Publication date: 31.05.2024
lawyer, 23 years of experience in enforcement.
The responsibility of financial supervision has increased many times as a result of the beginning of a large-scale conflict. On the one hand, banks must comply with the requirements of the law in order to avoid "lawful measures of influence", on the other - to create internal systems that do not allow customers to avoid their obligations at the direction of a particular bank. Sometimes this is difficult to do because of the obvious: remember the year 2022, when banks were required to manually enter lists of sanctioned persons into their systems according to the decisions of the National Security Council.
The seriousness of the problem regarding Finmon is demonstrated by the removal of two banks from the market due to the desire to systematically violate provisions on the prevention and countering of the legalization of income (laundering).
Last year's final results showed that fines related to currency regulation and financial crimes totaled approximately $300 million. In March of this year, the National Bank already initiated new mechanisms of influence (fines) against two banks for financial failures in the field of financial monitoring.
According to the plan of the National Bank of Ukraine, this year, among other things, on-site inspections of issues of financial supervision, compliance with the requirements of currency and legislation regarding sanctions at "OTP Bank", "Bank Credit Dnipro", "Bank Vostok", insurance company "Nadyina" and "NovaPay ". This strategy is derived from a risk-oriented philosophy.
It is obvious that financial monitoring is of crucial importance for the work of banks. If we take into account the actions of the State Monitoring of Ukraine regarding finances, which receives reports on financial transactions (threshold and suspicious) and transfers materials to law enforcement agencies, then it is obvious that sooner or later the financial monitoring will reach all of us.
What is evaluated?
- - For legal entities, the finmon process involves the identification of the following points: legal identification and verification of the subject, the purpose and nature of the financial relationship, the relevance of the financial information of the other party in relation to it, the relevance of the received data and the constant monitoring of relationships and finances.
- - For individuals, the subjects of primary financial control are: surname, first name, patronymic, date of birth, unique financial transaction number, account number.
These are general links that you can use to follow. Next, if someone is identified as a politically significant figure (PEP), has ties to Russia, or exceeds their financial means, a different narrative begins.
As a result, the poles and satellites are in the field of view, which are financially suspicious.
Threshold financial transactions, the volume of which must be equal to or exceed 400,000 UAH, are considered an official problem (Article 20 of the Law "On Prevention and Counteraction of Legalization (Laundering) of Proceeds of Crime, Financing of Terrorism and Proliferation of Weapons of Mass
Distribution". destruction). In addition, one or more of the following conditions must be present:
- - at least one party is registered as a participant in a financial transaction located in a toxic jurisdiction (Russia, Iran, North Korea). A record of political transactions that are significant to the economy and/or the family, as well as those related to the PEP, are taken into account.
- - the process of paying someone to transfer money to other countries, including offshore areas,
- - cash transactions involving the exchange of money for others (deposit, transfer, receiving money);
Conducting everyday affairs on the Internet is now possible for everyone, including residents of e-residences.
Dividing the maximum amount into parts in order to avoid regulation may not always be profitable, the information has already been summarized and analyzed by the bank.
Attribution of suspicious transactions regarding finances is considered a more complex and creative process. And this is where annoying mistakes can occur. Art. 21 of the Law: financial transactions carried out or attempted to be carried out, regardless of the monetary value of the transactions, are recognized as suspicious if the subject of primary financial monitoring has sufficient grounds to suspect that they are the result of criminal activity or are related to it. related to or related to terrorism, the proliferation of weapons of mass destruction.
The most interesting thing is that in order to establish suspicion, first of all, the results of typological studies, as well as the recommendations of specialized experts of state financial monitoring should be taken into account. The total transaction amount is not taken into account here.
Regulatory base of bankers:
Today, the main laws regulating the banking sector and financial institutions were adopted by the NBU in 2023. This is the resolution of the National Bank of Ukraine No. 26 "On the disclosure of information about clients' relations with the state that carries out violent aggression." against Ukraine", which is dated March 16, 2023, requires clients to show their involvement with the state, and Resolution No. 65 "On approval of the Regulation on the application of special economic and other punishment measures (sanctions)" dated May 11. , 2023, which describes the procedure for applying sanctions.
Changes to this resolution entered into force on January 1, 2024 (NBU Resolution No. 188). In particular, they require banks to provide the National Bank with information on the presence or absence of clients related to Russia by the 10th of the month following the reporting period.
If these customers are recognized, banks must describe these associations in detail. Previously, this information was recorded in the banks, and they transferred it at the request of the NBU.
Other important indicators (PIP) will also undergo changes this year - the National Bank of Ukraine reacted to the changes to the Law of Ukraine on prevention and countermeasures against legalization (laundering) of proceeds of crime, financing of terrorism and weapons proliferation. of Mass Destruction (Law No. 3419-IX), which stipulates that the PEP condition is lifelong.
In addition, primary financial institutions should adopt a risk-based approach when developing and maintaining business relationships with a public figure.
Resolution No. 198 of the National Bank of Ukraine of December 29, 2023 established a special "term of validity" of the PER's status as a public function: if more than 12 months have passed since the end of the PER's duties as a public person, and the subject of the primary financial investigation established that this the person no longer has the necessary risk of REP, as well as other dangers, he will not take certain actions provided for by the Law "On Prevention and Combating Legalization" (Laundering) of Income.
In order to make such a decision, the financial institution must analyze the financial transactions of the public figure, his family members and other related persons, all of whom should have ceased their public duties at the time of the decision.
How to prepare for the final exam.
First, thanks to the various official data sets, it is possible to check the information regarding the financial monitoring of a company or an individual. If specific issues have already been mentioned in them, it is important, at least, to pay attention to them together with the company's lawyer and accountant.
In addition, it is very important to carefully study the sanctions lists of your counterparties. Separately, I want to draw attention to the check, which, as they say, is retrospective. That is, you had a normal double three years ago, but now the relationship is unreliable due to the fact that actions in the temporarily occupied territories continue, or their benefactor is now on sanctions lists. As a result, there is an opportunity to consider your business relationships from a new perspective.
Specialists of the legal service "Consultant" will provide legal services for business and help in such matters as preparation of a claim to a debtor, preparation of the contract, contract preparation , counterparty verification, claim to the debtor, demand to the debtor, and support at all necessary stages to resolve the relevant issue.
