The appointment of a trustee to the management of a company during a criminal investigation constitutes a serious protective measure that has direct consequences not only for the suspect or the company’s directors, but also for the shareholders, employees, creditors, contractual relationships, and the economic value of the company. Accordingly, Article 133 of the Turkish Code of Criminal Procedure (Law No. 5271) does not regulate the appointment of a trustee as a general intervention in the management of a company, but rather as an exceptional criminal procedural measure that may be imposed only in respect of certain offences and subject to strict conditions.
In practice, the appointment of the Savings Deposit Insurance Fund (“TMSF”) as trustee makes the scope of the measure even more significant. This is because the current legislation grants the TMSF powers extending beyond the mere continuation of the company’s day-to-day management, including, under certain circumstances, extensive powers such as the sale, dissolution, and liquidation of the company. Therefore, where a trusteeship order is issued in respect of a company, the legal assessment should not be limited to the initial appointment decision. It should also separately examine whether the conditions justifying the measure continue to exist, whether the specific statutory conditions for the TMSF to act as trustee are satisfied, whether the measure remains proportionate, and which legal remedy is available against specific acts and transactions carried out by the TMSF.
1. Appointment of a Trustee to a Company's Management under Article 133 of the Turkish Code of Criminal Procedure
Pursuant to Article 133/1 of the Turkish Code of Criminal Procedure, the appointment of a trustee to the management of a company requires the existence of strong grounds for suspicion that the offence is being committed within the scope of the company’s activities and that the appointment of a trustee is necessary for the establishment of the material truth. During the investigation phase, the measure is ordered by the judge, whereas during the prosecution phase, it is ordered by the court. The public prosecutor does not have the authority to independently appoint a trustee to the management of a company under Article 133 of the Turkish Code of Criminal Procedure.
Two points are of particular importance here. First, it is not sufficient, in itself, for there to be a suspicion that a shareholder or director has committed an offence; a link of the nature required by Article 133 of the Turkish Code of Criminal Procedure must be established between the suspicion and the company’s activities. Second, the measure must be necessary for the establishment of the material truth. Even if these conditions exist at the time the order is issued, they must remain valid and up to date for as long as the measure remains in force. Given the temporary nature of protective measures, a trusteeship measure whose underlying conditions have ceased to exist cannot be maintained indefinitely merely on the basis of an order issued in the past.
1.1. Requirement of a Listed Offence
Article 133 of the Turkish Code of Criminal Procedure does not apply to all offences. Paragraph 4 of the provision enumerates certain listed offences, including migrant smuggling and human trafficking; the manufacture and trafficking of narcotic or stimulant substances; counterfeiting currency; prostitution; providing a place or means for gambling; embezzlement; laundering of assets derived from crime; armed organization and supplying an organization with weapons; offences against state secrets and espionage, among others. There are also cases in which special laws make reference to Article 133 of the Turkish Code of Criminal Procedure. If the legal characterization of the offence under investigation subsequently changes to an offence that does not fall within the scope of the listed offences, the continuation of the measure must be reconsidered.
1.2. Supervisory Trusteeship and Management Trusteeship
The scope of the trustee’s authority must be expressly specified in the appointment order. The validity of the decisions and transactions of the management body may be made subject to the trustee’s approval; alternatively, the powers of the management body, together with the authority to manage the company’s shares or securities, may be transferred entirely to the trustee. This distinction is of critical importance in terms of the principle of proportionality. If the purpose of the criminal investigation does not require the complete removal of the existing management, it should be specifically assessed, on the basis of concrete grounds, whether the less intrusive model of approval and supervision would be sufficient.
2. The Current Legal Basis for the Appointment of the TMSF as Trustee
The legal framework governing the appointment of the Savings Deposit Insurance Fund (“TMSF”) as trustee to companies in criminal investigations was shaped by regulations introduced during the state of emergency (OHAL) period. However, under the current legal framework, Provisional Article 2, which was added to Law No. 7145 by Law No. 7539, published in the Official Gazette dated 4 February 2025 and numbered 32803, has particular significance. This provision provides for the appointment of the TMSF as trustee in certain criminal investigations for a period of five years from the date of its entry into force.
Pursuant to Provisional Article 2, the TMSF may be appointed as trustee where there are strong grounds for suspicion in respect of the offences of laundering of assets derived from crime under Article 282 of the Turkish Criminal Code, forming an armed organization under Article 314, supplying an organization with weapons under Article 315, or financing of terrorism under Article 4 of Law No. 6415 on the Prevention of the Financing of Terrorism, provided that a judicial decision has been issued for the appointment of a trustee to the company pursuant to Article 133 of the Turkish Code of Criminal Procedure. Accordingly, not all of the listed offences under Article 133 of the Turkish Code of Criminal Procedure are sufficient for the TMSF to be appointed as trustee under this special provision. For the TMSF, the narrower group of offences specifically enumerated in Provisional Article 2 must also be taken into account.
Where the TMSF is appointed as trustee, the rights and powers granted to the Fund under the Banking Law No. 5411 shall apply mutatis mutandis. Companies are required to be managed under the supervision of the TMSF and through managers appointed by the Fund, in accordance with commercial practices and with due regard to the prudent merchant principle. The Fund is also empowered, on the grounds of the company’s financial condition, shareholding structure, market conditions, or other circumstances, to order or carry out the partial or complete sale of the company or its assets, as well as the dissolution or liquidation of the company. The breadth of these powers makes the proportionality review of the trusteeship order and its continuation all the more significant in practice.
3. Objection to the Decision to Appoint a Trustee
During the investigation phase, an objection may be lodged against a decision issued by the Criminal Judgeship of Peace pursuant to Article 133 of the Turkish Code of Criminal Procedure, in accordance with Articles 267 et seq. of the Code. Under the current wording of Article 268, unless otherwise provided by law, the time limit for filing an objection is two weeks from the date on which the person concerned becomes aware of the decision. The objection must be submitted to the authority that issued the decision. If that authority does not rectify its decision, it must refer the file, within a maximum of three days, to the competent authority for examination of the objection.
For an objection to be effective, a general defence stating merely that “no offence has been committed” is not sufficient. Each of the requirements for the trusteeship measure must be specifically challenged. For example, the case file and supporting documents should demonstrate that there is no connection between the company’s activities and the alleged offence; that the strong grounds for suspicion are not supported by concrete evidence; that the material truth can be established through other protective measures and the evidence already collected; or that the appointment of a trustee with full management powers is disproportionate compared with a supervisory or approval-based trusteeship arrangement.
4. Lifting or Narrowing the Scope of the Trusteeship Measure
Article 133 of the Turkish Code of Criminal Procedure does not contain a detailed provision requiring the trusteeship measure to be reviewed at regular intervals or prescribing a maximum duration for the measure. This does not mean that a measure, once imposed, may remain in force without further scrutiny. If the strong grounds for suspicion, the connection with the company’s activities, or the necessity underlying the protective measure have ceased to exist; if the measure no longer serves any purpose in establishing the material truth; or if a less intrusive measure has become sufficient, an application may be made for the measure to be lifted or for its scope to be narrowed.
4.1. Application for Lifting the Measure During the Investigation Phase
In practice, the safest course of action is to expressly request from the Criminal Judgeship of Peace that imposed the trusteeship measure that the measure be lifted or that the trustee’s powers be narrowed. The application should also specifically identify any new circumstances that have arisen since the date of the initial decision. The stage reached in the investigation, the fact that the evidence has been collected, the outcome of any Financial Crimes Investigation Board (MASAK) or expert examinations, the nature of the company’s ordinary commercial activities, the impact of the intervention in the company’s management on employees and contractual relationships, and the risks arising to the value of the company are all concrete factors relevant to the proportionality assessment.
The rejection of an application for lifting the measure by the Criminal Judgeship of Peace is itself a judicial decision and may therefore be challenged by way of objection pursuant to Articles 267 and 268 of the Turkish Code of Criminal Procedure. Accordingly, an objection to the initial appointment decision and a subsequent application for lifting the measure serve distinct functions: the former challenges whether the conditions for the measure were satisfied as of the date of the initial decision, whereas the latter calls into question whether the measure remains necessary and proportionate in light of the circumstances prevailing at the time of the application.
4.2. Following a Decision of Non-Prosecution
A decision of non-prosecution (“KYOK”) constitutes one of the strongest grounds for the termination of a trusteeship measure. Indeed, Article 133/2 of the Turkish Code of Criminal Procedure expressly provides that, in the event of a decision of non-prosecution or an acquittal, the trustee’s fees paid from the company’s funds shall be borne by the Treasury together with statutory interest. Nevertheless, in practice, it is risky to assume that the trusteeship measure automatically comes to an end before the Trade Registry and the TMSF solely upon the issuance of a decision of non-prosecution. The Court of Cassation has held that the Criminal Judgeship of Peace that imposed the measure must issue an explicit decision terminating the trusteeship.
16th Criminal Chamber of the Court of Cassation, Case No. 2018/5333, Decision No. 2018/5602, dated 31 December 2018.
“Upon the issuance of a decision of non-prosecution, the underlying grounds justifying the measure cease to exist…”
In the case, the dispute arose when the TMSF experienced uncertainty in practice despite the public prosecutor’s office notifying the parties, together with the decision of non-prosecution, that the measure had come to an end, on the grounds that no judicial decision had been issued to that effect. The Court of Cassation held that the Criminal Judgeship of Peace that had issued the trusteeship order was required to order the termination of the measure. This precedent demonstrates the practical importance of directing an application for lifting the measure to the proper authority and expressly requesting a decision terminating the trusteeship.
4.3. During the Prosecution Phase
Following the acceptance of the indictment, an application for the lifting of the measure or for a modification of its scope should be addressed to the court conducting the trial. Pursuant to Article 267 of the Turkish Code of Criminal Procedure, objections to court decisions are available only in cases expressly provided for by law. Accordingly, with respect to Article 133, there is no broad and independent avenue of objection against interlocutory decisions during the prosecution phase comparable to that available during the investigation phase. Under Article 272/2 of the Turkish Code of Criminal Procedure, interlocutory decisions for which no separate legal remedy is provided may be brought before the appellate court for review together with the final judgment. For this reason, the primary safeguard during the prosecution phase is to make regular and well-substantiated applications to the trial court for the lifting of the measure or the narrowing of its scope, based on concrete and specific grounds.
5. Legal Remedies against the TMSF’s Trusteeship Acts and Decisions
The trusteeship measure itself must be distinguished from the specific decisions and acts taken by the TMSF in its capacity as trustee. The appointment of a trustee to a company pursuant to Article 133 of the Turkish Code of Criminal Procedure, as well as the continued application of the measure, falls within the scope of criminal jurisdiction. By contrast, Provisional Article 2/3 of Law No. 7145 expressly provides that actions brought against decisions and acts taken by the TMSF in the performance of its trusteeship duties shall be heard by the administrative courts located in the jurisdiction where the TMSF has its headquarters.
This distinction is particularly important in cases involving the sale of company assets, liquidation, the establishment of an economic unity, or similar actions taken by the TMSF Board. An application by a company shareholder to the Criminal Judgeship of Peace seeking the “removal of the trustee” constitutes a different dispute from a challenge to the legality of a TMSF decision ordering the sale or liquidation of the company. Since bringing an action before the wrong branch of the judiciary may result in significant risks of loss of time and rights, the nature of the specific act or decision must be properly classified before initiating legal proceedings.
Court of Jurisdictional Disputes, Case No. 2026/212, Decision No. 2026/269, dated 4 May 2026
In its 2026 decision, the Court of Jurisdictional Disputes emphasized that the decision of the TMSF Board concerning the sale of an economic unity constitutes a unilateral administrative act based on the exercise of public authority and concluded that disputes arising therefrom must be adjudicated by the administrative courts. The current wording of Provisional Article 2/3 likewise expressly establishes this distinction between the applicable branches of the judiciary at the statutory level.
6. Constitutional Review in Terms of the Right to Property and the Principle of Proportionality
Shares in a company constitute “property” within the meaning of Article 35 of the Constitution. The transfer of a company’s management to a trustee through the exercise of public authority constitutes an interference with the right to property, as it restricts the shareholder’s ability to exercise the rights of management and disposition arising from share ownership. The Constitutional Court examines such interferences in light of the criteria of legality, legitimate aim, and proportionality. In leading individual application judgments directly concerning the implementation of Article 133 of the Turkish Code of Criminal Procedure and the TMSF trusteeship regime, the Court has not found a violation of the right to property based on the specific circumstances of those cases. However, these judgments do not mean that the measure is automatically proportionate in every case.
Constitutional Court, Hamdi Akın İpek, Application No. 2015/17763, dated 24 May 2018.
In the Hamdi Akın İpek judgment, the Constitutional Court assessed, taken together, whether the strong grounds for suspicion were supported by concrete evidence, such as expert and MASAK reports; whether the measure pursued the aims of combating crime and securing potential confiscation; whether reasons had been provided as to why a supervisory trustee was deemed insufficient; and whether the applicant had an effective opportunity to challenge the measure. On this basis, the Court concluded that there had been no violation of the right to property. The judgment is also significant when read conversely: failure to substantiate the strong grounds for suspicion, failure to explain why a less intrusive measure would be insufficient, or the de facto elimination of an effective means of judicial review may strengthen the case for a finding that the measure is disproportionate.
Constitutional Court, Tahsin Çakır, Application No. 2019/24644, dated 11 July 2023.
Constitutional Court General Assembly, Ö.K., Application No. 2018/27526, dated 14 September 2023.
In the Tahsin Çakır and Ö.K. applications, the Constitutional Court likewise recognized that shares in a company fall within the scope of the right to property and concluded that, in the circumstances of the respective cases, the trusteeship and seizure measures did not give rise to a violation. In the more recent Betül Özbey Bayındır judgment, the prolonged duration of the trusteeship measure was examined separately. The Court assessed the complexity of the investigation, the specific circumstances of the case, and the availability of judicial review mechanisms collectively, and declined to find a violation solely on the basis of the length of the measure.
Constitutional Court General Assembly, Betül Özbey Bayındır, Application No. 2019/42188, dated 31 July 2025.
By contrast, the Constitutional Court’s approach in abstract constitutional review establishes an important limitation with respect to the TMSF’s broad powers in the management of companies. In reviewing the provision under Article 19 of the former Law No. 6758, which allowed the TMSF to exercise the powers of a company’s general assembly without being subject to the provisions of the Turkish Commercial Code, the Court emphasized that company shares constitute property and that shareholders possess rights to participate in the general assembly. The Court concluded that, because the manner in which such powers were to be exercised, together with the applicable safeguards and avenues of judicial review, had not been sufficiently defined, the restriction imposed on the right to property failed to satisfy the requirement of legality. Accordingly, the Court found the provision contrary to Articles 13 and 35 of the Constitution.
Constitutional Court, Case No. 2022/91, Decision No. 2025/133, dated 17 June 2025.
This annulment decision does not directly amount to the annulment of Provisional Article 2 added to Law No. 7145 in 2025; rather, the decision concerned a separate provision of the earlier Law No. 6758. Nevertheless, it constitutes a strong constitutional benchmark demonstrating that, when broad powers of the TMSF of a similar nature are exercised, statutory limitations, procedural safeguards, the right to property, and effective judicial review cannot be disregarded.
7. Compensation and Financial Consequences Following the Measure
Article 133 of the Turkish Code of Criminal Procedure expressly provides for two distinct financial consequences. First, in the event of a decision of non-prosecution or an acquittal, the Treasury shall reimburse, together with statutory interest, the entire amount paid from the company’s funds as the trustee’s remuneration. Second, claims for compensation arising from acts and transactions carried out by the trustee in connection with the performance of his or her duties shall be brought against the State pursuant to Articles 142 to 144 of the Turkish Code of Criminal Procedure. The State may, in turn, seek recourse within one year against a trustee who has abused his or her duties in respect of the compensation paid.
With regard to losses arising from the unlawfulness of the measure from the outset, its continuation after the conditions justifying it have ceased to exist, or the failure to take the necessary measures to preserve the company’s assets, the compensation provisions of the Turkish Code of Criminal Procedure concerning protective measures should also be assessed in light of the circumstances of the specific case. In particular, it is essential to establish the causal link through documentary evidence in respect of items of loss such as a decrease in the company’s value, financing costs, contractual losses, and damage to commercial reputation.
8. How Should an Application for the Removal of a Trustee Be Structured in Practice?
A successful application for the lifting or narrowing of a trusteeship measure should not be framed as a general defence submission addressing the allegations in the criminal case; rather, it should be structured as a technical application directly challenging the current requirements for maintaining the protective measure. The initial trusteeship order, any previous objections filed against that order, the current stage of the investigation, the existing expert and MASAK reports, and the company’s commercial records, banking transactions, and contracts demonstrating its actual business activities should be examined together. Particular emphasis should be placed on new evidence that disproves the allegation that the company’s activities were used as an instrument for committing the offence or demonstrates that such a connection no longer exists.
Ayrıca tam yönetim yetkisinin TMSF’de kalmasının güncel olarak neden gerekli olmadığı somutlaştırılmalı; çalışan sayısı, devam eden projeler, kredi ilişkileri, lisanslar, tedarik zinciri, müşteri sözleşmeleri ve şirket değerine ilişkin verilerle tedbirin şirkete ve üçüncü kişilere yüklediği külfet gösterilmelidir. Tam kaldırmanın mümkün görülmediği ihtimal için, yönetim yetkisinin daraltılması veya yalnızca belirli işlemlerin kayyım onayına bağlandığı daha hafif modele geçilmesi alternatif talep olarak düşünülebilir.
In cases involving a TMSF trusteeship, it is also necessary to proceed on the basis of two distinct legal tracks. While an application before the criminal courts challenges the legal basis for, and the continued application of, the trusteeship measure, a separate administrative judicial remedy may arise under Provisional Article 2/3 where a sale, liquidation, or other trusteeship-related act carried out by the TMSF is independently unlawful. Assuming that a claim for the annulment of an administrative act and an application for the lifting of the trusteeship measure are subject to the same legal grounds and the jurisdiction of the same authority constitutes one of the most serious procedural errors in this area.
9. Key Conclusions in Light of Judicial Decisions
The decision of the 16th Criminal Chamber of the Court of Cassation dated 31 December 2018 demonstrates that, following a decision of non-prosecution, the Criminal Judgeship of Peace that imposed the trusteeship measure must issue an affirmative decision expressly terminating the measure. The Constitutional Court’s judgments in Hamdi Akın İpek, Tahsin Çakır, Ö.K., and Betül Özbey Bayındır, while recognizing the trusteeship measure as an interference with the right to property, establish that the existence of concrete evidence, a legitimate aim, necessity, proportionality, and effective judicial review must be assessed cumulatively. The Constitutional Court’s judgment in Case No. 2022/91 and Decision No. 2025/133 is also significant in demonstrating that the very broad powers granted to the TMSF in relation to company management cannot be exercised independently of statutory limitations and procedural safeguards.
Finally, following the 2025 amendment, the administrative judicial remedy against trusteeship-related acts and decisions of the TMSF has been expressly established by law. The decision of the Court of Jurisdictional Disputes dated 4 May 2026 further confirmed the approach that the administrative courts have jurisdiction over TMSF Board acts based on the exercise of public authority, such as decisions concerning the sale of assets. This framework makes it essential, in current practice, to draw a clear distinction, in terms of the applicable judicial remedy, between the “criminal procedural measure” itself and the “TMSF act or decision.”
10. Conclusion
The appointment of a trustee to the management of a company pursuant to Article 133 of the Turkish Code of Criminal Procedure constitutes a temporary protective measure that entails a significant interference with the company’s ownership and management structure. The lawfulness of the measure must be assessed not only as of the date of the initial decision, but at every stage throughout its duration, with regard to the requirements of strong grounds for suspicion, a connection with the company’s activities, the existence of a listed offence, necessity for the establishment of the material truth, and proportionality. Where the TMSF is appointed as trustee, the specific framework governing the offences and powers set forth in Provisional Article 2 of Law No. 7145 must also be taken into consideration.
From the perspective of the company and its shareholders, the appropriate strategy is to seek the lifting or narrowing of the measure from the Criminal Judgeship of Peace that issued the trusteeship order during the investigation phase, relying on concrete and up-to-date evidence; to ensure that the applicable two-week time limit for filing an objection is not missed in the event of a rejection; and, where the TMSF takes independent decisions or actions within the scope of its trusteeship duties, to separately consider pursuing the administrative judicial remedy. In particular, a decision of non-prosecution, a change in the legal characterization of the offence, the completion of the collection of evidence, a weakening of the connection between the company’s activities and the alleged offence, and the point at which full managerial intervention becomes disproportionate are among the principal legal circumstances that may be placed at the center of an application for the lifting of the measure.
11. References
Abdurrahman Burak Karahan, Appointment of a Trustee for Company Management (Article 133 of the Turkish Code of Criminal Procedure), Istanbul University, Institute of Social Sciences, Department of Public Law, Master’s Thesis, 2020.
Mustafa Uğur Demiral, Appointment of a Trustee for Company Management (Article 133 of the Turkish Code of Criminal Procedure), Dokuz Eylül University, Institute of Social Sciences, Department of Public Law, Master’s Thesis, 2020.
Mehmet Saydam, “An Evaluation of the Court of Cassation’s Decision on the Lifting of the Decision to Appoint a Trustee for Company Management Pursuant to Article 133 of the Turkish Code of Criminal Procedure,” Sakarya University Faculty of Law Review, Vol. 11, No. 1, 2023, pp. 445–468, DOI: 10.56701/shd.1262549.
Turkish Code of Criminal Procedure (Law No. 5271), Articles 133, 267, 268 and 272; Law No. 7145, Provisional Article 2; Law No. 7539, Article 7; Banking Law No. 5411.
16th Criminal Chamber of the Court of Cassation, Case No. 2018/5333, Decision No. 2018/5602, dated 31 December 2018; Constitutional Court, Hamdi Akın İpek, Application No. 2015/17763, dated 24 May 2018; Constitutional Court, Tahsin Çakır, Application No. 2019/24644, dated 11 July 2023; Constitutional Court General Assembly, Ö.K., Application No. 2018/27526, dated 14 September 2023; Constitutional Court General Assembly, Betül Özbey Bayındır, Application No. 2019/42188, dated 31 July 2025; Constitutional Court, Case No. 2022/91, Decision No. 2025/133, dated 17 June 2025; Court of Jurisdictional Disputes, Case No. 2026/212, Decision No. 2026/269, dated 4 May 2026.
Author/Attorney-at-Law Cem GONCELİ
