What is the Legal Nature of Cryptocurrencies?

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The Legal Nature of Cryptocurrencies

Electronic money is defined under Law No. 6493 on Payment and Securities Settlement Systems, Payment Services and Electronic Money Institutions as a monetary value issued by an issuing institution in exchange for accepted funds, stored electronically, used to carry out various payment transactions, and accepted as a means of payment by natural and legal persons other than the electronic money issuing institution. Accordingly, electronic money is issued by legal entities authorized by the Central Bank of the Republic of Turkey. Therefore, it is stated that cryptocurrencies do not fall under the definition of electronic money. Indeed, the Banking Regulation and Supervision Agency (BRSA) stated that Bitcoin, known as a virtual currency that is not issued by any official or private institution and for which no guarantee is provided, is not considered electronic money under Law No. 6493 due to its current structure and operation, and therefore its supervision and control within the framework of the relevant law is not deemed possible. 

According to Article 3 of the Capital Market Law No. 6362, securities refer to shares, other share-like securities, and deposit certificates related to said shares, as well as debt instruments or debt instruments based on securitized assets and income, and deposit certificates related to said securities, excluding cash, checks, bills of exchange, and promissory notes. Therefore, cryptocurrencies cannot be defined as securities.

Turkish Civil Code No. 4721 does not provide any definition of property. However, in legal doctrine, tangible assets that can be controlled and are not personal are defined as property. It is argued that cryptocurrencies, because they operate in a digital environment and are not tangible, cannot be considered property.

In this context, it is important to note that the use of cryptocurrencies has recently become a system used in committing money laundering crimes such as tax evasion, drug trafficking, ransom, and online gambling. Despite this, there is no prohibitive regulation in the current legislation regarding the use of cryptocurrencies and/or payments made with cryptocurrencies. On the other hand, Article 282 of the Turkish Penal Code No. 5237 ("Laundering of Assets Derived from Crime") states that "a person who takes abroad assets derived from a crime punishable by imprisonment of six months or more, or who subjects them to various transactions with the aim of concealing their illegitimate source or creating the impression that they were obtained through legitimate means, shall be punished with imprisonment from three to seven years and a judicial fine of up to 20,000 days.". 

Considering the relevant provision, there is nothing to prevent the conversion of proceeds from crime into cryptocurrency from being considered as assets derived from crime.

On the other hand, it should be noted that, as is increasingly seen in practice, cryptocurrency trading platforms comply with legally compliant requests from judicial authorities, generally referred to as warrants, regarding users' debts or any type of lawsuits related to all types of cryptocurrencies and Turkish lira. In accordance with the law, they apply liens or precautionary measures to Turkish lira and all types of cryptocurrencies held in users' accounts based on official letters received requesting the application of liens or precautionary measures.

In addition to these explanations, it is crucial to consider whether a law regulating cryptocurrency trading platforms can be applied retroactively. First, it should be noted that three principles are important in terms of the temporal application of laws: "retroactivity, immediate application, and prospective application." The "Rule of Non-Retroactivity," an international legal principle, is already valid and in effect in our laws. 

Therefore, it is believed that in the event of a law regulating cryptocurrency trading platforms being enacted, transactions made through these platforms or any acquired rights related to Turkish lira or cryptocurrencies held on these platforms will not be affected in any way, and that no harm or adverse situation will be encountered in the future due to current lawful practices.

In conclusion, cryptocurrencies, and Bitcoin in particular, are currently considered independent currencies because they are not subject to any regulatory or supervisory body. This independence is viewed with concern by some investors, while others consider cryptocurrencies to be the greatest investment of the future. 

It is evident that, despite the lack of any legal regulation regarding cryptocurrencies and their inability to be integrated into existing legal concepts, steps are beginning to be taken, albeit slowly. We are witnessing the development of doctrinal thought and various practical advancements that will be beneficial in creating regulations. While central authorities are opting for methods of warning users and investors by drawing their attention to the risks rather than directly intervening in cryptocurrencies, and although there hasn't been much concrete progress in this newly developing process, there is no doubt that the regulations to be implemented will have significant impacts in areas such as banking, capital markets, tax law, inheritance law, property division, enforcement and bankruptcy law, and other fields. 

In summary: Cryptocurrencies are types of currencies created entirely in a digital environment using a technology called blockchain, and have no equivalent in the physical world. They are not tied to a central system or any national currency. Given the use and widespread adoption of cryptocurrencies, it is necessary to determine their legal nature and ensure transaction security by establishing a legal framework. However, neither in our country's law nor in the laws of foreign countries has a fully established legal framework for cryptocurrencies like Bitcoin.

In our legal system, cryptocurrencies like Bitcoin are not recognized as either money or electronic money. Therefore, they currently have no legal basis.

Cryptocurrencies need to be addressed individually. According to Blockchain Technology Expert Dr. Bora Erdamar, a working group has been established in Türkiye to ensure a proper classification of cryptocurrencies. While cryptocurrencies currently lack a legally defined category, a definition is necessary. Whether they should be considered commodities, securities, money, or a completely different category, the working group's decision will be crucial in ensuring full legal protection in the future.

How does cryptocurrency fraud occur?

Fraudulent activities are encountered in every corner of the virtual world. Cryptocurrency exchanges are also affected. Those who invest in various, newly established companies and exchange platforms have a high probability of losing their cryptocurrency investments. These scams generally take the form of fake mobile applications, email redirects, unreliable tweets, and application updates. 

The most common method scammers use to deceive cryptocurrency investors is through fake applications downloadable from Google Play and the Apple App Store. According to data reported by Bitcoin News, Thousands of people have already downloaded fake cryptocurrency apps. Even if the email looks identical to one from a legitimate cryptocurrency company, you should still exercise caution before investing your digital currency. Are the email, logo, and brand exactly the same? Can you verify that the email address is legitimately linked to the company? This verifiable process is one of the reasons why it's important to choose a company that employs real people. 

Bilindiği üzere, Kripto para borsasında Thodex ve VeBitcoin’in ardından, GoldexCoin’e de erişim sağlanamıyor. Aşağıda Birtakım Kripto Para Mağduriyetlerine Yer verilmiştir:

• Hello, I am complaining about Paribu's cryptocurrency application. They made purchases outside of my orders and caused me harm. I sent emails and called their support services but received no response. I am requesting support here regarding this matter. I would appreciate your help.
• Kripto paramı TL’ye çevirdim ama hesabıma düşmedi ve almak istediğim başka bir kripto aşırı yükseldi alamadım ve şu an zarardayım! Bu siteye bulaştığıma çok pişmanım B*** çok daha kaliteli idi ilgili kişilerin bu sorunu bir an önce çözmeleri lazım insanları mağdur etmenize hakkınız yok.
• İstanbul merkezli üç ilde sanal para dolandırıcılığı yaparak 12 milyon TL vurgun yaptıkları öne sürülen dokuz şüpheli yakalandı. Dolandırılanlar arasında bulunan Hindistan uyruklu Türk vatandaşı A.T , 3 milyon TL’lik sanal parasının buhar olduğunu söyledi. A.T ‘ nin ifadesi ise şöyle: “Two years ago, I researched buying virtual currency. I found this site. I bought 7.19 Bitcoin for 220,000 Turkish Lira. Then, when the price of virtual currency increased, I wanted to withdraw it. However, when I gave the transfer order, my virtual wallet was emptied. My mental state deteriorated after this incident.”
•  Transfer işlemlerinin yavaş olması ve hesap kapatma işleminin yapılamaması öne çıkan diğer şikayet konuları olurken verilere göre geçen yıl ile kıyaslandığında kripto para şikayetlerinin artış oranı yüzde 8 bin 619’lara kadar ulaştı.
•  I bought a certain amount of cryptocurrency from the app. However, even though there are no orders or restrictions on the cryptocurrency I bought, I can't sell it.”
• "None of the cryptocurrencies in my account are showing up, and I haven't been able to contact anyone in any way. I had a $10,000 investment. Nothing is visible, what could be the reason? This is the first time I've experienced such a problem on such a reliable site."”

What can I do if I've been scammed by cryptocurrency? 

Kripto paralarla  ilgili yaşanan mağduriyetlerde herhangi bir delil, e-posta adresi veya sosyal medya hesabı biliniyorsa bunları kullanarak şikayette bulunmak gerekmektedir.  Ancak bunun getireceği fayda elbette başvurduğunuz polis teşkilatının bilişim suçlarını takip etmede ne kadar yeterli olduğuna bağlı olarak değişecektir. Bu sebeple kripto alanındaki adımlarınızı enine boyuna düşünerek atmanız, sizin için en koruyucu önlem olacaktır. Konuya ilişkin hukuki danışmanlık için bizimle Contact page. 

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