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November 23, 2021
The illegality of the revocation of the license from KB Platina was confirmed by the expert legal center "Financial Investigations and Forensic Examinations"Selected quotes from the conclusions
In the course of this study, it was established that, based on the results of an audit of the activities of LLC CB PLATINA (hereinafter referred to as the Bank) for the period 02/01/2020 to 07/01/2021, the Bank of Russia Working Group did not identify any facts of failure to send messages to Rosfinmonitoring on transactions with cash or other property, subject to mandatory control provided for in Article 6 of Federal Law No. 115-FZ, violation of the deadlines for sending electronic messages to Rosfinmonitoring, "rejection" of messages by Rosfinmonitoring due to technical errors in filling out the electronic message forms by the bank, "replacements", as well as "deletions" previously sent to Rosfinmonitoring Messages.
The Bank of Russia confirms that the qualifications of the responsible officer and employees of the AML / CFT / FROMU subdivision meet the requirements of paragraph 12, clause 2, article 7 of Federal Law No. 115-FZ, as well as the compliance of Platina Bank with the requirements of federal legislation for training and knowledge testing in terms of financial monitoring.
Conclusion
In accordance with Order No.OD-1938 dated September 17, 2021, the revocation of the license from KB Platina LLC was carried out by the Bank of Russia with reference to Article 19, Clauses 6 and 6.1 of Part One of the Federal Law “On Banks and Banking Activities”. Thus, the Bank of Russia applies the articles of the law that provide for its right, and not the obligation to revoke the license. However, taking into account the insignificance of violations, their technical nature specialists believe that there were clearly not enough grounds for applying an extreme measure of influence to the bank - revoking the license in terms of the indicated violations. Thus,decision of the Bank of Russia regarding the revocation of the license from CB Platina LLC on the basis of clause 7.2 of Federal Law No. 115-FZ does not comply with current legislation.
SPECIALIST'S CONCLUSION 02/11/21
according to the results of economic and legal research
Moscow «22» november 2021
Table of contents
Question 1. Reasonableness of referring LLC KB PLATINA to the 3rd classification group as of 08.04.2021
Question 4. The Bank of Russia issued an order from 13.09.2021 36-10-4-1/11242???
Conclusions
Question 1. Reasonableness of referring LLC KB PLATINA to the 3rd classification group as of 08.04.2021.
Conclusions on question 1
the validity of referring LLC KB PLATINA to the 3rd classification group (as of 04/08/2021)
1. The position stated by the Bank of Russia in a letter to LLC CB PLATINA dated 08.04.2021 No. 36-10-4-1 / 3808DSP - “the bank serves and has contractual relations with foreign payment service providers Cauri LTD (Great Britain) and SIA Royal Pay Europe "(Latvia), through which non-transparent acquiring operations are carried out aimed at ensuring settlements of individuals with illegal online casinos and bookmakers ...." is unreasonable, since no transactions were carried out with SIA Royal Pay Europe (Latvia )1, the account was closed on 10.08.2020, Cauri LTD (Great Britain) is not a foreign provider of payment services for LLC CB PLATINA (money transfer operator) , no acquiring agreement was concluded with Cauri LTD.
2. According to the data presented for the study on payments by Cauri LTD , it is not possible to conclude that they are aimed “to ensure settlements of individuals with illegal online casinos and bookmakers…. ”, Cauri LTD's account with the Bank was closed on 21.04.2021.
3. As a result of a study of the functioning of the internal control system in order to counteract the legalization (laundering) of proceeds from crime and the financing of terrorism on the example of Cauri LTD, it was established that the Bank acted in accordance with the Internal Control Rules: it carried out customer identification, regularly, at least once in updated the obtained data for a year, assigned an increased risk level. At the same time, control methods were applied to the client, including methods of automated control of transactions, the compliance with the criteria for unusual transactions, including those related to splitting operations, as well as the established limits was checked. Consequently, the internal control system in order to counter the legalization (laundering) of proceeds from crime and the financing of terrorism makes it possible to pay special attention to the operations of clients with an increased degree (level) of risk and to ensure documentary recording of information in accordance with the requirements of the Federal Law of August 7, 2001 115-?? “On Counteracting Legalization (Laundering) of Criminally Obtained Incomes and Financing of Terrorism (by the example of Cauri LTD).
4. The Bank of Russia, when evaluating the operations of Cauri LTD, as well as other companies investigated as part of the audit of LLC CB PLATINA, uses criteria for "opaque" operations not listed in regulatory documents of the Bank of Russia, not published in open sources (website of the Bank of Russia), not clearly interpreted in the Bank's Inspection Acts.
5. There is clearly a contradiction in the logic of the Bank of Russia to the assessment of the Bank's compliance with the requirements of Federal Law No. 115-FZ of August 7, 2001, when answering questions 11 and 12: the answer was given to question 11 that the internal control system in order to counter the legalization (laundering) of income obtained by criminal means and the financing of terrorism "partially, partially, in some cases" allows you to pay increased attention to the operations of clients with an increased degree (level) of risk and ensure documentary recording of information in accordance with the requirements of Federal Law No. 115-FZ, while in the answer to question 12, it is indicated that the rules of internal control in order to counter the legalization (laundering) of proceeds from crime and the financing of terrorism are “observed at all times” (1 point).
6. Based on the results of the Meeting at the Bank of Russia dated 06/08/2018, the Bank sent to the Bank of Russia information on the clients of Cauri LTD and SIA "Royal Pay Europe", however, subsequently, the Bank of Russia did not receive any demands or any recommendations to terminate the Bank's cooperation with these companies. therefore, these clients and their operations were not considered by the Bank of Russia as "opaque".
7. The adoption by the Bank of Russia of an unjustified decision to classify LLC CB PLATINA into classification group 3 resulted in an increase in the rate of insurance premiums to the compulsory deposit insurance fund from 0.10% to 0.40% for the Bank, as a result of which negative financial consequences for the Bank amounted to 1,090,251 rub.
Question 2. The nature and scale of violations by LLC CB PLATINA of the requirements of the Federal Law dated June 27, 2011 No. 161-FZ "On the National Payment System"
Conclusions on issue 2
the nature and scale of violations by the Bank
of the requirements of Federal Law No. 161-FZ
1. The Bank's failure to comply with the requirements of Part 4 of Article 9 of Federal Law No. 161-FZ is formal and sporadic, since the Bank did not inform only one client at his personal request - the owner of the Bank and the Chairman of the Board of Directors. Thus, in the absence of any complaints from customers about not informing, this fact cannot be considered as a violation of Federal Law No. 161-FZ by the Bank.
2. During the audit of the Bank of Russia and prior to the issuance of an order by the Bank of Russia, the Bank eliminated the violation of the requirements of Part 3 of Article 30.5 of Federal Law No. 161-FZ: the software was updated and the MIR card was successfully tested by Maestro issuer Gazprombank JSC. As follows from the Act of the Bank of Russia, the specified case of the Bank's failure to ensure the acceptance of national payment instruments was of a single nature, no other facts established by the working group of the Bank of Russia or customer complaints about the Bank's failure to conduct transactions with bank cards were identified.
3. Technical error by the Bank on the first (and only) filling reporting forms 0403232 regarding the code of the type of information exchange services (filled with "2" instead of "1"), is a one-time and random, committed within the limits of the restrictions associated with quarantine measures taken in connection with Covid-19, and cannot qualify as any material violation of the requirements of the Ordinance of the Bank of Russia dated April 6, 2020 N 5429-U. The replacement of reporting was sent by the Bank on 02.09.2021 - within the timeframe established by the Order of the Bank of Russia dated 25.08.2021 No. 45-51 / 14061DSP.
4. The volume of violations by the Bank of the requirements of Part 5 of Article 5 of Federal Law No. 161-FZ (on making payments within no more than 3 days) was negligible2 both in terms of quantity (0, 2%) and by amount (0.0001%). At the same time, on the CyberPlat® website, for a long time, including during the period of detected violations, a service for checking the successful completion of the payment by the client has been in effect. The bank also strengthened control over the payment service provider: it indicated the need to strengthen work with personnel, as well as the responsibility of the bank payment agent provided for by the Federal Law and the Rules for the provision of payment services using the CyberPlat® system.
5. Despite the fact that the nature and scale of violations by the Bank of the requirements of Federal Law No. 161-FZ was insignificant, the deficiencies identified were eliminated during the audit by the Bank of Russia LLC CB PLATINA issued an order to eliminate violations of the requirements of Federal Law No. 161-FZ (No. 45-51 / 4061 DSP dated 25.08.2021), and then a second order for the same violations, not recognizing their fulfillment by the Bank in full (No. 45-51 / 4411DSP dated 09/10/2021). Subsequently, instructions on the same issues were calculated for two different and are indicated in the Order to revoke the Bank's license as “repeated application of measures during the year stipulated by the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)".
Question 3. The nature and scale of violations committed by the Bank, identified during the Bank of Russia verification of the use of information technologies by LLC CB PLATINA and verification of the Bank's compliance requirements for ensuring the protection of information when making money transfers.
Conclusions for question 3
The nature and scale of violations committed by the Bank in terms of the use of information technologies and verification of the Bank's compliance with information security requirements when making money transfers.
Due to the fact that the errors identified were extremely minor and have been completely eliminated The Bank during the audit of the Bank of Russia, and also did not affect the activities of the Bank and the CyberPlat® system and did not lead to a breach of information security and the occurrence of events related to a breach of information security, the nature and scale of violations committed by the Bank is assessed as extremely insignificant , in this connection it seems unreasonable that the Bank of Russia issued Prescription No. 56-23 / 817DSP dated 09/07/2021, which was subsequently also taken into account (as a separate prescription) in the Order to revoke the Bank's license as “repeated application during the year of measures provided for by the Federal Law“ On the Central Bank of the Russian Federation (Bank of Russia)”.
Question 4. Issuance by the Bank of Russia of an order of 13.09.2021 No. 36-10-4-1 / 11242DSP
Conclusions for question 4
issuance by the Bank of Russia of an order dated September 13, 2021 No. 36-10-4-1 / 11242DSP
Minor violation by the Bank of the reporting procedure according to reporting form 0409251 " Information about customer accounts and payments made through a credit institution (its branch) "led to the issuance by the Bank of Russia on 13.09.2021, that is, immediately before the date of revocation of the license (17.09 ... measures stipulated by the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)".
Conclusions
1. The position stated by the Bank of Russia in a letter to LLC CB PLATINA dated 08.04.2021 No. 36-10-4-1 / 3808DSP - “the bank serves and has contractual relations with foreign payment service providers Cauri LTD (Great Britain) and SIA Royal Pay Europe "(Latvia), through which opaque acquiring operations are carried out aimed at ensuring settlements of individuals with illegal online casinos and bookmakers ...." is unreasonable because:
- no transactions were carried out with SIA "Royal Pay Europe "3, the account was closed on 10.08.2020;
- Cauri LTD is not a foreign provider of payment services for CB PLATINA LLC (money transfer operator), no acquiring agreement was concluded with Cauri LTD;
- based on the data on Cauri LTD payments submitted for the study, it is not possible to conclude that they are aimed "at ensuring settlements of individuals with illegal online casinos and bookmakers ...", Cauri LTD's account in the Bank was closed on 21.04.2021
2. The internal control system in order to counter the legalization (laundering) of proceeds from crime and the financing of terrorism allows paying increased attention to the operations of clients with an increased degree (level) of risk and ensuring documentary recording of information in accordance with the requirements of Federal Law No. 115- dated 07.08.2001 Federal Law "On Counteracting Legalization (Laundering) of Criminally Obtained Incomes and Financing of Terrorism" (by the example of Cauri LTD).
3. Bank of Russia when evaluating the operations of Cauri LTD, as well as other companies studied as part of the audit by LLC CB PLATINA, uses the criteria of" opaque "operations not listed in the regulations of the Bank of Russia, not published in open sources (on the Internet), not clearly interpreted in the Bank's Inspection Acts.
4. There is a clear contradiction in the logic of the Bank of Russia to the assessment of the Bank's compliance with the requirements of Federal Law No. 115-FZ of August 7, 2001 when answering questions 11 and 12: to question 11, the answer was given that the system of internal control in order to combat the legalization (laundering) of proceeds from crime and the financing of terrorism "partially, partially, in some cases" allows to pay increased attention to the transactions of clients with an increased level risk and ensure the documentary recording of information in accordance with the requirements of Federal Law No. 115-FZ, while the answer to question 12 indicates that the rules of internal control in order to counter the legalization (laundering) of proceeds from crime and the financing of terrorism “are constantly observed "(1 point).
5. Based on the results of the Meeting at the Bank of Russia dated 06/08/2018, the Bank sent to the Bank of Russia information on the clients of Cauri LTD and SIA "Royal Pay Europe", however, subsequently, the Bank of Russia did not receive any demands or any recommendations to terminate the Bank's cooperation with these companies. therefore, these clients and their operations were not considered by the Bank of Russia as "opaque".
6. The adoption by the Bank of Russia of an unjustified decision to classify LLC CB PLATINA into classification group 3 resulted in an increase in the rate of insurance premiums to the compulsory deposit insurance fund from 0.10% to 0.40% for the Bank, as a result of which negative financial consequences for the Bank amounted to 1,090,251 rub. (1 453 668 - 363 417).
7. The nature and scope of the requirements of Federal Law No. 161-FZ violated by the Bank are insignificant and formal, violations were eliminated during the Bank of Russia audit or following its results:
- The Bank's failure to comply with the requirements of Part 4 of Article 9 of Federal Law No. 161-FZ is formal and sporadic, since the Bank did not inform only one client at his personal request - the owner of the Bank and the Chairman of the Board of Directors. Thus, in the absence of other identified cases of violations and customer complaints about not informing, this fact should not be considered as a violation of Federal Law No. 161-FZ by the Bank;
- During the audit of the Bank of Russia and before the issuance of an order by the Bank of Russia, the Bank had already eliminated technical problems that prevented the withdrawal of cash from the MIR Maestro card at the ATM of LLC CB PLATINA (eliminated the violation of the requirements of Part 3 of Article 30.5 Federal Law No. 161-FZ). The indicated case of the Bank's failure to ensure the acceptance of national payment instruments was of an isolated nature, no other facts established by the working group of the Bank of Russia or customer complaints about the Bank's failure to conduct transactions with bank cards have been identified;
- A technical error made by the Bank during the first (and only) filling out of the reporting form 0403232 in the part of the code of the type of information exchange services (filled in “2 ", Instead of" 1 "), is a one-time and accidental, committed during the period of validity of restrictions related to quarantine measures taken in connection with Covid-19, and cannot qualify as any material violation of the requirements of the Ordinance of the Bank of Russia dated April 6, 2020 No. 5429-U;
- The volume of violations by the Bank of the requirements of Part 5 of Article 5 of Federal Law No. 161-FZ (on making payments within 3 days) was negligible in terms of Payment agents who committed a violation (0.2%) and by the amount (0.0001%). At the same time, the CyberPlat® website has a service for checking a successful completion of the payment. The Bank also strengthened control over the Payment Agent: it indicated the need to strengthen work with personnel, as well as the responsibility of the bank payment agent provided for by the Federal Law and the Rules for Provision of Payment Services Using the CyberPlat System.
8. All Orders were issued by the Bank of Russia within 19 days immediately before the license was revoked (from 25.08.2021 to 13.09.2021):
- An order to eliminate violations of the requirements of Federal Law No. 161-FZ (No. 45-51 / 4061DSP dated 08.25.2021), and then a second order for the same violations (No. 45-51 / 4411DSP dated 09.10.2021) subsequently < span style="background-color:#ffff00; padding:3px">calculated for two different and indicated in the Order to revoke the Bank's license as Federation (Bank of Russia) ";
- Due to the fact that the identified errors were extremely insignificant and were completely eliminated by the Bank during the Bank of Russia audit, and also did not affect on the activities of the Bank and the CyberPlat® system, and did not lead to a breach of information security and the occurrence of events related to a breach of information protection, the nature and scale of violations committed by the Bank is assessed as extremely insignificant, in connection with which it appears that the Bank of Russia issued prescription No. 56-23 / 817DSP dated 09/07/2021 unreasonable, which was subsequently also taken into account (as a separate instruction) in the Order to revoke the Bank's license as “repeated application during the year of measures provided for by the Federal Law“ On the Central Bank of the Russian Federation (Bank of Russia) ”;
- Minor violation of the reporting procedure according to reporting form 0409251 "Information about customer accounts and payments made through a credit institution (its branch)" resulted in issuing by the Bank of Russia on 09/13/2021, that is, immediately before the date of license revocation (09/17/2021), another order (requiring payment of a fine of RUB 30,000 .), which, nevertheless, is also taken into account (as an additional prescription) in the Order to revoke the Bank's license as “repeated application during the year of measures provided for by the Federal Law“ On the Central Bank of the Russian Federation (Bank of Russia) ” .
Thus, the decision of the Bank of Russia to revoke the license of the LLC "CB PLATINA" (Order dated 17.092021 No. OD-1938) due to the failure of LLC "CB PLATINA" to comply with federal laws governing banking activities and regulations of the Bank of Russia, do not comply with applicable law.
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