“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. In today’s Grand Chamber judgment1 in the case of Yüksel Yalçınkaya v. Türkiye (application no. 15669/20) the European Court of Human Rights held: by 11 votes to 6, that there had been a violation of Article 7 (no punishment without law) of the European Convention on Human Rights, by 16 votes to 1, that there had been a violation of Article 6 § 1 (right to a fair trial) of the European Convention, and unanimously, that that there had been a violation of Article 11 (freedom of assembly and association) of the Convention. The case concerned the conviction of a former teacher for membership of an armed terrorist organisation, namely the FETÖ/PDY, formerly known as the “Gülen movement” and considered by the Turkish authorities to be behind the attempted coup d’état of 15 July 2016. Mr Yalçınkaya’s conviction had been based decisively on his use of the encrypted messaging application called “ByLock”, which the domestic courts held had been designed for the exclusive use of FETÖ/PDY members under the guise of a global application. Indeed, anyone who had used Bylock could, in principle, be convicted on that basis alone of membership of an armed terrorist organisation. The Court held that such a uniform and global approach by the Turkish judiciary vis-à-vis the ByLock evidence departed from the requirements laid down in national law in respect of the offence in question and was…
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. In the article titled "Income and expenses of the office" in the section on the Legal Aid System The revenues of the legal aid office are as follows a) Three percent of the fees according to the tariffs numbered (1), (2) and (3) of the Law on Fees No. 492 based on the total amounts determined according to the final account results of two years ago, and three percent of the fines, except for administrative fines, (4)(5) b) The shares to be allocated to the bar association and the aids made to the bar association from public and private institutions and organizations, provincial or municipal budgets, c) All kinds of donations made for this purpose, d) The fee to be paid by lawyers withdrawing from legal aid, e) Ten percent of the fee charged by the lawyer assigned with legal aid and five percent of the portion of the legal aid beneficiary who is vindicated in the case, other than the lawyer's fee. The expenses of the Office are as follows: a) Fees to be paid, when necessary, to the lawyers assigned with judicial assistance, b) Fees to be paid to those to be assigned to the Office, c) Office expenses and other expenses. The income and expenses of the legal aid offices shall be shown in separate sections of the budget of the office. Any surplus income remaining in this…
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. WHAT HAPPENED? At the beginning of the article, it is necessary to share the explanations of some of the abbreviations, as there is a wide variety of capital instruments in the US Capital Market, so that the subject can be understood more clearly while reading the article; ETP : Tradable financial instruments that closely track an underlying market, such as indices, currencies and shares. Exchange-traded products. ETF : Funds that are traded on exchanges and usually track a specific index. Exchange-traded funds. Essentially a type of ETP. After the SEC rejected Grayscale Investment's application for a spot bitcoin exchange-traded fund, it was questioned whether the SEC was justified in its decision, as the agency had previously approved bitcoin futures products. Grayscale Investment LLC's application to convert the spot Grayscale Bitcoin Trust (GBTC) (GBTC.PK) into an exchange-traded fund (ETF) was rejected on the grounds that the proposal did not meet anti-fraud and investor protection standards. The court ordered the SEC to defend Grayscale's argument that because the regulator had previously approved certain oversight agreements to prevent fraud in ETFs based on bitcoin futures, the same setup should be satisfactory for Grayscale's spot fund because both spot and futures funds are based on the price of bitcoin. Bitcoin futures ETFs…
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. Ursula von der Leyen, President of the European Commission, on August 25, 2023 shared a post like this (1) We’re bringing our European values into the digital world. With strict rules on transparency and accountability, our Digital Services Act aims to protect our children, societies and democracies. As of today, very large online platforms must apply the new law. — Ursula von der Leyen (@vonderleyen) August 25, 2023 According to the regulation, major online platforms must ensure that; Users will receive clear information about why certain information is being recommended to them and have the right to opt out of recommendation systems based on profiling; Users will be able to easily report illegal content and platforms will have to handle such reports with due diligence; Platforms will be required to label all advertisements and inform users who is promoting them; Platforms are required to provide an easily understandable, plain language summary of their terms and conditions in the languages of the Member States in which they operate. While the regulation as it stands appears to be a highly attractive and "demanding" regulation, the current proposals for the DSA approved by the EU Parliament committee would require online platforms to quickly remove potentially illegal content. The regulation would automatically make any "active platform"…
THE LEGAL SITUATION REGARDING THE USE OF CRYPTOCURRENCY(1) IN PAYMENTS IN TURKEY* *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. A- Legal Regulations Determining the Principles Regarding Cryptocurrencies Regulation on the Non-Use of Crypto Assets in Payments (prepared by the CBRT, adopted on 16.04.2021, entered into force on 30.04.2021) (hereinafter referred to as the CBRT Regulation) Regulation on Measures to Prevent Laundering Proceeds of Crime and Financing of Terrorism (prepared by the Ministry of Finance, adopted on 10.12.2007, entered into force on 09.01.2008) (for the sake of clarity, it will be briefly referred to as MASAK Regulation in this document) General Communiqué on Tax Procedure Law (Serial No: 529) (prepared by the Ministry of Treasury and Finance (Revenue Administration - RA), entered into force on 13.07.2021) (hereinafter referred to as the RA Communiqué) B- Provisions in the Regulations 1- CBRT (Central Bank of Republic of Turkiye) Regulation 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…
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. SUBJECT OF LAWSUIT The case was brought by the SEC against Ripple and two company executives (Bradley Garlinghouse and Christian A. Larsen) for illegal offers and sales of securities in violation of Securities Act regulations. Company executives were also alleged to have aided and abetted the company's violations of the law. WHAT HAPPENED? As a factual background in the decision, it is seen that an examination was made from the establishment of ripple (first NewCoin Inc. then OpenCoin Inc. and finally until its establishment as Ripple Labs in 2014). It is claimed that 20 billion of the 100 billion xrp that ripple offered to the market was owned by the 3 founders, ripple had 80 billion xrp, ripple sold xrp directly to certain individuals and/or organizations (primarily institutional buyers, venture funds, ODL customers *Open and Distance Learning) through institutional sales through its wholly owned subsidiaries. ripple is claimed to have sold 728.9 million USD worth of xrp from these sales. Second, ripple made sales on digital asset exchanges as part of a "program" or through trading algorithms. Ripple does not have information about who these sales were made to,…
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. IS CAPITAL MARKET LAW INSUFFICIENT? 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,…