With the development of technology, the change and transformation seen in every aspect of life creates new facts that need to be clarified in legal terms. Cryptocurrencies, as a digital asset designed with the function of being a medium of exchange and based on the encryption method, are one of the new phenomena that have entered our lives with the development of technology. Cryptocurrencies, which have many subtypes, first appeared with Bitcoin, which was released in 2009. The cryptocurrencies that emerged later are called altcoins.

The use of cryptocurrencies, which are virtual assets and an alternative to the money printing monopoly of states, as a medium of exchange, necessitates the determination of its legal nature. However, there is no clear regulation regarding the legal nature of cryptocurrencies in Turkish Law, and evaluations are made within the framework of existing provisions on this issue.

The main reason why there is no clear regulation regarding the legal nature of crypto assets in Turkish Law is that Turkey does not accept crypto assets as a medium of exchange in payments. The statement of the Central Bank of the Republic of Turkey on the subject is as follows:

‘Crypto assets are not subject to any regulation and control mechanism, they do not have a central addressee, their market values show extreme volatility, they can be used in illegal activities due to their anonymous structure, wallets can be stolen or used irregularly without the owners’ knowledge, and the transactions are irreversible for the relevant parties. It carries significant risks.

Recently, it has been observed that various initiatives have begun to emerge regarding the use of these assets in the field of payments. It is considered that the use of these assets in payments is likely to create irreparable grievances for the parties to the transaction due to the reasons mentioned above and that it contains elements that may cause a loss of trust in the methods and tools currently used in this field.

In this context, the “Regulation on the Non-Use of Crypto Assets in Payments” has been put into effect within the framework of the authorities included in the Central Bank of the Republic of Turkey Law No. 1211 and the Law No. 6493 on Payment and Securities Settlement Systems, Payment Services and Electronic Money Institutions.’[1]

As can be understood from the aforementioned statement of the Central Bank of the Republic of Turkey, it is not possible to use cryptocurrencies as a medium of exchange in payment transactions in Turkey. Article 3 of the Regulation on the Non-Use of Crypto Assets in Payments, dated 2021;

Crypto assets cannot be used directly or indirectly in payments.

Services cannot be provided for the direct or indirect use of crypto assets in payments.

It is valid.

Even though they cannot be used directly or indirectly in payments, determining the legal nature of crypto assets, clarifying whether they can be agreed upon as performance in contracts, whether they can be transferred through inheritance, and whether they constitute an asset value that can be seized are important in terms of solving legal problems that may arise.

First of all, it is necessary to determine whether crypto assets can be accepted as money. Money in Turkish law; It is defined as an asset that is minted, placed on the market and removed from circulation by the competent authorities of a country. Crypto assets, on the other hand, cannot be considered as money since they are virtual assets that allow anyone to participate in the system and generate money without being subject to any authority.

In accordance with Article 18 of Law No. 6493, electronic money can only be issued by persons authorized by the Central Bank of the Republic of Turkey. Therefore, it is not possible to describe crypto assets as electronic money. In addition, the Banking Regulation and Supervision Agency made a statement on the issue and stated that it is not possible to accept crypto assets as electronic money;

Bitcoin, known as a virtual currency that is not issued by any official or private organization and whose return is not guaranteed, is not considered as electronic money within the scope of the Law due to its current structure and operation, and therefore its supervision and control is not possible within the framework of the said Law.[2]

On the other hand, it is necessary to reveal whether it is possible to accept crypto assets as goods. Although the Turkish Civil Code does not clearly define the concept of goods, it is defined in the doctrine as follows: Goods; They are corporeal entities, other than persons and animals, that have an economic value over which individual control can be achieved.[3] As can be understood from the definition, in order for an entity to be considered as a thing, it must have a corporeal existence. Since crypto assets do not have physical existence, it is not possible for them to be described as goods. However, an opinion in the doctrine suggests that the provisions of property law should also be applied to crypto assets to the extent that they are appropriate to their nature.

Finally, it is necessary to consider whether it is possible to qualify crypto assets as securities. In accordance with Article 3 of Law No. 6362;

Securities: Except for money, checks, drafts and bills;

1) Shares, other securities similar to shares and depositary receipts related to the shares in question,

2) It refers to debt instruments or debt instruments based on securitized assets and income and depositary receipts for the said securities.

Therefore, it is not possible to accept crypto assets as securities within the framework of the said Law provision.

Is It Possible for Crypto Assets to Be Subject to Legal Procedures?

The basic principle accepted in Turkish Law regarding contracts is freedom of contract. In accordance with Article 26 of the Turkish Code of Obligations;

Parties can freely determine the content of a contract within the limits prescribed by law.

Therefore, the parties to the contract have the freedom to conclude any contract that does not contradict the mandatory provisions of the law and does not violate morality, public order or personal rights. In this regard, it is possible to decide on any crypto asset as a counter performance in the contract. However, since this act cannot be considered as a monetary payment in accordance with the relevant Regulation, it must be accepted as a sui generis act.

While it is possible to decide on crypto assets as performance in accordance with the principle of freedom of contract in cases where there are no mandatory provisions in the law, the Labor Law stipulates that money must be paid to the worker as a wage, and in this respect it constitutes an exception. Article 32 of the Labor Law;

In general terms, wage is the amount provided and paid in cash to a person by the employer or third parties in exchange for a job.

It is valid.

As can be understood from the provision, it is not possible to pay the worker any asset other than money as wages. Therefore, it is out of the question for the worker’s wage to be determined as a crypto asset. However, it is possible to determine the crypto asset as a side action.

Is It Possible to Seizure Crypto Assets?

Seizure is the legal seizure of the debtor’s property, rights and receivables by the enforcement office in order to obtain a monetary receivable.[4] In accordance with Article 85 of the Enforcement and Bankruptcy Law, an amount of the debtor’s movable and immovable properties, receivables and rights that are owned by him or a third party, sufficient to cover the debt, is seized. As a rule, all kinds of property and rights of the debtor can be seized. Which goods cannot be seized, partially or completely, is listed as a limitation in the Enforcement and Bankruptcy Law, and all goods and rights belonging to the debtor, other than those listed and for which there is no regulation stating that they cannot be seized by any special law, are subject to seizure.[5] Since crypto assets are not counted among the assets that cannot be seized, their seizure is possible.

Crypto assets can only be identified through the debtor’s declaration of assets. Declaration of property in accordance with Article 74 of the Enforcement and Bankruptcy Law;

It is the debtor’s notification to the enforcement office in writing or verbally about the type, nature and characteristics of the goods, receivables and rights held by him and third parties that are sufficient to fulfill his debt, all kinds of earnings and income, and means of subsistence according to his lifestyle, and how he will be able to pay his debt accordingly.

According to the said provision, the debtor is required to declare both the assets he owns and the assets held by third parties. In other words, the debtor must declare crypto assets in his own wallet or in a third party’s asset declaration. Otherwise, coercive imprisonment will be imposed on the debtor who does not declare his assets, in accordance with Article 76 of the Enforcement and Bankruptcy Law. If the debtor, who does not declare that he has crypto assets despite declaring his assets, is later learned to have crypto assets, action will be taken against him in accordance with Article 338 of the Enforcement and Bankruptcy Law.

Is it Possible to Transfer Crypto Assets through Inheritance?

Goods that have economic value, in other words, that can be measured in money, can be inherited. Since crypto assets also have economic value, they can be inherited. However, in order for crypto assets to be used by the heirs, the testator must deliver his passwords to his heirs before death.

In conclusion;

It does not seem possible to fully define the legal character of crypto assets through existing legal norms. However, when we consider that crypto assets are subject to legal transactions and can cause serious legal disputes, it is not difficult to foresee that comprehensive new legal regulations that can respond to changes in technology, as well as doctrine and judicial decisions on the subject will be formed in the near future.

[1] Central Bank of the Republic of Turkey, 2021, Press Release on Payments Area, https://www.tcmb.gov.tr/wps/wcm/connect/TR/TCMB%20TR/Main%20Menu/Duyurular/Basin/2021/DUY2021-17

[2] Banking Regulation and Supervision Agency, 2013, Press Release About Bitcoin, https://www.bddk.org.tr/Duyuru/EkGetir/510?ekId=530

[3] Oguzman, Secili, Oktay-Ozdemir, Eşya Hukuku, İstanbul, Filiz Publisher, 2021, p.4

[4] Atalı, Ermenek, Erdogan, İcra ve İflas Hukuku, Ankara, Yetkin Publisher, 2021, p.185

[5] 12th Civil Chamber of the Supreme Court of Appeals, Dated 22.02.2017, Merits No: 2016/11364, Decision No. 2017/2436