legal principles regarding the criminal liability of legal entities (including companies) are stipulated under Articles 20 and 60 of the Turkish Criminal Code (“TCC”). Article 20 TCC expressly states that criminal sanctions cannot be imposed on legal entities. In other words, legal entities are not criminally liable under Turkish law, nor they can commit crimes in terms of Turkish criminal law. As per Article 60 TCC, only “security measures” in the forms of (i) annulment of licences, and (ii) seizure of property may be imposed upon legal entities, provided that such entity benefitted from a crime committed by a real person.
Article 169 TCC lays down a more specific rule for certain white-collar crimes: “Security measures specific to legal entities are imposed upon the legal entities that benefited from the crimes of theft, abuse of trust and fraud.”
As a legal entity cannot be the perpetrator of a crime, its voluntary disclosure of documents will not affect the security measure that the said entity is subject to. However, in case an employee or an executive of the entity commits a crime but then voluntarily discloses documents and cooperates with the law enforcement authorities, they can benefit from the “effective remorse” mechanism in exchange for a reduction in penalty.
According to Article 168 TCC, if the perpetrator of the crimes of theft, damage of property, breach of trust, fraud, fraudulent bankruptcy, or negligent bankruptcy displays remorse and compensates for the victim’s loss before prosecution starts, the sentence to be imposed will be reduced by up to two-thirds. If the effective remorse is displayed after the prosecution starts, the sentence to be imposed is reduced by up to one-half. It must be reiterated that the effective remorse mechanism does not affect the security measure to be imposed upon the legal entity with which the real person perpetrator is affiliated.
Another sanction is stipulated for legal entities under the Law of Misdemeanor. According to Article 43/A, if the body or representative of a legal entity or a person taking part in the said legal entity’s operations commits the following for the benefit of the legal entity, an administrative fine of between 10,000 to 2 million liras is imposed on the entity: fraud or aggravated fraud; manipulating tenders; fraudulency in the fulfilment of a deed; bribery; laundering proceedings of crime; embezzlement, as regulated under Article 160 Banking Law; smuggling offences, as regulated under the Anti-Smuggling Law; the offence regulated under the fifth additional article of the Petroleum Market Law; and terrorist financing, as regulated under Article 8 Anti-Terrorism Law. Again, this administrative fine is the result of the illegal act committed by a real person for the benefit of the legal entity.
As for civil penalties, under Turkish civil law, monetary compensation in tort cases cannot be punitive. In other words, if any party has suffered pecuniary damages as a result of the illegal acts committed over the course of a legal entity’s activities, the compensation cannot exceed the loss suffered by the claimant by any means. Disclosure of documents or cooperation with law enforcement authorities does not affect the monetary damages that the claimant would be awarded by the court.
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?
Although there is no regulation specific to disclosure during internal investigations, some laws order that certain activities be reported to regulative authorities such as the Financial Crimes Investigation Board (“MASAK”), Banking Regulation and Supervision Agency (“BRSA”) and Capital Markets Board (“CMB”).
According to Article 4 Law No. 5549, if those who are deemed obligors under this Law suspect that an asset subject to a transaction was obtained by illegal means or used for illegal purposes, they must report the transaction to the MASAK. According to Article 28 No. 5549, a Suspicious Transaction Report Form should be filled and submitted to the MASAK within 10 days of the suspicion arising. Pursuant to Article 13 Law No. 5549, an administrative fine of 50,000 liras will be imposed on an obligor who violates the obligation to report.
Another obligation to disclose is regulated under Article 102 Capital Markets Law No. 6362. According to Article 102 of said Law, investment enterprises and institutions determined by the CMB must report to the CMB if they suspect that crimes of “insider trading” and “market fraud” have been committed. According to Article 103 of the same Law, an administrative fine of between 20,000–250,000 liras is imposed in case of violation of the Capital Markets Law. The same Article goes on to state that if the perpetrator is a legal entity, taking the gravity of the violation and the number of victims into account, and not less than the aforementioned lower limit, an administrative fine in the amount of 1% of the gross sales revenue given in the independently audited annual financial statements and 20% of the profits before taxation is imposed.
Last but not least, the TCC lays down a general provision under Article 278 under the title “failure to report a crime”. Although not holding responsible persons that have not reported crimes already committed, the second subclause of the same Article holds that although the crime has already been committed, if the consequences of such crime which are possible to limit go unreported, the person who fails to report these will be sentenced to up to one year’s imprisonment.
Although the said provision is inapplicable to legal entities as they cannot be the perpetrators of a crime, Human Resources personnel and certain company executives may be held liable if it is found that a crime has been committed over the course of an internal investigation and such individuals did not report it.
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?
Regardless of whether there is an ongoing internal investigation, Article 332 Criminal Procedure Code No. 5271 (“CPC”) holds that if a public prosecutor, judge or court asks for written information during a pending investigation or prosecution, it must be responded to within 10 days. If there is an obstacle to responding within this period, the reason for this along with an estimated date of response must be notified within the same period. Therefore, such correspondence is usually conducted in writing.
A criminal proceeding consists of two stages, namely investigation and prosecution. Article 157 CPC rules that without prejudice to the right to defence, the investigation stage is confidential. This means that only the parties themselves and their attorneys with duly issued power of attorney may have access to the information and documents in the case file. However, after an indictment is issued and the criminal prosecution starts, the proceeding is public and any attorney has access to the file. Moreover, unless the court decides otherwise, the dispute may be reported as news. This naturally brings the risk that the company’s business and trade secrets are exposed to the public.
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?
An entity is not required to liaise with local authorities if it is aware that it is the subject of a government investigation before starting an internal investigation. As is explained above, only certain regulations oblige entities to report to authorities.
Though not a legal obligation, with the assistance of a lawyer, it may be wise to cooperate with local authorities with regard to having oversight over the investigation and crisis management.
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?
Under Turkish criminal procedure law, the rule of revelation of the material facts prevails. This is a result of the rule of law. A criminal court ex officio, without the requests of parties, must undertake the necessary research to establish if the crime subject to the indictment has been committed by the perpetrator. Thus, an entity’s conduct would not affect the scope of a criminal 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 Republic of Turkey is party to many treaties regarding cooperation in criminal matters, such as the European Convention of Criminal Matters, which is the broadest extradition treaty to which Turkey is party. Apart from that, Turkey is party to bilateral and regional treaties on the same matter. By virtue of such treaties, countries demand the extradition of criminals and requests assistance for the purpose of conducting criminal proceedings from one another. Apart from that, the Law on International Cooperation on Criminal Matters No. 6706 also sets forth the principles for extradition and international letters rogatory.
As for facing investigations in multiple jurisdictions, Turkey adopts the principle of “ne bis in idem”, which restricts the possibility of a defendant being prosecuted repeatedly on the basis of the same crime. According to Articles 11–12 TCC, neither a Turkish citizen nor a foreigner can be sentenced in Turkey if there is a finalised verdict given in a different jurisdiction on the same matter. It must be reiterated that as a legal entity cannot be the perpetrator of a crime, this rule also applies to company executives and employees.
If there is a criminal investigation and/or prosecution centering on a legal entity, the Turkish court may be notified of said proceedings in order to prevent a case of double jeopardy.
4 The Investigation Process
4.1 What steps should typically be included in an investigation plan?
The investigation plan should firstly address the scope of the investigation, the misconduct aimed to be revealed, and its legal positioning. It should also focus on how the investigation will proceed from the moment the decision is taken to initiate it up until the investigation report is finalised, and disclosed to legal authorities, if necessary. The investigation plan should identify the main strategy and procedures to be implemented. The investigation plan must be tailor-made, prudently and practicably in accordance with the type of misconduct, the company’s size, geographical location, operations and number of employees, etc. There are various subjects and steps that must be included in almost all investigations, as well as certain sui generis steps that should be considered according to the underlying purpose of the investigation. An investigation plan should at least include the:
- investigation team, taking into consideration potential conflicts of interest and the possibility of involvement with the misconduct under investigation;
- measures and actions to take in order to preserve the privacy of the investigation and the management team and employees to whom the investigation will be disclosed, taking into consideration potential conflicts of interest and involvement in the misconduct being investigated;
- list and order of interviewees and witnesses to be interviewed;
- list and order of questions to be asked;
- measures to be taken to protect interviewee employees and witnesses and to prevent retaliation;
- measures to maintain workplace operations;
- location and form of proof and the collection method to be used;
- measures to prevent the destruction of proof; and
- support to be outsourced, such as outside counsel, IT and forensic services for data collection, or in order to conduct the oral interviews.
The investigation plan is necessary to ensure the legitimacy and compliance of the investigation process with relevant regulations, such as the employment and data protection laws, and to assess whether the misconduct is a criminal activity that must be reported to the prosecution office.
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?
Companies may need outside counsel when the investigation requires professional legal support in order to comply with local or other jurisdictions’ regulations. Even though there is in-house counsel in place, the company may need the support of outside counsel to prevent a potential conflict of interests. Since most of the crucial details and proof are obtained during interviews, it is vital not to damage the legitimacy of the proof; therefore, the company may also need outside counsel specialised in investigations to handle the interviews professionally and in compliance with local regulations. The size and scope of the investigation, number of interviewees and their locations also may affect the company’s own capability to handle the investigation and its decision to hire outside counsel. During the process of researching and collecting proof, most of the companies outsource IT and forensic services to examine company devices and software, as well as for data classification and analysis in order to identify and examine only what is necessary among voluminous collections of data. IT and forensic support may be also essential to ensure that proof only consists of necessary data, having been segregated from personal data.
The criteria considered when retaining outside counsel generally relate to conflicts of interest, prior experience in internal investigations, and familiarity with the structure, organisation, industry, business culture and the scheme of things in similar businesses, including the aspects for which monitoring is weak and open to abuse and misconduct.
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?
In Turkey, there is no legislation specifically regulating attorney-client privilege in the context of internal investigations. Therefore, the Attorney’s Act No. 1136 (“Attorney’s Act”) and Criminal Procedure Code No. 5271 (“CPC”) apply to the extent appropriate. All communication between the attorney and the client, such as correspondence and calls, is protected by the Attorney’s Act. Article 36 Attorney’s Act prohibits attorneys from revealing information obtained in the performance of their duties. In addition to this, both the Attorney’s Act and the CPC set out conditions for the search of attorney offices. Accordingly, an attorney’s office can only be searched upon a court decision, limited to the event specified in the decision and under the supervision of a public prosecutor. It is also stipulated in both laws that the president of the Bar Association or a representative lawyer should be present during the search.
However, although the stated provisions may be accepted as best practice, there are decisions in which the Turkish Competition Board (“Board”) does not consider the correspondence and documentation between the lawyer and the company under investigation within the scope of attorney-client privilege. The Board’s general approach here is that only outside counsel (if directly related to the exercise of the client’s right to defence) and companies that had raised an objection during the on-site inspection may be evaluated within the scope of the privilege.
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)?
The general rule covering the confidentiality obligation regulated in the Attorney’s Act also applies, as there is no specific regulation or decision regarding interactions between the client and third parties engaged by outside counsel during the investigation. Within this scope, it can be interpreted that the criteria adopted by the Board in its decisions regarding attorney-client confidentiality will also apply here (see question 5.1 above).
5.3 Do legal privileges apply equally whether in-house counsel or outside counsel direct the internal investigation?
The provisions in the Attorney’s Act No. 1136 and the Criminal Procedure Code No. 5271 (“CPC”) regulating attorney-client confidentiality does not make any distinction between in-house and outside counsel. Both the wording of the Attorney’s Act and the CPC refer to “lawyer” with no distinction. However, from the Board’s approach it can be argued that these legal privileges do not apply equally between in-house and outside counsel when directing an internal investigation. There is a consensus in the doctrine that legal privileges granted to legal professionals only cover outside counsel who do not have an employment relationship with the company under investigation, and the communication between the client and in-house counsel is not subject to attorney-client privilege.
5.4 How can entities protect privileged documents during an internal investigation conducted in your jurisdiction?
A document between a client and attorney can be deemed confidential and privileged provided that the attorney is outside counsel and the document is related to the exercise of client’s right to defence. In this case, it is recommended to mark the document, which contains the correspondence with outside counsel, as “confidential and privileged” in order to protect such documents during an internal investigation.
As in-house counsel are not granted attorney-client privilege, it is recommended to work with external law offices in addition to in-house counsel in order to protect the information shared for legal purposes in a possible internal investigation.
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 is no legislation in Turkish law setting out the method by which the information obtained by enforcement agencies as a result of an internal investigation should be kept confidential, regardless of whether such information is provided voluntarily or not. Therefore, the issue can also be resolved by interpreting the approach of the Board in its examinations. In its decisions, the Board generally tends to camouflage such confidential results and refer to them as “trade secrets” or “confidential information”.
6 Data Collection and Data Privacy Issues
6.1 What data protection laws or regulations apply to internal investigations in your jurisdiction?
The main data protection legislation in Turkey is the Turkish Personal Data Protection Law No. 6698, which entered into force on 7 April 2016. All data controllers subject to the Law must have been compliant with it since 7 April 2018, the end date of the two-year grace period. The Law sets forth the conditions for the processing of personal data and the general principles to comply with. However, Turkey was securing the individual’s right to privacy and data protection long before the enactment of this Law, with Article 20 of its Constitution titled “Privacy and Protection of Personal Life”.
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?
Although there is no legal requirement to prepare and issue document preservation notices such as legal hold notices in the Turkish jurisdiction, it is common practice for companies to pre-inform the individuals, pursuant to the jurisdictional decisions. Whether it is within the scope of the investigation or not, the employer has control over the computers, telephone and email addresses provided to the employees by the employer. However, in line with the decisions of the Constitutional Court, employees whose documents or provided devices will be examined must have been informed before the investigation is conducted, and other conditions must be met, in order not to violate the privacy of the employee. The written document signed by the employee stating that the pre-notification has been made should be kept in the Compliance Department.
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.)?
When documents to be gathered contain personal data and are located in different jurisdictions, it is of vital importance to comply with the relevant legislation of each jurisdiction in question. Since the factors to consider shall vary depending on the jurisdiction, in each case legal and compliance support should be sought from local legal and compliance counsel.
Bearing in mind the broad territorial scope of the European General Data Protection Regulation (“GDPR”), it should be highlighted that the European Commission has not yet recognised Turkey as a country providing adequate protection. Therefore, extra attention should be paid when it comes to transferring personal data to Turkey within the scope of the investigation.
6.4 What types of documents are generally deemed important to collect for an internal investigation by your jurisdiction’s enforcement agencies?
There are no such common practices regarding requested documents, and enforcement agencies generally have the authority to request any documentation. Important documents include the following: internal reports; documents evidencing processes; internal audit reports; standard forms; employee files and data; other internal data; phone recordings; retrieval of messages from phones and tablets; correspondence; financial records; and sales and marketing material.
6.5 What resources are typically used to collect documents during an internal investigation, and which resources are considered the most efficient?
Data is digitally processed in today’s world and, therefore, there are various data resources. In an internal investigation, it is crucial to determine the data resources whole and complete. Within this context, some of the major resources to collect documents are as follows: office computers to which employees have access; mobile phones/smartphones; portable data storage devices (USB flash drives, external discs); financial records; mail servers; cloud storage services; General Packet Radio Service (“GPRS”), phone and camera records; social media posts; and instant messaging chats, etc. It should be noted that resources may vary depending on the different tools used by companies, such as systems, software, etc.
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?
It may be possible for the judicial or enforcement authorities to permit the use of predictive coding techniques according to the context of the case. Data analytics – making inferences from the entire data after taking the raw data from its source, cleaning it, making it usable and analysing it using various techniques – can be used to review voluminous collections of documents. Best practices for reviewing such collections in internal investigations also include: defining search and review methodologies using keyword searches; predictive coding; and analytical software.
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 specific regulations for witness interviews with employees, former employees or third parties.
However, especially with regard to employees, employers must not act in violation of their duty to observe the worker in witness interviews, in accordance with the Labor Law.
In addition, since contracts with suppliers must be performed carefully within the scope of the Turkish Code of Obligations, the employer making the interview should avoid behaviour that may make it impossible to continue the contract.
In addition, the principle of confidentiality, one of the basic principles of internal investigations, is specially protected by Turkish Personal Data Protection Law No. 6698.
There is no need to consult any authority in order to initiate a witness interview.
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 may be situations in which workers must cooperate as per the fidelity and care towards employers obligation within the scope of the Labor Law. Apart from this, since witness interviews will be based on consent, it is possible for the parties to write a binding protocol on this issue or to decide on it as a duty in the Contract of Employment.
The circumstances in which witnesses have the right to refuse to participate in an interview are not specifically regulated. However, even in cases where it is necessary for the worker to attend the interview within the scope of the loyalty and care obligation, the universally accepted right to refuse to testify under Turkish procedural law should also be applied here.
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?
There is no obligation to provide legal representation to witnesses, and there is no obstacle to this. In fact, this issue can sometimes be evaluated within the scope of fulfilling the worker’s right to defence under the Labor Law.
7.4 What are best practices for conducting witness interviews in your jurisdiction?
Although there are is regulation on this issue, applications for best practice have been improved. In this direction, if more than one person is to be interviewed, such interviews should be held simultaneously, the interview should be carried out with a team in order to eliminate the risks of the crime of torment or sexual crimes under the TCC, and the statements taken should be recorded in writing, read to the witness and then signed by the same. In addition: the individuals who ask questions in the interview and those who record the interview should be different; interviews should be tailor-made according to the background of the person; and the questions should be determined in advance and uniformly, specifically for the subject or the group of people. Finally, it should be ensured that: 80% of the interviewee’s speech is encouraged by open-ended questions; the investigators maintain their impartiality and confidentiality; the interviewers should be well informed, confident, not excessively sincere or serious; and the interview should be based on providing enlightenment and to prevent retaliation. Techniques such as cross-examination can be used, but the interview should be conducted in a non-accusatory manner in order to avoid wearing down the interviewee.
7.5 What cultural factors should interviewers be aware of when conducting interviews in your jurisdiction?
Since the working culture in Turkey is relatively “closed”, fostering a culture of speaking up is very important in terms of witness interviews. For example, the witness should be encouraged to speak first with background questions, followed by yes/no questions, and finally open-ended questions. In addition, being sensitive with regard to religion, language, gestures and accents is very important for communication, as entities in Turkey host a diversity of cultures.
7.6 When interviewing a whistleblower, how can an entity protect the interests of the company while upholding the rights of the whistleblower?
The most important way to simultaneously protect a whistleblower’s rights and the interests of the entity is to establish a Whistleblower Policy, which prevents retaliation and does not cease to protect the reputation of the entity. Establishing anonymous and reliable hotlines and fostering a culture of speaking up are concrete steps that can be taken in this context.
7.7 Can employees in your jurisdiction request to review or revise statements they have made or are the statements closed?
This is entirely at the discretion of the entity; it is possible to either provide such an opportunity to the employees, or to prohibit it. In any case, in case of conflicting statements after the interview, taking a statement on this matter might prove useful in the procedures to follow.
7.8 Does your jurisdiction require that enforcement authorities or a witness’ legal representative be present during witness interviews for internal investigations?
There is no such obligation under Turkish law, and when a request is made in this regard, entities can decide on it on their own; although they share similarities, internal investigations cannot be evaluated in the exact same manner as official criminal procedures.
8 Investigation Report
8.1 How should the investigation report be structured and what topics should it address?
As the last phase of the investigation, the investigation report must clearly conclude the investigation. It should include all the steps of the investigation, interviewee statements, findings and proof gathered, the investigation process and the rational results reached. The report should answer the underlying reasons for the investigation, as well as how the investigation was conducted, the evidence gathered, and how each finding was concluded. The report must not be constituted from a stack of gathered information; rather, it must be presented in a careful, analysed, integrated and complete form. The statements, findings, root cause analysis and conclusions should be presented in order and in a way that allows the reader to link the events with their results and understand the connections between all the dynamics of the investigation. The report must only reflect the truth, and clearly and objectively set forth the events, proof and results with no bias or presumptions.
Companies should also consider that these reports may be requested by courts in legal proceedings, and therefore they should be clear, objective, understandable and comprehensible to any reader.
This article was first published on ICLG in January 2022. See the chapter here.