Illegal banking activities - Article 172 of the Criminal Code of the Russian Federation, you are accused or suspected, first steps and what to fear

Defense in cases of illegal banking activities

Recently, the fight against cash withdrawal, which is classified by law as illegal banking activity, has acquired particular importance in our country.
It should be borne in mind that any “cash-out platform” is an organization created for the purpose of systematically carrying out illegal financial transactions, with a specific distribution of roles for its members and the establishment of a strict hierarchy between them. Based on the above, each case of initiation of a criminal case under Art. 172 of the Criminal Code of the Russian Federation is analyzed by law enforcement officials for the possibility of additional qualification of the activities of the accused under Art. 210 of the Criminal Code of the Russian Federation - organization of a criminal community or participation in it. The maximum punishment provided for in Art. 210 of the Criminal Code of the Russian Federation - twenty years in prison. The activities of clients of “cash platforms” are usually checked for the presence of the elements provided for in Article 199 of the Criminal Code of the Russian Federation - tax evasion. The main evidence in criminal cases under Article 172 of the Criminal Code of the Russian Federation is traditionally: • testimony of the “nominee” directors of shell companies involved in the scheme, using whose bank accounts illegal activities were carried out • testimony of accomplices and witnesses in the case • conclusion of a comprehensive forensic accounting examination regarding the establishment the amount of income received • the conclusion of a phonoscopic forensic examination regarding the identification of the voice in telephone conversations recorded by the investigation, etc. When commissioning a forensic accounting examination, investigators traditionally formulate the main question to the expert: “What is the amount of income received in the implementation of illegal banking activities, when calculated based on the percentage indicated by the investigator of the amounts passed through bank accounts involved in the process of carrying out illegal banking activities for a certain period of time?” period?". In practice, statements of bank accounts of companies controlled by the accused are seized and the amount of income is calculated by simply calculating the percentage specified by the investigator. This approach to calculating illegally obtained income cannot be called objective. So, not all funds passing through bank accounts participate in the same banking schemes. Also, not all identical transactions use the same percentage of the profits of persons carrying out illegal activities. Currently, the practice of investigating criminal cases involving illegal banking activities is changing. In 2021, the Moscow City Court, in its appeal ruling, pointed out the need for investigative authorities to describe in the indictment specific banking transactions carried out by the accused, indicating the time, place, method of their execution, as well as the size of each banking transaction. Thus, the investigative authorities must indicate the dates of transactions, the addresses of credit institutions where the accused, according to the charges brought, organized the opening of current accounts, carried out transfers, collection of funds, cash services, cash issuance, opening and maintaining bank accounts. Taking into account the position of the Moscow City Court, the practice of investigating criminal cases under Art. 172 of the Criminal Code of the Russian Federation (illegal banking activities) must change. Provided that the investigator describes all the circumstances of each banking transaction carried out by the accused, the procedure for calculating the income received will become significantly more complicated, which in turn will provide a competent lawyer for illegal banking activities with new opportunities to influence the investigation process and defend the interests of his client.

Criminal liability

Responsibility for illegal entrepreneurship and illegal banking activities for a person begins at the age of 16. In this case, persons associated with:

• organization and operation of platforms for illegal cashing out (hereinafter referred to as “cashout”) of funds;
• accounting employees engaged in the field of "cash";
• employees of banking institutions who allow settlements with clients, which are prohibited by law or require additional permits (licenses);
• It is extremely rare that the subjects include “cash out” clients.

Tasks of a lawyer in illegal banking activities

Faced with the task of defending a case of illegal banking activities, a lawyer under Art. 172 of the Criminal Code, first of all, must correctly assess the actual situation in which its client is located and answer the following questions:

‍ 1. Do the events considered in a criminal case constitute a crime? If so, which article of the criminal code provides for it? 2. What evidence does the investigation have of the client’s involvement in the crime? 3. What additional evidence is the investigator likely to obtain during the investigation? 4. What evidence of the client’s innocence is there in the criminal case materials? 5. What new evidence of the client’s innocence can the defense attorney obtain? 6. Is it possible and under what circumstances to terminate criminal prosecution against a client or reclassify his actions to another, softer article of the Criminal Code, for example, from Article 172 (illegal banking activities) to Article 171 of the Criminal Code of the Russian Federation (illegal entrepreneurship)? 7. What methods of procedural conduct and defense techniques are appropriate in this criminal case? 8. What is the likely judicial prospect of the case when using a particular defense option?

Having answered the questions posed, an experienced lawyer will be able to form a verified position on the procedural behavior of his client at this stage of criminal proceedings.

For a person suspected or accused of illegal banking activities, it is very important to find a good lawyer for economic crimes, provide your lawyer with detailed and truthful information about the case, and also help to understand the events that took place.

As part of the defense at the initial stage, it is advisable to focus efforts on the following areas: • Criticism of the investigation’s statements about the accused’s carrying out “banking transactions”, and not others allowed to be carried out without special permission • Criticism of the method of calculating the amount of income received • Analysis of the possibility of asserting non-involvement the defendant to the events being studied in the criminal case

In such a situation, the importance of building a defense by an experienced economic crime lawyer cannot be overestimated. A competent lawyer for illegal banking activities will help the client determine a comprehensive list and collect evidence of his innocence, as well as take the right position in the case.

‍ Recommendations of a lawyer on illegal banking activities (p. 172 of the Criminal Code of the Russian Federation):

‍ Are you accused of illegal banking activities? What to do?

‍ If you are detained or summoned for questioning by an investigator, I recommend that you: • Immediately find a good lawyer specializing in economic defense and enter into an agreement with him for your defense. Only an experienced economic litigation lawyer will be able to professionally assess the situation and build a plan for your defense. • Refuse to give any testimony or explanation until you consult with your attorney. • Refuse the services of a lawyer invited by the investigator or operational officers if you do not have confidence in his qualifications and desire to provide assistance to you, and not to the person who invited him. • Remember all the circumstances of the events being considered in the case, carefully analyze them and present your considerations in detail to the defense attorney. • Together with your defense lawyer, determine a list of evidence of your innocence and/or mitigating circumstances and help the lawyer collect them. • In your testimony, strive to be as close as possible to the real state of affairs. Even the best lawyer in Moscow for illegal banking activities will not be able to formulate an impeccable version of events in the absence of appropriate evidence and prepare all participants in the process for a detailed interrogation by an experienced investigator. • Focus the investigator's attention on your desire to act within the law. Prove the absence of intent to commit a crime. No intent - no crime. • Refrain from petty troubles and unnecessary conflicts with the investigator. While performing his work, he may be subject to emotions. Another thing is his boorish behavior that clearly goes beyond the law. In this case, it is necessary to use all the methods provided by the Code of Criminal Procedure and other laws of the Russian Federation to protect the violated rights. • Prepare in advance for possible searches of residential and work premises, seizure of phones and computers, seizure of bank accounts, and possible detention.

Defense of a lawyer for illegal banking activities is most effective when he intervenes in the case at the very beginning of the process and coordinates the testimony and behavior of his client, protecting him from possible mistakes.

One of the trials I conducted in a criminal case about illegal banking activities: Fedosova S.

Do you have any questions? Do you need the help of an experienced lawyer regarding illegal banking activities? Contact us!

Legal basis for the protection of banking information and sanctions for violation of bank secrecy

Legislation on the protection of bank secrecy is based on the Constitution of the Russian Federation (Article 23 defines the right of citizens to personal privacy, privacy of correspondence and the privacy of other personal information) and the provisions of international treaties and agreements (regarding information security). It includes provisions:

• Codes of the Russian Federation (Civil (Article 857), Criminal (Article 183), on administrative offenses (Articles 13.14, 13.11));
• laws and regulations (law “On Banks and Banking Activities” dated December 2, 1990 No. 395-1 (Article 26), Law “On Information..." dated July 27, 2006 No. 149-FZ, etc.).

Russian legislation provides for unconditional compliance with the requirements of standards (including international ones) and regulations for the processing and protection of information.

Responsibility for disclosure of bank secrecy is provided as follows:

• administrative:

• civil law (Article 857 of the Civil Code of the Russian Federation) - may arise for the bank if a client whose data was disclosed demands compensation for losses caused;
• criminal (see next section).

Find out what is included in the concept of “personal data” and what sanctions may arise if they are disclosed in the “Personal Data” section.

Judicial practice: sentences and punishment under Art. 172 of the Criminal Code of the Russian Federation

• Resolution of the Plenum of the Supreme Court of the Russian Federation dated... PLENARY OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION dated December 27, 2002 N 29 ON JUDICIAL PRACTICE IN CASES OF THEFT,...
• Decision of the Supreme Court: Determination N 203-APU17-21... THE SUPREME COURT OF THE RUSSIAN FEDERATION Case No. 203-APU17-21 APPEAL DECISION Moscow August 31, 2021 Judicial Collegium for Military Personnel of the Supreme...
• Resolution of the Presidium of the Supreme Court of the Russian Federation dated... PRESIDIUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION dated December 5, 2018 N 126-P18 ON RESUMING PROCEEDINGS IN THE CASE DUE TO NEW...
• Resolution of the Plenum of the Supreme Court of the Russian Federation dated... PLENARY OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION of November 15, 2021 N 48 ON THE PRACTICE OF APPLICATION BY COURTS OF LEGISLATION GOVERNING FEATURES...
• Judicial Collegium for Criminal Cases, appeal:... THE SUPREME COURT OF THE RUSSIAN FEDERATION Case No. 72-APU 17-21 APPEAL DECISION Moscow October 04, 2021 Judicial Collegium for Criminal Cases...
• Decision of the Supreme Court: Resolution No. 310P13 dated... DECISION OF THE PRESIDIUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION Case No. 310-P13 Moscow January 23, 2014 Presidium of the Supreme Court of the Russian Federation...
• Resolution of the Plenum of the Supreme Court of the Russian Federation dated... PLENAUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION dated June 25, 2021 N 18 ON JUDICIAL PRACTICE IN CASES OF CRIMES,...
• Resolution of the Plenum of the Supreme Court of the Russian Federation dated... PLENAUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION dated December 17, 2021 N 43 ON SOME ISSUES OF JUDICIAL PRACTICE IN CASES...
• Ruling of the ECtHR dated 02/14/2017 EUROPEAN COURT OF HUMAN RIGHTS THIRD SECTION CASE “MASLOVA VS. RUSSIAN FEDERATION” (Complaint No. 15980/12) JUDGMENT…
• Decision of the Supreme Court: Determination No. 38-АПУ17-2 dated... THE SUPREME COURT OF THE RUSSIAN FEDERATION No. 38-АПУ17-2 APPEAL DECISION Moscow March 1, 2021 Judicial Collegium for Criminal Cases of the Supreme Court...

Results

The list of violations that may result in prosecution is given in Art. 15.25 Code of Administrative Offenses of the Russian Federation. Carrying out illegal currency transactions entails bringing the violator to administrative or criminal liability. The list of sanctions includes fines and even imprisonment.

What is important to know when working with currency, read in the section “Currency Transactions” .
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