According to a news report at the beginning of the month, half of the people in Türkiye hold cryptocurrencies! If this information is accurate, it is a significant number. However, cryptocurrencies’ legal status remains unclear; we only know they are not goods, money, bills of exchange, or securities. Let’s see if recent years’ regulations and court judgments can illuminate this uncertainty.

“One Cannot Use Cryptocurrencies in Payments”

The only special regulation in Turkish law regarding cryptocurrencies is the Regulation on the Prohibition of Using Crypto Assets in Payments. This regulation stipulates that:

• One cannot use crypto assets directly or indirectly in payments;
• One cannot provide services for the direct or indirect use of crypto assets in payments;
• Payment services providers (banks, electronic money institutions, payment institutions, and Posta ve Telgraf Teşkilatı A.Ş. (“PTT”)) cannot develop business models in which crypto assets are used directly or indirectly in providing payment services or issuing electronic money and cannot provide any services related to such business models;
• Payment institutions (licensed organizations) and electronic money institutions (licensed organizations, banks, and PTT) cannot mediate funds transfers from or to platforms that provide trading, custody, transfer, or issuance services for crypto assets.

First, this regulation’s constitutionality is debatable because it limits the freedom of contract, and it is impossible to make such a limitation by a regulation.

On the other hand, according to the law of obligations, one cannot pay monetary debts with crypto assets because they can pay such debts either in Turkish Lira (“TL”) or –in cases where the parties are free to enter contracts in foreign currencies– in foreign currency. However, crypto assets are neither TL nor foreign currency nor the money of any country.

As for the prohibition on payment services providers, the funds that these institutions can transact with are banknotes, coins, bank money, or electronic money, i.e., cash, bank deposits, or electronic money issued in return for these. However, crypto assets are neither in these categories.

Then, the primary purpose of this regulation must be that only banks and PTT provide financial services in crypto asset transactions on cryptocurrency exchanges. If so, this regulation is compatible with certain obligations imposed on crypto asset services providers within the scope of preventing money laundering and financing of terrorism and combating tax evasion.

However, suppose the purpose is that banks and PTT, among electronic money institutions, cannot provide financial services in crypto asset transactions on cryptocurrency exchanges. In that case, this will not contribute to the fight against financial crimes but will be detrimental, as the records kept by banks and PTT will not be available.

At the moment, different institutions have different practices in this regard.

Let’s look at court judgments.

First, we must point out that these judgments are not binding on other courts, and different courts may decide differently in other cases.

“Cryptocurrency Traders Are Not Consumers, They Are Investors”

Among the judgments we have reached, no civil case has gone through the Supreme Court stage; however, some have gone through the appeal stage. In these cases, the parties mostly had procedural discussions and raised the competent court issue accordingly.

In this context, there is a finding that the courts largely agree that transacting on cryptocurrency exchanges is an investment transaction, so the persons performing these transactions cannot be considered consumers.

First, as we stated in our article in 2021, we believe that trading on cryptocurrency exchanges is an e-commerce transaction and that we should apply e-commerce legislation to these transactions.

If we review the judgments in question with this reserve:

A consumer is a person who acts for non-commercial or non-professional purposes. If consumers purchase a good or service for last use or consumption without seeking any profit or return, they act for non-commercial or non-professional purposes.

However, persons who trade on cryptocurrency exchanges do these transactions to make a profit or return. Thus, it does not seem possible to consider crypto asset trading as a consumer transaction. However, there is a subtle point here. These persons receive various services from cryptocurrency exchanges, such as account opening or custody services. Considering these services as consumer transactions is possible since all contracts and legal transactions in the goods or services markets can be consumer transactions. Therefore, we need a case-by-case analysis for this issue.

On the other hand, it is essential to remember that cryptocurrency trading or initial offerings are not investments within the meaning of capital markets law and cannot benefit from protection under this legislation.

“Cryptocurrencies Are Included in One’s Assets”

The judgment that led us to this conclusion is related to inheritance law. The court, mentioning the concept of digital assets for the first time, defined digital assets as other assets that are stored electronically and exist only in digital form, such as videos, photos, e-mails, personal social media accounts, and in this context, ruled that the court of first instance should have included the deceased’s e-mail account and related social media accounts, digital wallet accounts and similar items of monetary value in the deceased’s digital estate.

Thus, although cryptocurrencies are not legally goods, money, bills of exchange, or securities, they have been accepted as an asset right. However, it can be challenging to determine whether a person holds cryptocurrency, has an account in any cryptocurrency exchange, has a digital wallet, and what their public and private key information is. For this reason, cryptocurrency holders may facilitate their heirs’ access to the cryptocurrencies they hold after their death by preparing a will.

On the other hand, accepting cryptocurrencies as an asset right is also crucial in liquidating the matrimonial assets regime that will be an issue during a divorce. If the spouses are subject to the statutory assets regime (participation in the acquired assets regime), they may have partition rights on the monetary value of their cryptocurrencies. Factors such as whether the spouses acquired cryptocurrencies before or after the marriage, with or without consideration, will affect the partition rights. However, it can be challenging to determine whether a person’s spouse holds cryptocurrency, has an account in any cryptocurrency exchange, has a digital wallet, or the like; this technology can also serve as a tool for spouses to hide assets from each other.

Cryptocurrency Holders Bear All the Risks

As a result, we can say that cryptocurrency holders still have limited rights, which are not firm and open to discussion. For this reason, cryptocurrency enthusiasts may prefer being cautious while choosing the cryptocurrency exchanges they will trade with, researching the exchanges’ shareholders and capital structures, staying away from exchanges that promise unusual returns, reading the contracts of these exchanges no matter how boring they are, keeping a copy of them, and not transacting with exchanges that do not present contracts!

Av. Müge Önal Başer, LL.M., LL.B.

References

1. Constitution of the Republic of Türkiye No. 2709 (Official Journal (OJ), 20 October 1982, No. 17844).
2. Turkish Civil Code No. 4721 (OJ, 08 December 2001, No. 24607).
3. Turkish Code of Obligations No. 6098 (OJ, 04 February 2011, No. 27836).
4. Capital Markets Law No. 6362 (OJ, 30 December 2012, No. 28513).
5. Law No. 6493 on Payment and Securities Reconciliation Systems, Payment Services and Electronic Money Institutions (OJ, 27 June 2013, No. 28690).
6. Law No. 6502 on Consumer Protection (OJ, 28 November 2013, No. 28835).
7. Law No. 6563 on Regulating Electronic Commerce (OJ, 05 November 2014, No. 29166).
8. Decree No. 32, dated 07 August 1989 No. 89/14391, on the Preservation of the Value of the Turkish Currency (OJ, 11 August 1989, No. 20249).
9. Regulation on the Prohibition of Using Crypto Assets in Payments (OJ, 16 April 2021, No. 31456).
10. Regulation No. 3941 on Amending the Regulation on Measures to Prevent Laundering the Proceeds of Crime and Financing of Terrorism (OJ, 01 May 2021, No. 31471).
11. Communiqué No. 2008-32/34 Concerning the Decree No. 32 on the Preservation of the Value of the Turkish Currency (OJ, 28 February 2008, No. 26801).
12. Tax Procedure Law General Communiqué No: 529 (OJ, 13 July 2021, No. 31540).
13. Financial Crimes Investigation Board General Communiqué No: 21 (OJ, 17 November 2022, No. 32016).
14. Relevant Regional Court of Justice (“RCJ”) Judgments: Antalya RCJ 6th Civil Law Chamber (“CLC”), 13 November 2020, E. 2020/1149 K. 2020/905, https://www.lexpera.com.tr/ (last visited 16 December 2020); İstanbul RCJ 19th CLC, 21 December 2021, E. 2021/3166 K. 2021/2411; İzmir RCJ 17th CLC, 12 May 2022, E. 2022/727 K. 2022/864; İstanbul RCJ 3rd CLC, 21 March 2023, E. 2023/308 K. 2023/869; İstanbul RCJ 37th CLC, 22 March 2023, E. 2022/2128 K. 2023/826; Ankara RCJ 13th CLC, 22 June 2023, E. 2023/921 K. 2023/943, https://www.lexpera.com.tr/ (last visited 19 September 2023).
15. Özer, Işık: “Sermaye Piyasasında İşlem Yapan Yatırımcıların Tüketicinin Korunması Hakkında Kanun Kapsamında Korunup Korunamayacakları Sorunu Üzerine Bir İnceleme,” Banka ve Ticaret Hukuku Dergisi 2018, V. 34, I. 1, p. 37-92.
16. Narbay, Şafak / Akkuş, Muhammed: “Ticari İş Niteliğinin Belirlenmesi ve Ticari İş - Tüketici İşlemi Ayrımı,” Prof. Dr. Sabih Arkan’a Armağan, İstanbul 2019, p. 823-882.
17. Onal Baser, Muge: “Cryptocurrency Holders’ Rights Under Turkish Private Law: Do We Need New Laws or Regulations?,” Baku State University Law Review 2021, V. 7, I. 2, p. 146-167.
18. Turan Başara, Gamze: “Kripto Paralarla İlgili Miras Hukukuna Özgü Temel Meseleler,” İnönü Üniversitesi Hukuk Fakültesi Dergisi 2023, V. 14, I. 1, p. 15-30.
19. Kara Kılıçarslan, Seda: “Bitcoin Özelinde Kripto Paraların Edinilmiş Mallara Katılma Rejiminde Tasfiyesi Sorunu,” Kırıkkale Hukuk Mecmuası 2023, V. 3, I. 1, p. 1-27.
20. See also, Önal Başer, Müge: “Can Cryptocurrencies be ‘Paid in’ as Capital Contribution?,” December 2020, https://www.mugeonal.com/can-cryptocurrencies-be-paid-in-as-capital-contribution.
21. Hertig, Alyssa: “Half of the People in Turkey Now Own Crypto: Report,” 02 September 2023, https://decrypt.co/154724/republic-of-turkey-crypto-adoption-half-kucoin (last visited 19 September 2023).