In accordance with the provisions of the National Security Concept of the Russian Federation, one of the priority areas of the state’s activity is counteraction to criminal phenomena. It involves the consolidation of the efforts of the authorities and society, a sharp reduction in the socio-political and economic basis of illegal processes, the development of an integrated system of methods and means of a legal and other nature for the suppression of offenses and crimes, ensuring the protection of the interests of the individual, state and society. In this area, prepared and committed acts to launder (legalize) the proceeds of crime, the financing of terrorism are suppressed, and measures are taken to respond to unlawful acts already committed. The work of law enforcement agencies in this area is regulated by the standards 115-FZ of 08/07/2001. In Art. 1-3, general provisions are given that fix the scope of the legal act, the terms used in it. Let's consider some norms of this law.
Terminology
Definitions of concepts are given in Art. 3 115-FZ. An explanation of the terms is necessary for a correct understanding of the rules, elimination of their incorrect interpretation.
The proceeds of crime are money or other property received as a result of the commission of an unlawful act. In this case, the key aspect is the fact of the crime. The fact is that citizens who evade the fulfillment of tax obligations are not criminals (in the classical sense), since they receive their income in a legal way. A sense of ownership prevents them from parting with part of their profits.
The second paragraph of article 3 of the normative act under review sets out the composition of assets to which the legislation on combating the laundering of proceeds of crime is applicable. In this case, the provisions of 115-FZ and Art. 2 (paragraphs "a" and "b") of the Strasbourg Convention. In it, the proceeds of crime are any property (immaterial and material, immovable and movable) expressed in things or rights or representing documents and acts certifying the right to such material values.
Analysis of 115-FZ (Articles 1-3 in particular) indicates that the legislator considers criminal proceeds in the narrow sense, since it refers exclusively to cash or other property. Here, however, the provisions of the Civil Code should be taken into account. When applying the standards 115-FZ Art. 128 of the Code provides a more complete understanding of the term "other property", since it contains its composition. According to the norm, they understand things, securities, money, property rights, products of intellectual labor and means of individualization, equated to them, as well as intangible goods.
The definition of income legalization given in 115-FZ and Art. 174.1 of the Criminal Code, are similar. The Code states that the laundering of money or other property obtained by criminal means the implementation of financial transactions, the conclusion of transactions with values resulting from the commission of crimes, other than those provided for in Articles 193, 194, 198-199.2, or the use of values for conducting economic (including entrepreneurial) activities.
If we compare the definitions given in Federal Law 115-FZ and Art. 174.1 of the Criminal Code, the first regulatory act provides a more comprehensive interpretation of concepts.
Countermeasures against money laundering
About them it is spoken in Art. 4 115-FZ. Among the countermeasures in the first place is a mandatory internal control. The procedures that make up it are aimed at identifying transactions carried out by individuals, organizations that legalize criminal proceeds or finance terrorism.
The conclusion of transactions with a large number of links that are unjustified from an economic point of view, gives reason to believe that they are bypassing the law.
Internal control involves the recording and subsequent storage of information about all operations (date, place, time, basis, amount, etc.), their participants. The presence of such information databases allows you to quickly restore transaction data.
The content of internal control, of course, is not limited only to identification and identification. The full list of procedures and the procedure for their implementation is established in the Rules, which, in accordance with paragraph 2 of Art. 7 115-, must be approved by organizations engaged in operations with money and other property.
List of competent organizations
It is fixed in Art. 5 115-FZ. The list includes organizations authorized to make financial transactions. Among them are credit structures, which are divided into banking and non-banking. Their difference lies in the scope of authority.
The Bank is entitled to perform the following operations:
- Raising funds of organizations and individuals in deposits.
- Placement of money on its own behalf, at its own expense on the terms of urgency, payment and repayment.
- Opening and maintenance of accounts of citizens and organizations.
In addition, the bank may issue, acquire, sell, record, store securities used as payment documents or confirming the attraction of funds to accounts and deposits.
Non-bank credit structures have the right to perform certain banking operations, the list of which is fixed in the Federal Law No. 395-1.
Among the organizations authorized to conduct transactions with money and other property, there are structures that are not credit, but accept cash from citizens and legal entities in the cases established in Federal Law No. 395-1.
Important point
The current legislation contains rules prescribing to make the main payments of legal entities through credit institutions - banks. Despite the fact that 88- has expanded the list of entities obliged to control the movement of funds and property, the main responsibility for suppressing the legalization of criminal income lies with credit institutions. In this regard, the presence in this list of real estate companies that provide intermediary services in transactions related to the alienation of real estate does not relieve banks of the obligation to identify transactions provided for in paragraph 1.1 of Art. 6 115-FZ.
The Central Bank is entitled to revoke a license from a credit institution in case of repeated violation (within one year) of the requirements established by Federal Law No. 115.
In the list, secured by Art. 5 115-, the following organizations are also indicated:
- Brokers.
- Insurance companies.
- Pawnshops.
- Bookmakers and sweepstakes.
- Companies managing investment or pension non-government funds.
- Operators accepting payments.
- Financial agents licensed to conduct financial activities.
Rights and obligations of competent authorities
They are secured by Art. 7 115-FZ. In this norm, special attention is paid to restrictions for organizations engaged in operations with money and other valuables. Failure to comply with the requirements enshrined in the article may lead to the application of administrative, criminal, civil liability with respect to guilty measures.
The key responsibility of the competent structures is the verification of clients who perform transactions with values to identify facts of money laundering. It should be carried out at all stages of the movement of property and cash. The most important role in this is played by the identification of entities served by these organizations. According to Art. 7 of the Law 115-, the competent structures are obliged to receive information not only about the persons with whom an agreement has already been concluded, but also about potential customers, that is, before the formalization of their legal relations.
Identification involves the collection and analysis of the following information about individuals:
- FULL NAME.
- Citizenship.
- Details of a passport or other document proving his identity.
- Information from the migration card.
- Address of residence (registration) or place of stay.
- TIN (if available).
The following information is collected about legal entities:
- Name.
- TIN or code of a foreign legal entity.
- State registration number.
- Yuradres or location.
All of this information should be checked for reliability and completeness.
The procedure for identifying, storing and analyzing data is enshrined in the Internal Control Rules.
Exceptions
In Federal Law No. 115, cases are fixed where credit structures may not carry out identification. In relation to individuals, it is not carried out with:
- the performance by competent organizations of operations to receive payments from citizens in the amount of not more than 15 thousand rubles. or the amount in foreign currency equivalent to 15 thousand rubles;
- conducting settlement operations with budgets of all levels;
- payment for services provided by budget organizations subordinate to the executive bodies of federal, regional and territorial authorities;
- payment for housing, utilities, for the protection of apartments and the installation of security alarms, as well as communication services;
- payment of alimony;
- deduction of contributions by members of summer, gardening, horticultural non-profit associations, GSK, as well as when paying for parking lots.
This list is not subject to extended interpretation.
Since the entry into force of 121-FZ, the ability to not identify an entity is canceled if it has previously been identified by a credit institution.
Innovations in the Federal Law No. 115
The new version of the Law adopted in 2018 contains art. 7.3. This norm lays down the obligations of credit institutions that carry out operations with money and other property when applying for services, as well as in the process of servicing public foreign officials. This article is introduced in addition to the provisions of paragraph 1 of Art. 7 115-FZ.
These structures, according to the norm, are required:
- Take reasonable and possible measures to identify public foreign officials.
- To accept the service of these entities exclusively in accordance with a written decision of the head of the organization authorized to conduct operations with monetary and other values, his deputy or the head of a separate division of the credit institution.
- Take possible and reasonable measures to establish the sources of material assets of public foreign officials.
- Regularly update the available information about these entities.
- Increased attention should be paid to operations performed not only by public foreign officials, but also by their relatives, including adoptive parents, adopted children, and also third parties on their behalf.
The inclusion of Art. 7.3 in 115- is determined by the tense international situation and the desire of the country's leadership to protect the economy from negative impact. The inclusion of a norm in the considered normative act is crucial for the implementation of the concept of national security of the Russian Federation. The provisions of the norm correspond to the state policy in the field of combating money laundering, since it fixes measures that prevent undesirable actions of foreign persons.
Nuance
There is another Law with the same number as the normative act in question - 115- dated 25.07.2002. In Art. 4, the foundations of the legal status of foreigners in Russia are fixed. This Law is in no way connected with the considered normative act and the sphere of combating money laundering. In the process of enforcement, this nuance must be taken into account.
Responsibility for failure to comply with the provisions of 115-FZ
In Art. Section 13 of the Law establishes administrative measures to ensure the protection of the financial and public law interests of the state.
According to the norm, a violation of the rules for transactions with tangible assets by credit institutions, leasing and insurance organizations, postal services, pawnshops, bookmakers and other entities specified in the commented regulatory act entails the cancellation (revocation) of their license.
The revocation of an authorization document is a decision that is taken by the authorized body on the grounds and in the manner provided for in federal law. The cancellation of a license does not entail the termination of the person’s work, but only the prohibition of certain types of operations. Revocation of a permit is an exceptional measure of impact.
The considered normative act establishes that the competent organizations performing operations with material assets must document and provide information to the regulatory authorities no later than the day following the date of the corresponding operation (Article 7, part one, paragraph 4). According to Art. 13 115-, violation of the established period shall entail revocation of the license.
The law, however, provides for the possibility not to send information to authorized bodies. It can be used by employees of competent structures that carry out internal control procedures if they suspect that their clients are conducting transactions to legalize criminal proceeds. In such situations, of course, the application of measures of responsibility becomes extremely difficult.
The body with the right to revoke licenses from credit institutions that violate the law in the field of combating money laundering is the Central Bank. This authority complies with FATF Recommendations No. 17, 23, 29. They established that states should ensure the application of proportional, effective deterrent measures of a criminal, civil, administrative nature in case of revealing the facts of non-compliance with regulatory requirements. According to the Recommendations, countries should ensure that credit institutions disseminate adequate methods of supervision and regulation. The competent authorities should take the necessary legal or regulatory measures to prevent criminals or their accomplices from gaining control or significant blocks of shares, managerial positions in financial institutions.
The supervisory authorities, in turn, should have sufficient authority to monitor and control compliance by entities with the requirements of the law in the field of combating money laundering and the financing of terrorism. They should be empowered to conduct inspections, require the provision of any information from financial institutions necessary for monitoring, and apply adequate administrative penalties for non-compliance with regulations.
In international conventions ratified by the Russian Federation, it is established that participating countries ensure the application of proportionate, effective civil, criminal, or administrative measures of a restraining nature, taking into account the danger of a crime to legal entities and citizens. The adoption by the Central Bank of a decision to revoke a license from a credit institution in accordance with Art. 13 115- is accompanied by a comprehensive analysis of its work not only to identify violations of federal law, but also to determine the number (volume) of operations performed, the presence / absence of factors that threaten the interests of depositors and creditors, and the stability of the entire banking system of the country.
General license revocation rules
The corresponding decision is subject to publication in the official publication "Vestnik Bank of Russia" within a week from the date of its adoption. It takes effect from the moment of its removal. The legislation establishes the right of interested parties to challenge a decision within a month from the date of its publication. The fact of appeal, as well as the application of measures to ensure claims do not suspend the execution of the decision.
Additional exposure
In accordance with the letter of the Central Bank No. 98-T of 2005 and methodological recommendations No. 59 of 1997, the territorial divisions of the Central Bank are entitled to apply to entities that do not comply with the requirements of legislation in the field of money laundering:
- Requirements for the elimination of identified violations.
- Cash collection. Their sizes are established by the Federal Law "On the Central Bank of the Russian Federation".
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Conclusion
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