The cryptocurrency exchange, a platform whose star is shining so fast, has not yet taken its place even in the legal regulations of many countries due to its new formation. However, despite this; the cryptocurrency exchange has had an undeniable trading volume all over the world in a short period of time. With such a rapid increase in the volume of transactions, the need for legal security has become more and more felt and demanded by individual investors. Because many issues such as fraud allegations, the increase in consumer-based complaints, whether digital assets will be considered as asset value, whether they are preferred as a payment method, and the effect of these issues on the agenda of this issue in the spread of these issues cannot be denied.
In our country, more concrete steps should be taken as soon as possible in the context of the legalisation process with the motive of adapting to the changing world and being accepted globally, preventing risks, legalising cryptocurrencies and protecting investors. Increased regulation in this area means creating a more secure platform with legal protection for individual investors. This is because there is no legal protection and assurance in our legislation in this field.
The disputes that we frequently encounter are tried to be resolved by other provisions in the legislation due to the existing gaps in the law. This approach, as you may appreciate, does not provide full protection to individual investors. For this reason, it is now a necessity to create a solid legal basis for the cryptocurrency market.
There is no legal article in the Turkish Legal Legislation stating that there is currently a prohibition on the use of Cryptocurrencies. Therefore, the 38th Pursuant to the principle of legality in offence and punishment set out in the article, it is out of the question to punish acts that have not been criminalised and sanctioned.
Thus, let us clearly answer a frequently asked question that cryptocurrency is legal according to our legislation. However, as it is known, cryptocurrencies; tax evasion, money laundering, fraud offences, terrorist financing, etc. are also used in crimes such as theft. As soon as it is used for this purpose, it will, as you appreciate, have lost its legality.
In the statement made by the Banking Regulation and Supervision Agency (BRSA) on 25 November 2013, it was stated that Bitcoin is not within the scope of the “Law on Payment and Securities Settlement Systems, Payment Services and Electronic Money Institutions” numbered 6493 in terms of its current structure and functioning. It was also explained that Bitcoin is not considered as electronic money and therefore surveillance and supervision is not possible. In the statement, it was also stated that; the identity of the parties in the transactions carried out in the Bitcoin system is unknown, the Bitcoin system may be a suitable environment for illegal activities, the market value of Bitcoin is extremely volatile, digital wallets can be stolen, lost or used improperly without the knowledge of their owners, and since the transactions are irreversible, they are open to risks arising from operational errors or abuse by malicious sellers.
In the General Letter sent by the Capital Markets Board (CMB) to the institutions on 27 November 2017, it was reported that “taking into account that there is no regulation or definition of virtual currencies in Turkey and that virtual currencies are not among the elements that may constitute the basis for derivative instruments within the scope of the Capital Markets Law, it has been decided to notify customers that spot or derivative transactions based on virtual currencies should not be carried out at this stage.”
Published in the Official Gazette dated 16 April 2021, the “Regulation on the Non-Use of Crypto Assets in Payments” is the first legal text to directly regulate this area. Pursuant to the Regulation
In the global world perspective, many countries prefer to ban cryptocurrencies by choosing the easy method as a result of the difficulty of controllability of cryptocurrencies. Some national legal systems, on the other hand, recognise a graduated freedom. However, it is obvious that these approaches will not actually provide any protection; they will only increase illegal trade and encourage fraudulent activities. That is why it is only possible to combat this issue with emancipatory regulations. This is because the regulations to be introduced, while reducing risks, should not block the way for technological innovation and development.
The International Monetary Fund published a report at the World Economic Forum in 2016 entitled “Virtual Currencies and Beyond: Initial Assessments” report is enlightening in this respect, which made comprehensive and very valuable assessments on virtual currencies, including cryptocurrencies.
The report proposes the following principles for the legal arrangements to be made:
Since cryptocurrency law is a phenomenon brought to light by technological development, we would like to point out that it should come up with a regulation that can be most easily adapted and applicable to technological developments.