RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of July 7, 2015 No. 32

About court practice on cases on legalization (washing) of the money or other property acquired in the criminal way and on acquisition or sale of the property which is obviously got in the criminal way

Legalization (washing) of the money or other property got in the criminal way creates basis of shadow economy, does harm to economic safety and financial stability of the state, complicates disclosure and investigation of crimes, provides opportunity to criminal groups (organizations) to finance and perform illegal, including terrorist, activities.

The international community, aiming to develop effective measures for the prevention of transnational legalization (washing) of the money or other property got in the criminal way accepted number of documents to which conventions of the United Nations on fight against illicit trafficking in drugs and psychotropic substances of December 20, 1988, against transnational organized crime of November 15, 2000, against corruption of October 31, 2003, the convention of the Council of Europe on washing, identification, withdrawal and confiscation of the income from criminal activities of November 8, 1990, about criminal liability for corruption of January 27, 1999 and about washing, identification, withdrawal and confiscation of the income from criminal activities and about financing of terrorism of May 16, 2005 belong. The international community applies standards in the field of counteraction to money laundering of Group of development of financial measures of anti-money laundering (FATF).

In the Russian Federation the legal basis of counteraction to illegal turnover of the criminal income are the Constitution of the Russian Federation, the conventional principles and rules of international law, the international agreements of the Russian Federation, the Federal Law of August 7, 2001 No. 115-FZ "About counteraction of legalization (washing) of income gained in the criminal way and to terrorism financing" and other regulatory legal acts.

1. Draw the attention of courts that subject of the crimes provided by articles 174 and 174.1 Criminal Code of the Russian Federation are not only money or other property which illegal acquisition is sign of specific actus reus (for example, plunders, taking of a bribe), but also the money or other property received as material remuneration for the committed crime (for example, for murder on hiring) or as payment for sale of the objects limited in civil circulation.

At the same time money is understood as cash in currency of the Russian Federation or in foreign currency, and also non-cash, including electronic money, as other property - personal and real estate, property rights, documentary and bank entry securities, and also the property received as a result of conversion of the property acquired in the criminal way or as a result of crime execution (for example, the real estate object constructed of the building materials acquired in the criminal way).

3. When mixing of not having individual and certain signs of the money or other property acquired in the criminal way (as a result of crime execution), with homogeneous lawful the acquired property (for example, in case of transfer on the bank account of money from different sources) the subsequent making of financial transactions or transactions with such property is subject to qualification under Article 174 or article 174.1 Criminal Code of the Russian Federation in the amount of, corresponding to the cash amount or cost of other property acquired in the criminal way (as a result of crime execution).

conviction on the case of the specific crime provided by one of Articles of the Special part of the Criminal Code of the Russian Federation (about the main crime);

the resolution of body of preliminary inquiry or court on the termination of criminal case (criminal prosecution) for making of the main crime in connection with the death of person who is subject to criminal prosecution in connection with not achievement of criminal liability by person of age, in connection with the expiration of prescriptive limits of criminal prosecution, in cases, stipulated in Item 6 parts 1 of article 24 Code of Criminal Procedure of the Russian Federation, in connection with conciliation of the parties, owing to the act of amnesty, in connection with active repentance, and also on the bases, stipulated in Article 25.1 or article 28.1 Code of Criminal Procedure of the Russian Federation if the criminal case file contains the proofs testimonial of availability of event and structure of the main crime, and the body of preliminary inquiry or court give them the corresponding assessment;

the resolution of body of preliminary inquiry on suspension of inquiry or pretrial investigation in connection with not establishment at the time of consideration of criminal case of person which is subject to attraction as the person accused for the main crime if the criminal case file contains the proofs testimonial of availability of event and structure of such crime, and the body of preliminary inquiry gives them the corresponding assessment.

5. Draw the attention of courts that in descriptive and motivation part of the judgment on cases on accusation in making of crimes, stipulated in Article 174 or article 174.1 Criminal Code of the Russian Federation, proofs on which conclusion of court that money or other property were acquired in the criminal way (as a result of crime execution), and also that there is purpose of giving of lawful type to ownership, use and the order of such money or other property is based shall be provided.

6. For the purposes of articles 174 and 174.1 Criminal Code of the Russian Federation any transactions with money (cash and clearing settlements, cash transactions, transfer or exchange of money, exchange of one currency for another, etc.) can be understood as financial transactions.

The actions directed to establishment, change or the termination of the civil laws and obligations can be referred to transactions as to sign of the specified crimes, and it is equal on creation of visibility of origin or transition of the civil laws and obligations.

At the same time, in law sense, the specified financial transactions and transactions obviously for the guilty person mask communication of legalizuyemy property with criminal source of its origin (the main crime).

7. Responsibility under Article 174 or article 174.1 Criminal Code of the Russian Federation comes also when making one financial transaction or the transaction with the money or other property acquired in the criminal way (as a result of crime execution) if it is determined that such act was made for the purpose of giving of lawful type to ownership, use and the order by the specified money or other property (for example, the conclusion of the purchase and sale agreement of real estate object which criminal acquisition masks obviously false documents on the property right to this object).

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