[authors: Hergüner Bilgen Üçer Attorney Partnership]
Is there a law to protect whistleblowers? If so, which law?
There is no specific piece of legislation in Turkey that regulates whistleblowing. Having said that, the concepts of "disclosing wrongdoing," "reporting faulty behaviors," and "leniency processes," among others, are regulated under various pieces of legislation in Turkey, as follows:
- Turkey ratified the United Nations Convention against Corruption on 9 November 2006, which calls for the adoption of national legislation to combat the unjustified treatment of whistleblowers who report to the competent authorities. However, no specific national law on whistleblowing procedures has been adopted in Turkey yet.
- Turkey also ratified the ILO’s Termination of the Employment Convention numbered C158 on 4 January 1995, which provides that the filing of a complaint or the participation in proceedings against an employer for violation of laws or regulations or recourse should not constitute valid reasons for termination.
- According to the Turkish Penal Code numbered 5237 ("Turkish Penal Code”), any person who fails to report to the relevant authority an offense that is in progress or that has already been committed but where it is still possible to limit its consequences may be sentenced to imprisonment for a term of up to one year. Nevertheless, this reporting provision is vaguely drafted and there are a very limited number of precedents, evidencing that it is an ineffective provision.
- The Labor Law numbered 4857 ("Labor Law") provides protection to employees if they file a complaint against their employer to follow up their employment related rights. If the employer terminates the employment contract due to this complaint, then the termination will not be deemed a valid reason under the Labor Law.
There is neither a specific rule nor a right vested to employees to report the behaviors of co-workers, but Turkish law imposes a duty of loyalty on employees. Acts such as abuse of the employer's trust, theft, or disclosure of the employer's confidential and professional secrets, which are in contravention of the duty of loyalty, are deemed just grounds for termination by the employer. As per the Turkish Code of Obligations numbered 6098, employees are also obliged to do their work diligently and act loyally by protecting the legitimate interests of the employer. In practice, if an employee witnesses a wrongdoing at the workplace by another co-worker, such employee should report this to his/her employer in accordance with the duty of loyalty.
Are companies legally obliged to introduce a whistleblowing system?
Although there is no specific legislation in Turkey mandating the establishment of a whistleblowing system, many global entities in Turkey have established whistleblowing systems. Also, the "Communiqué on Determination and Implementation of Corporate Governance Principles" ("Communiqué") by the Capital Markets Board of Turkey, sets corporate governance standards for publicly listed companies and stipulates that the activities of a company should be governed by the code of ethics and disclosed to the public on their websites. As a part of the ethics rules, companies fight against all kinds of corruption, including extortion and bribery, and respect and support human rights. Moreover, auditing of financial systems and sustaining an ethics policy could be considered risk management measures and would allow reporting of any corrupt activities once detected by the audit committees (a committee that must be formed in accordance with the Communiqué).
If so, which companies must introduce a whistleblowing system (number of employees, turnover, sector)?
Please refer to the explanations under Question 2 above
What forms can a whistleblowing system take (written, verbal, email, electronic tool)?
There is no legal provision regulating the form of whistleblowing systems. However, reports are typically in writing for record-keeping purposes.
Which reports must be permitted?
The scope of reporting is not limited. However, under Turkish law, informed, explicit consent of the data subjects must be obtained before processing (and transferring) their personal data. Additional safeguards must also be taken before processing sensitive personal data (e.g., data relating to persons' ethnic groups, political views, racial origins, sexual orientation, or health).
Must anonymous reporting be guaranteed?
There is no specific legislation restricting (or allowing) disclosure of the identity of the whistleblower. Nevertheless, under Turkish law, employers have a duty to protect employees against mobbing and to process employee data only to the extent necessary for due performance of the employment contract. As such, the identity of a whistleblower who so requests must be kept anonymous provided that the anonymous reporter did not gain the reported information through unlawful means and the reported information reflects the truth.
Who must be able to provide information (only employees or also external third parties)?
Turkish law does not regulate this matter. Although the majority of whistleblowers in Turkey are employees, considerable reports are also received from customers and suppliers.
Can companies rely on one centralized hotline, or is it necessary to have one hotline for each subsidiary?
Turkish law does not prohibit companies from establishing one centralized hotline.
Can a whistleblowing system also be operated by an external body (e.g. consultant)?
Turkish law does not specifically regulate this matter. As such, an external body may operate the whistleblowing system provided that necessary measures are taken to protect personal data.
Are sanctions imposed for failure to introduce a whistleblowing system?
No. However, please note the explanations under Question 1 regarding the reporting obligation arising under the Turkish Penal Code.
