Avukatlık, Arabuluculuk, Müşavirlik
“It is not all about making laws. On the contrary, everything is about applying and enforcing those laws. The one who applies and enforces is forever greater than the one who decides”.
– Mustafa Kemal Atatürk
The founder of our Republic, the great leader Mustafa Kemal ATATÜRK opened the Ankara Bar Association on April 5, 1923 and entrusted justice to Turkish lawyers. Happy April 5th Lawyers’ Day.
European Court of Human Rights, Yüksel Yalçınkaya v. Turkey – The European Court of Human Rights, which examined the use of Bylock application, lack of effective defense regarding Bylock evidence, violation of Article 7 of the Convention (No punishment without law), violation of Article 6 § 1 of the Convention (Right to a fair trial), announced its decision on 26.09.2023. We share the summary of the judgment below. Read more
The unconstitutional phrase of the Attorneyship Law was annulled – Published in today’s Official Gazette, the Constitutional Court’s decision dated 22/6/2023 and numbered E: 2022/100, K: 2023/114 (1), the phrase “…forty percent shall be distributed equally among the bar associations in that province, and the remainder…” added to the fourth paragraph of Article 180 of the Attorneyship Law No. 1136 was annulled on the grounds that it is unconstitutional. Read more
On August 29, 2023, the U.S. Court of Appeals issued a ruling on Grayscale Investment LLC (Grayscale) and the Securities and Exchange Commission (SEC) in the proceedings that began on March 7, 2023. This decision was covered in the world press with the main idea of “Grayscale won the case, green light for Bitcoin ETF”. Grayscale and its executives also posted the same content on their social media accounts. However, either no one (journalists and even bitcoiners) consciously asked what the ruling actually said, or there was a serious lack of awareness. Read more
As of August 25, 2023, the European Commission requested 19 major online platforms and search engines to comply with the European Union regulations (Digital Services Act – DSA) and to take the necessary initiatives to ensure compliance with the relevant regulation.
This legal regulation was actually discussed in 2022 and approved by the European Parliament on October 19, 2022 and became effective on November 01, 2022. However, the regulation started to affect large companies such as online platforms and search engines as of May 02, 2023. Read more
*This article was prepared as of May 2021 and revised on 25.04.2022. There has been no change in legal regulations as of the date of publication.
Regulation consisting of 6 articles
“…determining the procedures and principles regarding the non-use of crypto-assets in payments, the non-use of crypto-assets directly or indirectly in the provision of payment services and the issuance of electronic money, and the non-intermediation of payment and electronic money institutions in platforms offering trading, custody, transfer or issuance services related to crypto-assets or fund transfers from these platforms…”
for the purpose of the Regulation.
Article 3 of the Regulation
“For the purposes of this Regulation, a cryptoasset is an intangible asset that is created virtually using distributed ledger technology or a similar technology and distributed over digital networks, but is not characterized as fiat money, dematerialized money, electronic money, payment instrument, security or other capital market instrument.
(2) Crypto assets cannot be used directly or indirectly in payments.
(3) Services cannot be provided for the direct or indirect use of crypto assets in payments.”
Article 4 of the Regulation
“Payment service providers cannot develop business models in a way that crypto-assets will be used directly or indirectly in the provision of payment services and the issuance of electronic money, and cannot offer any services related to such business models.
(2) Payment and electronic money institutions may not act as an intermediary for platforms offering trading, custody, transfer or issuance services related to crypto assets or fund transfers to be made from these platforms.”
provision is included.
This regulation has 52 articles,
“…for the implementation of the Law on Prevention of Laundering Proceeds of Crime dated 11/10/2006 and numbered 5549; to regulate the procedures and principles regarding obligors, obligations, supervision of compliance with obligations, disclosure to the customs administration and other measures in order to prevent laundering proceeds of crime and terrorist financing…”
is the purpose of this Regulation.
With the amendment made to Article 4 of the Regulation
“…In the application of the Law, the obliged are the following persons and their branches, agencies, representatives and commercial agents and similar affiliated units…”
“Crypto asset service providers” are also included.
Communiqué consisting of 10 articles
“…Knowing the real names behind the incomes/wealths is of great importance in terms of combating tax evasion. The Global Forum on Transparency and Exchange of Information for Tax Purposes of the Organization for Economic Cooperation and Development (Global Forum), of which Turkey is a member, carries out activities to combat tax evasion. In this context, as part of its activities, the Global Forum has established international minimum standards on transparency and exchange of information that countries must comply with, and one of the elements of the standard is to know the real beneficiary of legal entities and non-legal entities. This issue is also reflected in the recommendations of the Financial Action Task Force for the prevention of money laundering and financing of terrorism. In this context, in order to determine the real beneficiary information of legal entities and unincorporated organizations in an up-to-date, complete and accurate manner, the scope of taxpayers who are obliged to notify regarding the determination and notification of the real beneficiary, the form of notification, the period to be notified, the time of notification, the procedure for sending the notification and other procedures and principles regarding the application…”
for the purpose of the Communiqué.
With the amendment made in Article 4 of the Communiqué
“…must notify the Revenue Administration of the real beneficiary information of the transactions carried out by its customers when requested by the Revenue Administration…”
“Crypto asset service providers” are also included in the list of organizations.
Both the RA Communiqué and the MASAK Regulation do not contain direct provisions on the use of cryptocurrency. Rather, these two regulations contain the obligations of service providers regarding the use of cryptocurrency. Therefore, an examination will be made as to whether the regulation in the CBRT Regulation is related to interpersonal cryptocurrency transfers.
The CBRT was established by Law No. 1211. Article 1 of the Law stipulates that the CBRT “…shall have the exclusive privilege of issuing banknotes in Turkey and shall have the duties and powers set forth in this Law A bank has been established as a joint stock company under the title “Central Bank of the Republic of Turkey”…”.
Article 4 of the same law regulates the main purpose, duties and powers of the Bank. Accordingly, “…The main objective of the Bank is to ensure price stability. The Bank directly determines the monetary policy to be implemented and the monetary policy instruments to be used in order to achieve price stability…”.
For this purpose
– Conducting open market operations,
– Determining the exchange rate regime,
– To determine the procedures and principles regarding required reserves and general reserve deposits on the basis of on-balance sheet or off-balance sheet items of banks and other financial institutions deemed appropriate by the Bank,
– Perform rediscount and advance transactions,
– Manage the country’s gold and foreign exchange reserves,
– To regulate the volume and circulation of the Turkish Lira,
– Stabilizing measures in the financial system and regulatory measures related to money and foreign exchange markets
to get it,
– Monitoring financial markets,
– It operates to determine the maturities and types of deposits in banks and the maturities of participation accounts in private financial institutions.
The powers granted to the bank to carry out this activity are briefly…
– The Bank has the exclusive privilege of issuing banknotes in Turkey.
– The Bank, together with the Government, determines the inflation target and sets monetary policy in line with it. The Bank shall have sole authority and responsibility for the implementation of monetary policy.
– In order to ensure price stability, the Bank is authorized to use the monetary policy instruments specified in this Law and to directly determine and implement other monetary policy instruments it deems appropriate.
– The Bank is authorized to make advances to the Savings Deposit Insurance Fund in extraordinary circumstances and in the event that the resources of the Savings Deposit Insurance Fund do not meet the need, according to the procedures and principles to be determined by the Bank.
– The Bank, as the final credit authority, shall carry out lending to banks.
– The Bank is authorized to request from banks the interest rates to be applied by banks in money lending transactions and deposit acceptance according to the procedures and principles to be determined by the Bank.
– The Bank is authorized to request necessary information and collect statistical data from banks and other financial institutions and the institutions and organizations in charge of regulating and supervising them in order to monitor financial markets. The Bank’s requests are met in real time and instantaneously. In order to meet these requests, the Bank may establish access systems to the information processing systems of institutions and organizations. All procedures and principles regarding the implementation shall be determined by the Bank.
In addition, the CBRT also has an advisory role before the government and provides opinions when necessary.
None of these provisions in Article 4 of the Law imposes on the CBRT the authority and/or duty to regulate the transfer of cryptocurrencies between individuals. However, Article 4 is a framework provision that sets out the general outlines of the systematics of the law, and it should be evaluated whether other articles of the law contain a regulation on this issue (or may be relevant to this issue).
Articles 36 et seq. of the Law titled “Duties and Powers of the Bank” contain more detailed regulations on the duties and powers of the CBRT. Accordingly – in summary – the CBRT
– Banknote and coin issuance
– Operations to maintain the stability of the Turkish currency and money/credit issues
– The Bank’s relations with the government, financial advisory, audit and public disclosure procedures
– It is authorized and authorized to request information from banks, real and legal persons about transactions that may affect their foreign exchange positions.
None of the above-mentioned regulations constitute an obstacle to the transfer of cryptocurrencies between individuals or the receipt of cryptocurrencies in exchange for services, as none of them is a regulation in this direction.
The purpose of the establishment of the CBRT and the duties and powers assigned to the CBRT do not include any duties and/or powers targeting cryptocurrency transfers between individuals – except for transactions related to foreign exchange positions.
It is known that the transfer of cryptocurrency is not a tax problem in terms of the Tax Procedure Law and its implementing regulations and RA communiqués. In the declaration-based taxation system, as long as the declaration and the reality coincide with each other, it is not possible for a dispute to arise in terms of tax law.
In terms of regulations on the prevention of financial crimes, it is also technically not possible for the transfer of cryptocurrency to cause a legal dispute. This is because, if there is an accusation of putting into circulation an income that constitutes the subject matter of a financial crime or that has been obtained from a crime, there must first be an investigation opened in this regard and the existence of a crime that has already been committed must be determined within the scope of the investigation. Questioning this situation at the moment when the cryptocurrency is transferred and even at the moment when the transferred cryptocurrency is later sold and converted into cash is completely contrary to the criminal law technique and will lead to an unlawfulness that is explained as “reaching evidence from the suspect” and is not accepted by any judicial system. In our country, investigations related to financial crimes – except in cases of denunciation and red-handedness – are mostly based on undeclared income. However, as we have explained above, there is no legal obstacle to declaration in terms of the Tax Procedure Law and related regulations.
The CBRT Regulation states that “Crypto assets cannot be used directly or indirectly in payments.” The phrase “cryptoassets cannot be used directly or indirectly in payments” is a very general statement and exceeds the CBRT’s duties and powers granted to it by law. When considered together with the above-mentioned provisions on the duties and powers of the CBRT (and even including the RA Communiqué and MASAK Regulation), this provision in the Regulation
– Banks,
– Organizations providing intermediary services in payments,
– Crypto asset service providers,
– Electronic money issuers,
but does not cover real persons or legal entities other than those mentioned above. Moreover, there is no provision in the regulation on what kind of sanctions will be imposed in case of violation of this regulation.
According to Article 27 of the Code of Obligations, “Contracts that are contrary to the mandatory provisions of the law, morality, public order, personal rights or whose subject matter is impossible are absolutely null and void.”
To give an example of the provision in Article 27 of the Code of Obligations, if A prepares, signs and gives a contract to B as “if you swear at C, I will pay you x price” and A does not make the payment when B fulfills exactly what is written in the contract, B CANNOT file a debt lawsuit against A based on the contract in his hand. Because the performance subject to the contract is an illegal performance.
Since there is no other regulation other than the above-mentioned regulations regarding the transfer of cryptocurrencies and cryptocurrencies (even if they express a value equivalent to TL) have not yet been qualified as an “asset” in the legal sense by the legislator, the issues of whether a contract involving the transfer of cryptocurrencies promised to be received in return for a work performed will be valid and whether rights can be claimed on the basis of this contract may be stuck in the interpretation of Article 27 of the CO due to the legal gap.
When we evaluate the above-mentioned regulation of the CBRT together with the RA or MASAK regulations and even the CBRT Law, it is understood that it cannot be interpreted as prohibiting the provision/receipt of work/services related to the transfer of cryptocurrencies between individuals, and when we evaluate it together with Article 27 of the Code of Civil Procedure, it is possible to interpret that such a contract is not protected by the legislator at this stage, but it is not prohibited.
This article and the information contained in it is not a binding legal opinion, but an opinion prepared in order to reveal the scope and consequences of legal regulations. Last revised on 25.04.2022. It may be used by citation.
(1) The definition of “crypto” is used as in the text of the law. bitcoin ≠ crypto
On July 13, 2023, a decision was rendered by the New York Court in the case filed by the US Securities and Exchange Commission (hereinafter referred to as SEC) against Ripple Labs Inc (hereinafter referred to as ripple). Although the decision has been described as a “victory for ripple” on social media and cryptocurrency markets, when we start reading the text of the decision, we can see that there is actually no “victory” even in the first paragraphs. In this article, we aim to analyze the text of the decision in headings and share our opinion without going too deep into the American legal system, but in order to be understandable. Read more
The Regulation on Manipulation and Misleading Transactions in Financial Markets was published in the Official Gazette. This news spread in a very short time with an opinion that “commenting on foreign exchange is now forbidden” especially on social media. In paragraph 1 of article 4 of the Regulation titled “Manipulation and misleading transactions and practices in financial markets”;
The following actions performed by banks are considered as manipulation and misleading transactions and practices in financial markets covered by Article 76 / A of the Law:
It is said and in the subparagraph d of the paragraph;
False or misleading information or rumors that may or may provide false or misleading impressions regarding the supply, demand, or exchange rate and interest-price included of a financial instrument, or which may or may ensure that the price is kept at an abnormal or artificial level, spread through the mediator or other means.
with subparagraph f in;
Communicating false or misleading information about a reference value, providing false or misleading inputs, or taking any manipulating behavior to calculate a reference value, even though he or she knows or must know that it is false or misleading.
has been identified as a manipulation movement.
In order to understand what is meant by the aforementioned manipulation, it is necessary to explain what the “wrong” or “misleading” information and / or rumors are in legal markets and their legal counterparts. The Capital Market Law No. 6362 (SPKn) is a law introduced to regulate and control the capital market to ensure the functioning and development of the capital market in a reliable, transparent, effective, stable, fair and competitive environment, and to protect the rights and interests of investors. In article 107 of this law titled “Market Fraud”
(1) Those who buy or sell, give orders, cancel orders, change orders or perform account transactions in order to give a false or misleading impression regarding the prices, price changes, supply and demands of capital market instruments, are imprisoned from three to five years and five thousand days They are punished with a judicial fine up to ten thousand days. However, the amount of the judicial fine to be imposed for this crime cannot be less than the benefit obtained by the committing the crime.
(2) Those who provide lies, false or misleading information, make rumors, inform, comment or report or spread them and thus benefit from three to five years in order to influence the prices, values or investors’ decisions of capital market instruments. They are punished with a judicial fine up to a thousand days.
(3) The person who commits the crime defined in the first paragraph regrets, not less than five hundred thousand Turkish Liras, twice as much money as the Treasury;
a) If he pays before the investigation begins, he will not be punished.
b) If he pays during the investigation phase, the penalty to be imposed is reduced by half.
c) If he pays until the judgment is made during the prosecution phase, the penalty to be imposed is reduced by one third.
provision is included. According to this provision (paragraph 2, which has to do with the regulation) “… issuing false, misleading or misleading information, making rumors, informing, commenting or reporting or publishing them in order to affect the prices, values or investors’ decisions of the capital market instruments. and in this way, it will be said that prisoners and fines will be imposed on the beneficiaries.
The SPKn, which is a special law, is “both punitive” and is in conformity with the requirements of the era regarding these criminal acts. However, the conditions that would require the implementation of this provision
providing benefits by doing these.
Hierarchy, word meaning, authorities, ranks etc. It is a term which is the classification made by taking into account the importance order, the system of subordinate and superiority. Law, too, is a mixed-up order group of diverse disciplines and systems, and this order requires the existence of a hierarchy – the order of significance – between legal rules (norms). Putting aside its history or views on this matter, our Constitution is at the top of the hierarchy between norms in our country today. It is at the top, as no other rule can be against our Constitution. There are Laws and Decree Laws under both of our Constitution. The relationship between these two can be summarized briefly as follows: A restriction cannot be imposed or lifted by the Law or Decree Law on a fundamental right regulated by the Constitution.
The Code comes under the Law and Decree. According to our Constitution, the subject of the regulations is “to show the implementation of the law” or to specify “the works ordered by law”. By their nature, the regulations must comply with the laws and the Decree Laws.
The Regulation comes under the Regulations. According to our Constitution, the President, ministries and public legal entities may issue regulations to ensure that the laws and Presidential decrees concerning their area of duty are enforced. The purpose of the regulations is to ensure the enforcement of laws and regulations, and again, they cannot naturally be against the laws, regulations and the Constitution.
The relationship between the Law or the Decree Law and the Regulation and the Regulation is similar to the relationship between the Constitution and the Law / Decree Law. A regulation or a restriction that is not included in the law or KHK cannot be brought by statutes or regulations!
In fact, the issue to be discussed is not whether it is forbidden to comment on the currency; for it is evident that there is no such a ban – or rather, the ordinary citizen has no obligation to do so. As we mentioned above, the purpose of introducing this regulation, which was issued for the implementation of a law, is
The purpose of this Regulation is to determine manipulation and misleading transactions and practices in financial markets, which fall within the scope of article 76 / A of the Banking Law No. 5411 dated 19/10/2005.
It is stated as. The provision in Article 76 / A of the Banking Law
By banks covered by this Law; Performing transactions and practices for the purpose of creating price including artificial supply, demand or exchange rate in financial markets through transactions listed in Article 4, dissemination of untrue or misleading information through different means, including the internet environment, or directing the savers in an unrealistic or misleading way or providing these objectives. Conducting similar transactions and practices towards the financial markets is considered as manipulation and misleading transactions. The transactions and practices within the scope of this article are determined by the Board and published in the Official Gazette.
It shaped. He can easily say that, because of this regulation, ordinary citizens are not prohibited from commenting on foreign exchange on social media! Because the regulation concerns a regulation related to Banking.
BUT!
The reason why we have included the provision with CMB above is actually the issue that every citizen should pay attention to by this regulation. if it results in a criminal sanction. In short, the news and comments we see on social media should not be investigated and shared without being sure.
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