The Supreme Court plenum updated its approach to money laundering
As explained by judge-reporter Alexander Chervotkin, amendments to the resolution of the Plenum of the Supreme Court dated July 7, 2015 “On judicial practice in cases of legalization (laundering) of funds or other property acquired by criminal means, and on the acquisition or sale of property known to be obtained by criminal means » are aimed at “clarifying and supplementing” the explanations given in it on the application of Art. 174 and 174.1 of the Criminal Code.
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There were two reasons for updating the clarifications. The first is the “need to comply with Russia’s international obligations” in connection with the recommendations of the Financial Action Task Force (FATF) and in connection with the ratification in 2021 of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime and financing of terrorism of May 16, 2005.
The second is that in more than three years that have passed since the adoption of the resolution of the Plenum, new issues have arisen in the practice of the courts. For example, criminals have begun to actively use cryptocurrencies.
Cryptocurrency cannot be laundered
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A fundamentally new clarification, as described by Chervotkin, is that the subject of laundering criminal proceeds can be recognized as “money converted from virtual assets (cryptocurrency) acquired as a result of the commission of a crime.” That is, you cannot launder cryptocurrency: this will result in criminal liability.
The judge-reporter emphasized: with this clarification, the Plenum of the Supreme Court is not trying to define the concept of virtual assets, which does not exist in Russian laws. In addition, the Supreme Court does not say that cashing out cryptocurrency itself cannot be called a crime - for this it is necessary to establish that the virtual asset was obtained by criminal means.
“The reference to virtual assets is given solely for the purpose of interpreting criminal law rules and in no way purports to be applicable in other types of legal proceedings,” Chervotkin said.
In Russia, there are “specific convictions” when criminals converted cryptocurrency received from drug sales into cash, Chervotkin emphasized. “Cryptocurrencies are in criminal circulation; members of criminal groups use them as a means of payment. In this regard, clarifications are relevant that they can be the subject of income laundering,” said Deputy Prosecutor General Leonid Korzhinek
The size must be counted from the beginning
Another change reads: large and especially large-scale acts under Art. 174 and 174.1 of the Criminal Code on money laundering should be considered based on the actual value of the property that is the subject of the crime at the time of the start of its “laundering”. If many operations are carried out to launder income, then the amount must be calculated at the time the first of them begins. And if the original value of the property is unknown, then it can be established using the opinion of a specialist or expert.
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This amendment will help in cases where the legalization of criminal proceeds consisted of multiple transactions. For example, during which the exchange rate changed, the judge-reporter emphasized.
In addition, if criminals launder proceeds in foreign currency, then to determine the “size” it is necessary to use the official exchange rate of the Central Bank of this currency at the time of the start of legalization.
Where does the money come from?
A new basis will appear in the text of the resolution, which will help establish the fact of the criminal origin of money or other property - this is a court decision to terminate the criminal case.
“As you know, the basis for terminating a criminal case or criminal prosecution can be a decision not only of the preliminary investigation body, as indicated in the text of the current Plenum, but also a court decision, including in connection with the imposition of a recently introduced court fine,” Chervotkin explained the change .
Purposes of the crime
To bring to justice under Art. 174 and 174.1 of the Criminal Code, the court must establish that the purpose of the suspects’ actions was precisely “to give a lawful appearance to the possession, use and disposal of money and other property.”
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According to the new edition of the Plenum, brought into line with the ratified Convention of the Council of Europe, this goal should be understood as “concealing the criminal origin, location, placement, movement of property or rights to it.” This goal can be established with the help of the factual circumstances of the case, which indicate the nature of the financial transactions or transactions performed, as well as with the help of “other related actions of the guilty person and his accomplices.”
Clarification of large size
For the purposes of Art. 175 of the Criminal Code “Acquisition or sale of property known to be obtained by criminal means” The Plenum of the Supreme Court proposes to clarify the large amount of property and increase it from 1.5 million to 2.25 million rubles.
For this purpose, the Plenum made reference to the note to Art. 170.2 of the Criminal Code.
Resolution of the Plenum of the Supreme Court “On amendments to the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 7, 2015 No. 32 “On judicial practice in cases of legalization (laundering) of funds or other property acquired by criminal means, and on the acquisition or sale of property, knowingly obtained by criminal means.”
Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 18, 2004 No. 23
In order to ensure the correct application of legislation on criminal liability for crimes in the field of economic activity, provided for in Articles 171, 174 and 174.1 of the Criminal Code of the Russian Federation, and in connection with issues that have arisen in judicial practice, the Plenum of the Supreme Court of the Russian Federation
decides:
Provide the following clarifications to the courts:
1. In accordance with Part 1 of Article 34 of the Constitution of the Russian Federation, everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law.
When deciding whether a person’s actions contain signs of a crime under Article 171 of the Criminal Code of the Russian Federation, courts should find out whether these actions correspond to the signs of entrepreneurial activity specified in paragraph 1 of Article 2 of the Civil Code of the Russian Federation, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services, which is carried out independently at one’s own risk by a person registered in the manner prescribed by law as an individual entrepreneur.
In accordance with Article 23 of the Civil Code of the Russian Federation, a citizen has the right to engage in entrepreneurial activity without forming a legal entity from the moment of state registration as an individual entrepreneur, and the head of a peasant (farm) enterprise - from the moment of state registration of a peasant (farm) enterprise. A legal entity is subject to state registration (Articles 49 and 51 of the Civil Code of the Russian Federation).
Courts should keep in mind that there is no corpus delicti for this crime in cases where a person registered as an individual entrepreneur carries out business activities not prohibited by law, having a special permit (license) to carry out a specific type of activity, if this requires obtaining a license, and complies with licensing requirements and conditions.
2. In cases where a person not registered as an individual entrepreneur acquired residential premises or other real estate for personal needs or received it by inheritance or under a gift agreement, but due to the lack of need to use this property, temporarily rented it out or rented and as a result of such a civil transaction received income (including in a large or especially large amount), what he did does not entail criminal liability for illegal entrepreneurship. If the specified person evades paying taxes or fees on the income received, his actions, if there are grounds for this, contain elements of a crime provided for in Article 198 of the Criminal Code of the Russian Federation.
3. Carrying out entrepreneurial activities without registration will take place only in cases where the unified state register for legal entities and the unified state register for individual entrepreneurs does not contain a record of the creation of such a legal entity or the acquisition by an individual of the status of an individual entrepreneur or contains a record of the liquidation of a legal entity person or termination of the activity of an individual as an individual entrepreneur.
Carrying out business activities in violation of the registration rules should be understood as the conduct of such activities by a business entity that knew that violations were committed during registration that give grounds for declaring the registration invalid (for example, documents, data or other information were not submitted in full). information necessary for registration, or it was carried out contrary to existing prohibitions).
The submission to the body that carries out state registration of legal entities and individual entrepreneurs of documents containing knowingly false information should be understood as the submission of documents containing such knowingly false or distorted information, which entailed the unreasonable registration of a business entity.
4. When deciding whether a person’s actions contain signs of carrying out business activities without a special permit (license) in cases where such permission is required, the courts should proceed from the fact that certain types of activities, the list of which is determined by federal law, can be carried out only on the basis special permission (license). The right to carry out activities for which a special permit (license) is required arises from the moment the permit (license) is received or within the period specified therein and terminates upon expiration of its validity (unless otherwise provided), as well as in cases of suspension or cancellation permits (licenses) (clause 3 of Article 49 of the Civil Code of the Russian Federation).
In accordance with Article 2 of the Federal Law “On Licensing of Certain Types of Activities”, carrying out business activities in violation of licensing requirements and conditions should be understood as engaging in a certain type of business activity on the basis of a special permit (license) by a person who does not comply with the licensing requirements and conditions, the fulfillment of which by the licensee mandatory when carrying out a licensed type of activity.
5. The actions of a person engaged in private medical practice or private pharmaceutical activities without the appropriate special permit (license), if they negligently caused harm to health or death of a person, must be qualified under the relevant part of Article 235 of the Criminal Code of the Russian Federation.
In the case where the implementation of private medical practice or private pharmaceutical activities without the appropriate special permit (license) did not entail the consequences specified in Article 235 of the Criminal Code of the Russian Federation, but at the same time major damage was caused to citizens, organizations or the state or income was generated in a large amount or in an especially large amount, the person’s actions should be qualified under the relevant part of Article 171 of the Criminal Code of the Russian Federation.
6. If a legal entity that has special legal capacity to carry out only certain types of activities (for example, banking, insurance, auditing) is also engaged in other types of activities that it is not entitled to engage in in accordance with the constituent documents and the existing license, then such actions associated with the unlawful implementation of other types of activities should be considered as illegal business activity without registration or illegal business activity without special permission (license) in cases where such permission is required.
7. According to Article 2 of the Federal Law “On Licensing of Certain Types of Activities,” the licensing authorities are the federal executive authorities and the executive authorities of the constituent entities of the Russian Federation.
Licensing bodies can also be local governments, for example, in cases of issuing a license for the right to conduct educational activities, retail sale of alcoholic beverages (clause 7 of Article 33 of the Federal Law “On Education”, Article 18 of the Federal Law “On State Regulation of the Production and Turnover of Ethyl Alcohol and alcoholic products").
8. Courts should keep in mind that in cases where a constituent entity of the Russian Federation has adopted a regulatory legal act on issues arising from relations related to the licensing of certain types of activities, in violation of its competence or in violation of federal law, or when such legal regulation relates to the joint jurisdiction of the Russian Federation and the constituent entities of the Russian Federation (Article 76 of the Constitution of the Russian Federation), federal law applies.
9. If federal law allows engaging in entrepreneurial activities only with a special permit (license), but the procedure and conditions were not established, and a person began to carry out such activities in the absence of a special permit (license), then the actions of this person associated with the extraction of income in on a large or especially large scale or causing major damage to citizens, organizations or the state, should be qualified as carrying out illegal business activities without special permission (license).
10. Within the meaning of the law, the subject of the crime provided for in Article 171 of the Criminal Code of the Russian Federation can be either a person who has the status of an individual entrepreneur or a person carrying out business activities without state registration as an individual entrepreneur.
When an organization (regardless of its form of ownership) carries out illegal business activities, liability under Article 171 of the Criminal Code of the Russian Federation is subject to liability for a person who, by virtue of his official position, was directly, permanently, temporarily, or by special authority assigned the responsibilities of managing the organization (for example, the head of the executive body of a legal entity or another person who has the right to act on behalf of this legal entity without a power of attorney), as well as a person who actually performs the duties or functions of the head of the organization.
11. If a person (with the exception of the head of an organization or a person who is permanently, temporarily or by special authority directly entrusted with the responsibilities of managing an organization) is in an employment relationship with an organization or individual entrepreneur that operates without registration, in violation of registration rules, without special permission (license) or in violation of licensing requirements and conditions or with the provision of deliberately forged documents, then the fulfillment by this person of the duties arising from the employment contract does not contain the elements of a crime provided for in Article 171 of the Criminal Code of the Russian Federation.
12. In Article 171 of the Criminal Code of the Russian Federation, income should be understood as revenue from the sale of goods (work, services) during the period of illegal business activity without deducting expenses incurred by the person related to the implementation of illegal business activity.
13. When calculating the amount of income received by an organized group of persons, courts should proceed from the total amount of income received by all its participants.
In the case where illegal business activity carried out by an organized group of persons was associated with the extraction of income on a particularly large scale, the actions of these persons are subject to qualification under paragraphs “a” and “b” of Part 2 of Article 171 of the Criminal Code of the Russian Federation with a descriptive and motivating parts of the verdict and the reasons for the decision made.
14. If, when engaged in illegal business activities, a person illegally uses someone else’s trademark, service mark, name of place of origin of goods or similar designations for homogeneous goods and in the presence of other signs of a crime provided for in Article 180 of the Criminal Code of the Russian Federation, what he has done must be classified as a set of crimes , provided for in Articles 171 and 180 of the Criminal Code of the Russian Federation.
15. If, in the course of illegal business activities, the production, acquisition, storage, transportation for marketing purposes or sale of unmarked goods and products subject to mandatory marking with excise duty stamps, special stamps or marks of conformity protected from counterfeiting are carried out, committed on a large or especially large scale , the actions of a person must be qualified according to the totality of crimes provided for in Articles 171 and 171.1 of the Criminal Code of the Russian Federation.
In cases where illegal business activity was associated with the production, storage or transportation for the purpose of distribution or sale of goods and products, performance of work or provision of services that do not meet the requirements for the safety of life or health of consumers, the offense constitutes a set of crimes provided for in the relevant parts of Article 171 and Article 238 of the Criminal Code of the Russian Federation.
If illegal business activity involves unauthorized production, sale or use, as well as counterfeiting of a state hallmark, the person’s actions must be classified as a set of crimes: under Article 171 of the Criminal Code of the Russian Federation, as well as under Article 181 of the Criminal Code of the Russian Federation as committed out of selfish or other personal interest.
16. The actions of a person found guilty of engaging in illegal business activities and failing to pay taxes and (or) fees on income received as a result of such activities are fully covered by the crime provided for in Article 171 of the Criminal Code of the Russian Federation. At the same time, property, money and other valuables obtained as a result of the commission of this crime, in accordance with paragraphs 2 and 2.1 of part 1 of Article 81 of the Code of Criminal Procedure of the Russian Federation, are recognized as material evidence and, by virtue of paragraph 4 of part 3 of Article 81 of the Code of Criminal Procedure of the Russian Federation, are subject to conversion into state revenue with the reduction in the verdict the rationale for the decision made.
17. If federal legislation excludes the corresponding type of activity from the list of types of activities the implementation of which is permitted only on the basis of a special permit (license), the actions of a person who was engaged in this type of business activity do not contain the corpus delicti provided for in Article 171 of the Criminal Code of the Russian Federation.
18. In cases where a person, with the goal of generating income, is engaged in illegal activities, liability for which is provided for in other articles of the Criminal Code of the Russian Federation (for example, illegal production of firearms, ammunition, sale of narcotic drugs, psychotropic substances and their analogues), the crime committed they do not require additional qualifications under Article 171 of the Criminal Code of the Russian Federation.
19. Courts should keep in mind that financial transactions and other transactions specified in Articles 174 and 174.1 of the Criminal Code of the Russian Federation should be understood as actions with funds, securities and other property (regardless of the form and methods of their implementation, for example, a loan agreement or credit, bank deposit, handling and management of money in the economic project involved) aimed at establishing, changing or terminating the civil rights or obligations associated with them. Transactions with property or money may include, for example, donation or inheritance.
Moreover, within the meaning of the law, liability under Article 174 of the Criminal Code of the Russian Federation or under Article 174.1 of the Criminal Code of the Russian Federation also occurs in cases where the guilty person committed only one financial transaction or one transaction with funds or property acquired by criminal means.
20. To resolve the issue of the existence of a crime under Article 174 of the Criminal Code of the Russian Federation, it is necessary to establish that the person made the specified financial transactions and other transactions with funds or other property in order to give legal form to the possession, use and disposal of the specified funds or other property .
When deciding whether a person’s actions contain signs of a crime under Article 174 of the Criminal Code of the Russian Federation, courts should find out whether there is evidence in the case indicating that the person who carried out financial transactions and other transactions was reliably aware that the funds or other property was acquired by other persons through criminal means.
21. When rendering a conviction under Article 174 of the Criminal Code of the Russian Federation or under Article 174.1 of the Criminal Code of the Russian Federation, the court must establish the fact that a person received money or other property that was obviously obtained by criminal means or as a result of the commission of a crime.
22. In cases where a person acquired funds or other property as a result of committing a crime and used these funds or other property to carry out financial transactions and other transactions, what this person did is subject to classification as a set of crimes (for example, taking a bribe, theft , fraud and as legalization (laundering) of funds or other property).
23. Persons using their official position (clause “b” of part 3 of article 174 and clause “b” of part 3 of article 174.1 of the Criminal Code of the Russian Federation) should be understood as officials, employees, as well as persons performing managerial functions in commercial and other organizations .
24. The use by a notary of his official powers to certify a transaction that he knows is aimed at legalizing (laundering) funds or other property is qualified as complicity under Part 5 of Article 33 of the Criminal Code of the Russian Federation and, accordingly, under Article 174 or Article 174.1 of the Criminal Code of the Russian Federation and in the presence of The reasons for this are under Article 202 of the Criminal Code of the Russian Federation.
25. The sale of property that was obtained as a result of the commission of a crime (for example, theft) by other persons does not constitute legalization (laundering) of funds or other property (Article 174 of the Criminal Code of the Russian Federation), unless such property is given the appearance of being lawfully acquired. Depending on the specific circumstances of the case, these actions may contain elements of a crime providing for liability for theft (in the form of complicity) or a crime under Article 175 of the Criminal Code of the Russian Federation.
26. If a person entered into a purchase and sale agreement for the purpose of legalizing property obtained by him as a result of a crime, and the buyer, realizing this circumstance, acquired this property to give legal ownership, use or disposal to it, then the actions of the buyer must be qualified according to the relevant part Article 174 of the Criminal Code of the Russian Federation, and the actions of the seller - under the relevant part of Article 174.1 of the Criminal Code of the Russian Federation.
27. If, when considering a criminal case charging a person with committing a crime under Article 174 or Article 174.1 of the Criminal Code of the Russian Federation, it is established that property, money and other valuables were obtained as a result of criminal actions or acquired by criminal means, they are in accordance with paragraphs 2 and 2.1 of part 1 of article 81 of the Code of Criminal Procedure of the Russian Federation are recognized as material evidence and, on the basis of paragraph 4 of part 3 of this article, are subject to return to the rightful owner or to the state with the justification for the decision given in the verdict. Chairman of the Supreme Court of the Russian Federation V. Lebedev
Secretary of the Plenum, Judge of the Supreme Court of the Russian Federation V. Demidov
Commentary to Art. 175 of the Criminal Code of the Russian Federation
The object of the crime is the established procedure for the acquisition or sale of property.
The subject of the crime is property obtained by criminal means. In judicial practice, this property usually means things, usually movable (Article 130 of the Civil Code of the Russian Federation). It does not matter as a result of what crime this property was obtained (for example, theft, fraud, extortion). Things withdrawn from legal circulation (precious stones, weapons, narcotic substances, etc.), for actions with which criminal liability is established under special articles (Articles 191, 222, 228, etc., of the Criminal Code of the Russian Federation) cannot be the subject of an act. ).
The objective side of the crime is expressed in actions - the acquisition or sale of property.
Acquisition means the paid or gratuitous receipt of property by any means (purchase, exchange, gift, etc.), while sales means any form of paid or gratuitous transfer of it to third parties. The receipt or transfer of property for temporary storage is not an acquisition or sale.
The acquisition or sale of property known to have been obtained by criminal means must not be promised in advance. In this regard, it is necessary to distinguish such actions from complicity in the theft of property. As the Plenum of the Supreme Court of the USSR explained in paragraph 2 of Resolution No. 11 of July 31, 1962 “On judicial practice in cases of concealment of crimes not promised in advance, acquisition and sale of knowingly stolen property,” the acquisition or sale of property knowingly obtained by criminal means, may be recognized as complicity if these actions were promised to the perpetrator before or during the commission of the crime or for other reasons (for example, due to their systematic commission) gave the perpetrator of the crime grounds to count on such assistance.
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Collection of decisions of the Plenums of the Supreme Court of the USSR. 1924 - 1977. Part 2. M., 1978. P. 285.
The act is completed at the moment of commission of any action specified in the disposition of the article. The corpus delicti is formal. To qualify the act, it does not matter whether the person acquired property obtained by criminal means or just sold it.
The acquisition by a person of property obtained by criminal means, and then its sale, does not form a set of crimes provided for in the relevant parts of Art. 175 of the Criminal Code of the Russian Federation.
The subjective side is characterized by direct intent. The person is aware that he is acquiring or selling property obtained by criminal means and wishes to do so.
Motives and goals are not mandatory elements of a crime. At the same time, this crime is characterized by a selfish motive.
Knowing as a mandatory feature of this crime presupposes the understanding by the perpetrator that the property received or alienated by him was obtained as a result of the commission of a crime. However, this does not mean that this person should be reliably aware of all the circumstances of his criminal acquisition. Thus, the Plenum of the Supreme Court of the USSR, having abolished the Resolutions of the Presidium of the Supreme Court of the RSFSR in the Troyansky case, indicated that Art. 208 of the Criminal Code of the RSFSR (this prohibition is now established by Article 175 of the Criminal Code of the Russian Federation) does not require the perpetrator to be aware of exactly how the property he acquired was obtained through criminal means: it is important that he realizes that the acquired property was obtained through criminal means. In the same decision, the Plenum agreed to the circumstances, including the circumstances of the acquisition of property, the method of its storage, etc., which may indicate the knowledge of the person accused under Art. 208 of the Criminal Code of the RSFSR, on the criminal nature of the acquisition of property.
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Yani P. Illegal entrepreneurship and legalization of criminally acquired property // Legality. 2005. N 3. P. 15.
A special subject of a crime is a sane individual who has reached the age of sixteen years and who did not participate (any type of complicity) in the commission of a crime during which property was obtained.
Qualifying criteria - the commission of an act by a group of persons by prior conspiracy (see Part 2 of Article 35 of the Criminal Code of the Russian Federation and the commentary thereto), the commission of a crime in relation to oil and its products, a car or other property on a large scale.
Petroleum means petroleum in any form, such as crude, fuel. Petroleum product is a finished product obtained from oil refining (synthetic gasoline, diesel fuel, etc.).
Automotive vehicles are wheeled vehicles designed to transport people, goods or equipment installed on them (cars, trucks, buses).
In accordance with the note to Art. 169 of the Criminal Code of the Russian Federation, large size means the value of property that exceeds two hundred and fifty thousand rubles. This size can also be formed by the total cost of several things.
A particularly qualifying feature of the crime under consideration is the commission of an act by an organized group (see Part 3 of Article 35 of the Criminal Code of the Russian Federation and commentary thereto) or by a person using his official position.
Persons using their official position include officials (see the note to Article 285 of the Criminal Code of the Russian Federation and the commentary to it), employees, as well as persons performing managerial functions in commercial and other organizations (see the note to Article 201 of the Criminal Code RF and commentary to it).
If a person has acquired property known to have been obtained by criminal means in order to give it a lawful form of possession, use or disposal, then he is subject to liability under Art. 174 of the Criminal Code of the Russian Federation. If such property is acquired for its use, but later this person carries out its legalization (laundering), then such actions must be qualified according to the totality of crimes provided for in Art. Art. 175 and 174.1 of the Criminal Code of the Russian Federation.
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See: paragraph 26 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 18, 2004 N 23 “On judicial practice in cases of illegal entrepreneurship and legalization (laundering) of funds or other property acquired by criminal means” // Bulletin of the Supreme Court of the Russian Federation. 2005. N 1. P. 2 - 6.
According to established judicial practice, there is no mandatory conviction of the person who committed the main crime as a result of which the property was obtained. The subject of the crime under Art. 175 of the Criminal Code of the Russian Federation can also be held accountable if he acquired such property from persons unidentified by the investigation.
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See: Bulletin of the Supreme Court of the Russian Federation. 1995. N 8.
