The prosecutor answered all the unknowns: Where do the excess collected aid funds go?

Public Prosecutor Asım Ekren, in his article titled "Collecting Donations on the Internet-Social Media as a Social Benefit or Problem," answered all the questions about the "donation collection" advertisements that we frequently encounter on the internet.

"INCREASING FUNDS WILL BE TRANSFERRED TO SIMILAR ORGANIZATIONS"

Ekren clarified the issue that everyone is curious about: where the collected but surplus donation funds go. He stated, "In cases where the collected donation does not reach the amount necessary to achieve its purpose or where a surplus remains after the purpose has been fulfilled; these donations will be transferred to organizations that can fulfill that or a similar purpose, as permitted by the authorities."

WHAT HAPPENS TO DONATIONS COLLECTED WITHOUT PERMISSION?

In response to the other frequently asked question, "What happens to donations and funds collected without permission?" Ekren said that the funds collected without permission are confiscated, and their ownership is decided to be transferred to the public. He also noted that the governor decides on the administrative penalties to be applied in cases of unauthorized donation collection.

The full text of Public Prosecutor Asım Ekren's relevant article is as follows:

"This study aims to provide information regarding the similar questions or doubts listed below, which can be further expanded. In other words, this study, conducted to inform individuals or institutions, may concern all of us as individuals. To contribute to a better understanding of the issue, the topic has been explained as simply as possible, without using legal terms and articles, and significantly simplified through questions and answers.

In the internet (social media) environment, we frequently encounter donation collection advertisements through various methods. Sometimes a sports club, association, or foundation, and sometimes individuals, are among those who issue such advertisements or are involved in the organization. Many of us are those who deposit money into bank account (IBAN) numbers provided in good faith, while some of us try to contribute by spreading these calls for help. Perhaps we have thought about it or not, but the legal and ethical dimensions of the issue are not that simple.

Many questions or problems may come to mind regarding the topic. For example,

1- Is it that easy to collect donations with a simple internet advertisement?

2- What is the legislation regarding this matter?

3- How is the accounting done?

4- Is what we are doing legally and ethically correct or wrong?

5- Will we face any issues as a result of these described activities?

6- Are advertisements made without permission a crime?

7- Can the good intentions behind our donations make us complicit in a crime?

8- Is there any harm in sharing such advertisements?

9- What happens to donations collected without permission?

10- What should be done with the remaining (excess) funds from the donations?

11- Is there a method for this work that complies with the legislation and won't get us into trouble?

12- If we encounter such a situation that is contrary to the legislation, what can we do as individuals with a sense of responsibility?

13- What are the duties or authorities of the relevant authorities such as the Ministry of Interior, governorships, district governorships, public prosecutors, and peace judges?

14- Following the recent legal changes regarding donation collection in our country, who can collect donations through the internet and social media, how, why, to whom, and for what duration?

First and foremost, it should be noted that, as a general rule, both real and legal persons can collect donations, including those conducted in the internet environment. However, no one can collect donations for any purpose without obtaining permission from the relevant authority. There is a method, accounting, and bookkeeping for this work.

1- Who will collect donations for what purpose and method?

2- From whom and how much help was collected?

3- Did the help reach the relevant place?

All these questions must be transparent, meaning they should be open and accountable. The donor should not have questions like "Is there really a need for help? Did my donation reach its purpose? Is there something else involved in this matter?"

*** What is the legislation regarding this work?

This issue is regulated in the Donation Collection Law No. 2860 and the Regulation on the Principles and Procedures of Donation Collection that demonstrates its implementation.

*** Who can apply to collect donations, where, and how?

The authority authorized to grant permission or accept notifications for collecting donations is, depending on the situation, the governorship or district governorships. Real persons, associations, institutions, foundations, sports clubs, newspapers, and magazines can collect donations to achieve their purposes, provide assistance to those in need, and carry out or support one or more public services in accordance with the public interest. If the donation collection activity covers multiple districts of a province, permission is obtained from the governor of that province; if it is within the boundaries of a district, permission is obtained from the district governor. If the donation collection activity covers multiple provinces, permission is obtained from the governor of the province where the person initiating the donation collection resides, and the relevant governorships and the Ministry of Interior are informed by the granting governorship. The procedures related to donation collection activities are carried out by the association units of the governorship or district governorship. Since the request to collect donations in the internet environment will, by its nature, cover multiple provinces and be at the national level, permission is obtained from the governor of the province where the interested party resides. Applications can be made by filling out written/printed forms and attaching the relevant documents. After all necessary records are entered into the system and the procedures are completed, the donation collection permit number must be written and issued.

*** How long is the donation collection valid?

The determination of the duration of the donation collection is the responsibility of the granting authority. This period cannot exceed one year. However, if there are justifiable reasons, the granted period can be extended by the granting authority for a period not exceeding one year.

*** Is an identity document required?

Those deemed suitable by the granting authority to participate in the donation collection activity are issued a photo ID that also specifies the subject and duration of the activity. The ID is returned to the granting authority at the end of the activity and kept in the file related to that work.

*** What is the responsibility of those collecting donations?

Those who initiate the donation collection activity are responsible for conducting this activity in an orderly and efficient manner, concluding it within the specified time, protecting the collected money and goods, and using them appropriately for their intended purpose.

*** What is the penalty for unauthorized donation collection?

In cases of unauthorized donation collection on the internet, an administrative fine ranging from ten thousand TL to two hundred thousand TL is imposed. If there is a real situation for collecting donations and someone deceives another person or persons under the guise of a donation activity without permission, causing harm to themselves or others, this act may constitute the crime of fraud.

Those who assist in activities knowing this situation will also be considered as participating in the crime. Those who provide places and opportunities for unauthorized fundraising, and do not terminate this activity despite being warned, will be punished with an administrative fine of five thousand TL. Assistance we provide in good faith does not subject us to penalties, but the situation of those who share such unauthorized announcements may be evaluated within the framework of providing places and opportunities for unauthorized fundraising.

*** What happens to the aid or money collected without permission?

It is decided to confiscate the goods and money collected without permission and to transfer their ownership to the public. The authority to decide on administrative sanctions is the authority that grants permission for fundraising. In the case of unauthorized fundraising, the governor decides on administrative sanctions. The governor can delegate this authority to deputy governors or district governors. Benefits obtained as a result of fraud are subject to confiscation by the court since they are a subject of crime.

*** Where does the excess money collected go?

If the amount of aid collected does not reach the amount necessary to achieve its purpose or if there is a surplus after the purpose has been achieved; the relevant authorities will transfer the said aid to organizations that can achieve that purpose or a similar purpose, as specified by the granting authorities.

*** Under what circumstances can a citizen suspect that fundraising is unregistered or unauthorized?

The fundraising permit number must be written and provided. A photo ID indicating the subject and duration of the activity is issued by the granting authority to those deemed appropriate to participate in the fundraising activity. If the fundraising permit number and photo ID are not shown or if this information is not included in the announcement, it may be a suspicious situation. Including the permit number and ID in the announcements will provide assurance.

*** What can a citizen do when encountering an unlawful fundraising activity?

It will be sufficient to report this situation to the law enforcement forces in the area, to the governorships, or to the public prosecutor's offices regarding fraud, or to law enforcement units. In this case, the legal process explained above will be initiated.

*** What legal actions can be taken if unauthorized fundraising activities are detected on the internet or social media?

Due to the unauthorized fundraising activity being conducted on the internet, it may be possible to remove the content and block access.

Against which publications can a decision be made to remove the content and block access? A decision can be made against publications on the internet that indicate unauthorized fundraising activities. The law states "conducting unauthorized fundraising activities on the internet," meaning that no distinction is made, and all publications in this regard on the internet can be understood.

When can an application be made for the removal of content and blocking access? Since the law does not regulate the application period, applications can be made as long as the relevant publication or content exists on the internet.

Who can apply for the removal of content and blocking access, and where? Two concepts arise in this regard: making a notification for the removal of content and a decision to block access. The relevant governorship or the Ministry of Interior is authorized and responsible for notifying the content and/or service provider for the removal of content related to the fundraising activity. If the fundraising activity concerns a specific province, the governorship of that province or the ministry can notify; if the fundraising activity concerns multiple provinces, the relevant governorships can notify separately or the ministry can notify; if the fundraising activity concerns the entire country, each provincial governorship can notify separately or the ministry can notify. For governorships, the limitation is naturally their own provinces, while for the ministry, it is at their discretion, and there is no limitation. The decision to block access to the relevant content can be made by the peace criminal court upon the request of the governorship or the Ministry of Interior. The concerned parties first notify the content and/or service provider. If the content is not removed within the 24-hour legal period despite the notification, or if there is any other obstacle preventing the notification, an application is made to the peace criminal court for a decision to block access to the content on the internet. An application cannot be made directly to the peace criminal court for blocking access, but if the content is not removed despite the notification or if any notification obstacle occurs, an application can be made to the peace criminal court without notification and directly.

How is the notification made to the content and/or service provider? It has been deemed sufficient for the relevant governorship or the Ministry of Interior to make a notification/request digitally instead of normal postal notification/request for the removal of content related to the fundraising activity. For this, notifications are made via electronic mail or other communication tools using the information obtained from the contact tools, domain name, IP address, and similar resources on the internet pages.

Which peace criminal court is authorized? Since there is no contrary provision in the law, the competent peace criminal court is the court located in the place of the applying authority.

How should the content of the removal notification and access blocking requests be? The law does not provide an explanation regarding the content of the request. The notification for the removal of content should include an explanation or documents related to the determination of this issue, and the request to the peace criminal court should include documents related to the determination of the publication regarding the fundraising on the internet, such as the announcement-explanation, and it should be stated that a notification has been made to the content and/or service provider for the removal of content and that it has not been removed within the specified time, and if the notification could not be made, documents related to the situation preventing this should be attached.

How and within what time can the peace criminal judge decide? In this case, the provisions of Law No. 5651 will apply, not Law No. 2860. If the conditions are not met, the request will be rejected; if they are met, it will be accepted. The decision to block access given by the court in this context is made by blocking access to the content (URL, etc.). According to Article 2 of Law No. 5651, blocking access refers to blocking access from the domain name, blocking access from the IP address, blocking access to the content (URL), and similar methods. Decisions to block access are made by blocking access to the content (URL, etc.) related to the publication, part, or section where the violation occurred. However, if it is technically impossible to block access to the content related to the violation or if the violation cannot be prevented by blocking access to the relevant content, a decision can be made to block access to the entire website.

The judge shall decide on the request without a hearing within twenty-four hours at the latest and send it directly to the Information Technologies and Communications Authority for necessary action.

What is the appeal authority and duration for the removal of content and access blocking decisions? An appeal can be made against this decision according to the provisions of the Criminal Procedure Code. Accordingly, if the request made by the relevant governorship or the Ministry of Interior is rejected by the peace criminal court, the applying authorities can appeal, and if the request is accepted, those who publish on the internet regarding collecting aid can appeal. The appeal is first made to the judge who made the decision. If the judge does not correct the decision, the peace criminal court that will review the appeal will make a final decision on the appeal. The decision on the appeal is made as soon as possible.

If the same content appears on other websites despite the access blocking decision, what can be done? There is no explicit provision in Article 6 of Law No. 2860. Since this is not a criminal provision, Article 9/9 of Law No. 5651 could have been applied by analogy, but this provision has been annulled by the Constitutional Court effective from October 10, 2024. In the case of the publication of the access blocking decision on other websites, there is no need to reapply the previously occurred procedures. Even if it is argued that Article 9/9 of Law No. 5651 cannot be applied by analogy, the issue can be addressed according to the mandatory regulation in Article 5 of the same law, which regulates the obligations of the service provider, stating that "it is obliged to take measures to block alternative access routes regarding the publications for which an access blocking decision has been made."

What happens if the access blocking decision is not implemented? As stated in Articles 8, 9, 8/A, and Annex 4/3 of Law No. 5651, there is no provision in Law No. 2860 regarding the penalties that can be imposed in case of failure to fulfill the decisions in due time, acting contrary to the decision, or fulfilling it incompletely. According to the principle of legality in criminal enforcement, we believe that the provisions of Law No. 5651 cannot be applied by analogy here in similar situations. However, it can be discussed whether the issue will be addressed within the framework of the obligation to remove unlawful publications in Articles 4 and 6 of Law No. 5651 regarding the responsibilities of content, location, and access providers. According to Article 6, which regulates the obligations of the access provider, the access provider is obliged to block access to unlawful content published by any of its users, to take measures to block alternative access routes regarding the publications for which an access blocking decision has been made, and to take the measures notified by the Information Technologies and Communications Authority (BTK). An access provider that fails to fulfill any of these obligations will be fined by the Presidency. As can be seen, since these violations are subject to administrative fines imposed by the Presidency, the relevant public prosecutors should notify BTK for necessary action with a decision of lack of jurisdiction.