OP 22 October, 2024 - 08:11 PM
The court pointed out that registration on a cryptocurrency exchange and issuing a card to a third party, to which the victim's funds were received and then transferred to exchange users, do not indicate intentional complicity in fraud.
In a commentary to AG, one of the defense attorneys shared that the most difficult thing was to convey to the court how the crypto platform works and what p2p arbitration is. Another believed that the adopted judicial act on the innocence of the defendants once again proves that the principle of adversarial proceedings exists and is successfully applied in practice.
As AG learned, on September 27, the Dimitrovgrad City Court of the Ulyanovsk Region issued an acquittal against two men on charges of committing crimes under Part 5 of Article 33, Part 3 of Article 159 of the Criminal Code of the Russian Federation, i.e. complicity in fraud committed on a large scale. The defense attorneys for the acquitted individuals, lawyers from the Moscow Bar Association "Spektr Prava" Roman Goncharov and Asim Alyev, told "AG" about the nuances of the case.
According to the investigation, unidentified individuals conspired to steal large amounts of money by deception over the phone, posing as law enforcement officers and demanding the transfer of funds under the pretext of keeping them from fraudsters, for which they recruited A. and B. A. was looking for bank accounts and cards to them, issued to third parties, and gave instructions to transfer funds to the cards of accomplices. B. looked for third parties to open bank accounts and cards to them, supervised them, and also received details for subsequent transfers.
No later than May 30, 2022, B. instructed A. to issue a bank card for a monetary reward to a person unaware of the criminal intent of the accomplices. A. convinced an acquaintance O. to transfer funds to the cards of his accomplices for 1 thousand rubles. to issue a bank card in his name, and then transfer it for use to B. Then A., having received the card, connected the number in his use to it, and then transferred the card details to B.
On June 3, 2022, unidentified persons, posing as employees of the Investigative Committee of the Russian Federation, convinced P. through calls and correspondence in the WhatsApp messenger to transfer 1 million rubles to accounts under their control. P. took out a loan, and then deposited the money into his current account. Then he transferred them from his account to the current account of O. Then A. transferred the received money using the details of cards controlled by the participants of the criminal group, twice 400 thousand rubles to one account and 200 thousand rubles to the second account, thereby stealing them, disposing of them at his own discretion, causing damage to P. in the amount of 1 million rubles.
In court, A. and B. denied their knowledge of either the criminal intent of unidentified persons to commit fraud or their assistance in the implementation of this criminal intent.
B. indicated that in early 2022 he registered and agreed to the terms of the user agreement on the Garantex cryptocurrency exchange, where you can buy and sell cryptocurrency. On the platform, the buyer can choose a seller with the most favorable conditions and enter into a transaction (P2P). In June 2022, a regular buyer under the nickname "D...28" entered into a transaction with him. At that time, B. had cryptocurrency worth 1 million rubles. Since banks quickly block cards, B., through A., asked O. to issue a card in his name, explaining that the activity is related to the crypto exchange. B. sent the buyer O.'s card details to credit the funds.
When "D...28" transferred 1 million rubles, B. made two transactions to purchase cryptocurrency for 800 thousand from one seller and a transaction for 200 thousand from another, earning about 60 thousand rubles on this. B. said that he could not check and had not checked the origin of the funds received into his account on the Garantex platform.
A. explained that in June 2022, B. asked him to get a card, explaining that he was involved in cryptocurrency on the exchange and there would be no illegal actions. He agreed and said that he had a credit card. B. warned that the card could be blocked, then A. asked O. to help open the card. O. agreed, got the card and gave it to A., who gave B.'s details. When the money arrived, A. transferred the funds twice: 400 thousand rubles to one account and 200 thousand rubles to another. For the assistance provided, B. gave 2 thousand rubles, of which A. gave 1 thousand to O. B. did not contact him with any more requests.
Witness O. said that in early June 2022, his friend A. asked him to issue a bank card to buy securities, assuring him that it was legal. O. agreed and on the same day left an application for the issue and registration of a debit bank card. On June 3, 2022, a courier delivered the card, which O. handed over along with the attached documents to A., receiving 1 thousand rubles for this. Some time later, he received a call from the bank and was informed that funds in the amount of less than a million rubles had been received into his account, which would be blocked. A. called the bank from O.'s number, whose consultants said that the money would be unblocked and transferred to his current account. He was not against this.
The victim, P.'s wife, stated: on the evening of June 3, 2022, P. said that he received a call from a man who introduced himself as an employee of the Investigative Committee of the Russian Federation and said that a man named Sidorov had tried to take out a loan in his name. The loan was issued to him, but not issued, and P. had to go to the bank himself and withdraw the money, otherwise it would be sent to the fraudsters. After that, a woman called him, introduced herself as an employee of the Central Bank of the Russian Federation and said that he needed to withdraw the money and transfer it to a "reserve" account, which P. did. He took out a loan, an account was opened for him at another bank, and he transferred 1 million rubles through it to A.'s account. Realizing that this was fraud, P. and his wife went to the bank, but it was already closed. Having reached the hotline, P. left a statement to cancel the money transfer operation. The next day, P. went to the bank, where he wrote a statement about fraudulent actions. On June 4, 2022, P.'s wife received a message that he had committed suicide.
Witness L. reported that from November 2021 to December 2022 he worked on the Garantex cryptocurrency exchange, for registration on which it is necessary to pass verification and sign a user agreement. On the exchange, he bought cryptocurrency cheaper and sold it more expensive. Sometimes regular customers transferred funds before opening a transaction on the exchange due to the fact that he, as a seller, either did not have cryptocurrency or it was frozen. He used these funds to buy cryptocurrency and transfer it to buyers. In such cases, only the buyer is at risk. The percentage of the transaction is set by the seller and the buyer themselves. The income consists of the difference in the rates between the purchase and sale. L. indicated that he trained B. to work on the exchange and knew the user "D...28", who was a regular customer. "D...28" was an exchange service, clients contacted it to buy cryptocurrency, after which it opened transactions to buy cryptocurrency, including with it. In total, it made about 100 transactions with the user "D...28". Due to the large turnover of funds, bank cards were blocked. According to the user agreement, the seller has no obligation to check the origin of the buyer's funds, the Garantex exchange guarantees that the transaction is carried out within the law.
Having reviewed the case materials, the court found that the prosecution had not provided evidence of B. and A.'s awareness of the fraudulent actions being committed against P. and their role as accomplices in this. It noted that, according to the response from the Garantex crypto platform, B. carries out transactions with digital signs on the crypto platform; on January 28, 2022, the client account "B...C" was registered, through which B. carried out a transaction for the purchase and sale of cryptocurrency on June 3, 2022. The seller received payment in the amount of 1 million rubles, a financial asset in the amount of about 934 thousand rubles of cryptocurrency was credited to the account of user "D...28". L. carries out transactions for the purchase and sale of crypto, including using his account for transfers of funds. From November 15, 2021 to July 7, 2023, the number of completed transactions was 3,161 with 740 different counterparties, including with "D...28".
As the court pointed out, evidence indicating that B. and A. entered into a conspiracy with unidentified persons aimed at stealing P.'s funds on a large scale by deception, and intentionally assisted in the theft, is not contained in the case materials and was not provided by the state prosecutor. The fact that B. was registered on the Garantex exchange as of June 3, 2022, and A., at the latter's request, asked O. to issue a card, which he issued and transferred to A. and to which P.'s funds were subsequently transferred, then O., at B.'s request, transferred them to exchange users, does not indicate their intent to assist unidentified persons in committing fraud.
The defendants' arguments that they did not know about the origin of the funds received on June 3, 2022 from user "D...28" to O.'s account, that A. decided to help his friend get a card by finding O., have not been refuted. On the contrary, the court noted, by signing the user agreement, A. agreed to its terms, according to which the user cannot use the content or services of the exchange for any illegal purposes or other purposes not mentioned in the terms, use the services of the exchange on behalf of or in the interests of any third party in any way.
The Dimitrovgrad City Court of the Ulyanovsk Region came to the conclusion that none of the evidence of the prosecution confirms the intentional complicity of B. and A. in committing fraud, and acquitted them due to the absence of a crime in their actions with the right to rehabilitation.
In a commentary to AG, B.'s defense attorney Roman Goncharov shared that the most difficult thing was to convey to the court how the crypto platform works and what p2p arbitration is. "At the stage of the preliminary investigation, all motions of the defense to obtain information from Garantex were rejected by the investigator. It was difficult for the lawyer to obtain the information on his own, since crypto platforms have a policy of responding to requests only from law enforcement agencies and courts. Subsequently, the defense was still able to obtain the requested information on its own, but already at the stage of consideration of the case by the court," he said. "Documents were received confirming the "cleanliness" of the transactions carried out by my client, as well as the user agreement, mandatory for each user upon registration, in the version in effect at the time of the transaction with the unscrupulous buyer. These documents were carefully analyzed by the defense, and their essence was conveyed to the court (in addition to the documents themselves) in easy-to-understand language. The witnesses for the defense were questioned, and they made it clear to more than one judge (the case was heard in court three times) that the seller of cryptocurrency has no obligation to find out from the buyer the legality of the origin of the money with which the buyer pays for the crypto."
Roman Goncharov noted that the line of defense was initially built on the basis of the lack of intent on the part of the defendants to aid in the commission of fraud. "It was the totality of the evidence presented to the court by the defense that emphasized the argument that the acquitted persons had no intent to commit a crime," he concluded.
His colleague, defense attorney A. Asim Alyev called the verdict more than fair: "It corresponds to both the circumstances of the events established during the investigation of the criminal case and the materials studied during the trial. The decision taken on the innocence of our clients once again proves that the principle of adversarial proceedings exists and is successfully applied in practice, especially if you are confident in your rightness," he said.
Asim Aliev noted that the crypto industry is actively developing in Russia and many young people do not suspect that they may end up in the investigator's office, and then in the dock. "Unfortunately, investigators, interrogating citizens without a lawyer, try to "catch" them, find some phrases in the interrogation that can simply be taken out of context, and build an accusation on this. A person, not being very versed in the intricacies of jurisprudence, and also experiencing psychological pressure, "falls for" such not entirely correct methods of the investigator, thereby causing harm to himself and his future," the lawyer said.
Asim Aliev believes that law enforcement and judicial bodies need to be more attentive to the investigation of crimes, and especially to the collection of evidence. In addition, they must strictly adhere to Article 14 of the Criminal Procedure Code - the presumption of innocence, according to which the burden of proof lies with the prosecution, all doubts about guilt are interpreted in favor of the accused, and the verdict cannot be based on assumptions.
"In conclusion, I would like to say that for me as a lawyer, the prestige of our profession is very important, as well as the belief of citizens that a lawyer is really needed and can help. Such sentences, better than anything, contribute to the formation of a decent level of public trust in the institution of advocacy, and, undoubtedly, increase the prestige of our noble profession," he summarized.
In a commentary to AG, one of the defense attorneys shared that the most difficult thing was to convey to the court how the crypto platform works and what p2p arbitration is. Another believed that the adopted judicial act on the innocence of the defendants once again proves that the principle of adversarial proceedings exists and is successfully applied in practice.
As AG learned, on September 27, the Dimitrovgrad City Court of the Ulyanovsk Region issued an acquittal against two men on charges of committing crimes under Part 5 of Article 33, Part 3 of Article 159 of the Criminal Code of the Russian Federation, i.e. complicity in fraud committed on a large scale. The defense attorneys for the acquitted individuals, lawyers from the Moscow Bar Association "Spektr Prava" Roman Goncharov and Asim Alyev, told "AG" about the nuances of the case.
According to the investigation, unidentified individuals conspired to steal large amounts of money by deception over the phone, posing as law enforcement officers and demanding the transfer of funds under the pretext of keeping them from fraudsters, for which they recruited A. and B. A. was looking for bank accounts and cards to them, issued to third parties, and gave instructions to transfer funds to the cards of accomplices. B. looked for third parties to open bank accounts and cards to them, supervised them, and also received details for subsequent transfers.
No later than May 30, 2022, B. instructed A. to issue a bank card for a monetary reward to a person unaware of the criminal intent of the accomplices. A. convinced an acquaintance O. to transfer funds to the cards of his accomplices for 1 thousand rubles. to issue a bank card in his name, and then transfer it for use to B. Then A., having received the card, connected the number in his use to it, and then transferred the card details to B.
On June 3, 2022, unidentified persons, posing as employees of the Investigative Committee of the Russian Federation, convinced P. through calls and correspondence in the WhatsApp messenger to transfer 1 million rubles to accounts under their control. P. took out a loan, and then deposited the money into his current account. Then he transferred them from his account to the current account of O. Then A. transferred the received money using the details of cards controlled by the participants of the criminal group, twice 400 thousand rubles to one account and 200 thousand rubles to the second account, thereby stealing them, disposing of them at his own discretion, causing damage to P. in the amount of 1 million rubles.
In court, A. and B. denied their knowledge of either the criminal intent of unidentified persons to commit fraud or their assistance in the implementation of this criminal intent.
B. indicated that in early 2022 he registered and agreed to the terms of the user agreement on the Garantex cryptocurrency exchange, where you can buy and sell cryptocurrency. On the platform, the buyer can choose a seller with the most favorable conditions and enter into a transaction (P2P). In June 2022, a regular buyer under the nickname "D...28" entered into a transaction with him. At that time, B. had cryptocurrency worth 1 million rubles. Since banks quickly block cards, B., through A., asked O. to issue a card in his name, explaining that the activity is related to the crypto exchange. B. sent the buyer O.'s card details to credit the funds.
When "D...28" transferred 1 million rubles, B. made two transactions to purchase cryptocurrency for 800 thousand from one seller and a transaction for 200 thousand from another, earning about 60 thousand rubles on this. B. said that he could not check and had not checked the origin of the funds received into his account on the Garantex platform.
A. explained that in June 2022, B. asked him to get a card, explaining that he was involved in cryptocurrency on the exchange and there would be no illegal actions. He agreed and said that he had a credit card. B. warned that the card could be blocked, then A. asked O. to help open the card. O. agreed, got the card and gave it to A., who gave B.'s details. When the money arrived, A. transferred the funds twice: 400 thousand rubles to one account and 200 thousand rubles to another. For the assistance provided, B. gave 2 thousand rubles, of which A. gave 1 thousand to O. B. did not contact him with any more requests.
Witness O. said that in early June 2022, his friend A. asked him to issue a bank card to buy securities, assuring him that it was legal. O. agreed and on the same day left an application for the issue and registration of a debit bank card. On June 3, 2022, a courier delivered the card, which O. handed over along with the attached documents to A., receiving 1 thousand rubles for this. Some time later, he received a call from the bank and was informed that funds in the amount of less than a million rubles had been received into his account, which would be blocked. A. called the bank from O.'s number, whose consultants said that the money would be unblocked and transferred to his current account. He was not against this.
The victim, P.'s wife, stated: on the evening of June 3, 2022, P. said that he received a call from a man who introduced himself as an employee of the Investigative Committee of the Russian Federation and said that a man named Sidorov had tried to take out a loan in his name. The loan was issued to him, but not issued, and P. had to go to the bank himself and withdraw the money, otherwise it would be sent to the fraudsters. After that, a woman called him, introduced herself as an employee of the Central Bank of the Russian Federation and said that he needed to withdraw the money and transfer it to a "reserve" account, which P. did. He took out a loan, an account was opened for him at another bank, and he transferred 1 million rubles through it to A.'s account. Realizing that this was fraud, P. and his wife went to the bank, but it was already closed. Having reached the hotline, P. left a statement to cancel the money transfer operation. The next day, P. went to the bank, where he wrote a statement about fraudulent actions. On June 4, 2022, P.'s wife received a message that he had committed suicide.
Witness L. reported that from November 2021 to December 2022 he worked on the Garantex cryptocurrency exchange, for registration on which it is necessary to pass verification and sign a user agreement. On the exchange, he bought cryptocurrency cheaper and sold it more expensive. Sometimes regular customers transferred funds before opening a transaction on the exchange due to the fact that he, as a seller, either did not have cryptocurrency or it was frozen. He used these funds to buy cryptocurrency and transfer it to buyers. In such cases, only the buyer is at risk. The percentage of the transaction is set by the seller and the buyer themselves. The income consists of the difference in the rates between the purchase and sale. L. indicated that he trained B. to work on the exchange and knew the user "D...28", who was a regular customer. "D...28" was an exchange service, clients contacted it to buy cryptocurrency, after which it opened transactions to buy cryptocurrency, including with it. In total, it made about 100 transactions with the user "D...28". Due to the large turnover of funds, bank cards were blocked. According to the user agreement, the seller has no obligation to check the origin of the buyer's funds, the Garantex exchange guarantees that the transaction is carried out within the law.
Having reviewed the case materials, the court found that the prosecution had not provided evidence of B. and A.'s awareness of the fraudulent actions being committed against P. and their role as accomplices in this. It noted that, according to the response from the Garantex crypto platform, B. carries out transactions with digital signs on the crypto platform; on January 28, 2022, the client account "B...C" was registered, through which B. carried out a transaction for the purchase and sale of cryptocurrency on June 3, 2022. The seller received payment in the amount of 1 million rubles, a financial asset in the amount of about 934 thousand rubles of cryptocurrency was credited to the account of user "D...28". L. carries out transactions for the purchase and sale of crypto, including using his account for transfers of funds. From November 15, 2021 to July 7, 2023, the number of completed transactions was 3,161 with 740 different counterparties, including with "D...28".
As the court pointed out, evidence indicating that B. and A. entered into a conspiracy with unidentified persons aimed at stealing P.'s funds on a large scale by deception, and intentionally assisted in the theft, is not contained in the case materials and was not provided by the state prosecutor. The fact that B. was registered on the Garantex exchange as of June 3, 2022, and A., at the latter's request, asked O. to issue a card, which he issued and transferred to A. and to which P.'s funds were subsequently transferred, then O., at B.'s request, transferred them to exchange users, does not indicate their intent to assist unidentified persons in committing fraud.
The defendants' arguments that they did not know about the origin of the funds received on June 3, 2022 from user "D...28" to O.'s account, that A. decided to help his friend get a card by finding O., have not been refuted. On the contrary, the court noted, by signing the user agreement, A. agreed to its terms, according to which the user cannot use the content or services of the exchange for any illegal purposes or other purposes not mentioned in the terms, use the services of the exchange on behalf of or in the interests of any third party in any way.
The Dimitrovgrad City Court of the Ulyanovsk Region came to the conclusion that none of the evidence of the prosecution confirms the intentional complicity of B. and A. in committing fraud, and acquitted them due to the absence of a crime in their actions with the right to rehabilitation.
In a commentary to AG, B.'s defense attorney Roman Goncharov shared that the most difficult thing was to convey to the court how the crypto platform works and what p2p arbitration is. "At the stage of the preliminary investigation, all motions of the defense to obtain information from Garantex were rejected by the investigator. It was difficult for the lawyer to obtain the information on his own, since crypto platforms have a policy of responding to requests only from law enforcement agencies and courts. Subsequently, the defense was still able to obtain the requested information on its own, but already at the stage of consideration of the case by the court," he said. "Documents were received confirming the "cleanliness" of the transactions carried out by my client, as well as the user agreement, mandatory for each user upon registration, in the version in effect at the time of the transaction with the unscrupulous buyer. These documents were carefully analyzed by the defense, and their essence was conveyed to the court (in addition to the documents themselves) in easy-to-understand language. The witnesses for the defense were questioned, and they made it clear to more than one judge (the case was heard in court three times) that the seller of cryptocurrency has no obligation to find out from the buyer the legality of the origin of the money with which the buyer pays for the crypto."
Roman Goncharov noted that the line of defense was initially built on the basis of the lack of intent on the part of the defendants to aid in the commission of fraud. "It was the totality of the evidence presented to the court by the defense that emphasized the argument that the acquitted persons had no intent to commit a crime," he concluded.
His colleague, defense attorney A. Asim Alyev called the verdict more than fair: "It corresponds to both the circumstances of the events established during the investigation of the criminal case and the materials studied during the trial. The decision taken on the innocence of our clients once again proves that the principle of adversarial proceedings exists and is successfully applied in practice, especially if you are confident in your rightness," he said.
Asim Aliev noted that the crypto industry is actively developing in Russia and many young people do not suspect that they may end up in the investigator's office, and then in the dock. "Unfortunately, investigators, interrogating citizens without a lawyer, try to "catch" them, find some phrases in the interrogation that can simply be taken out of context, and build an accusation on this. A person, not being very versed in the intricacies of jurisprudence, and also experiencing psychological pressure, "falls for" such not entirely correct methods of the investigator, thereby causing harm to himself and his future," the lawyer said.
Asim Aliev believes that law enforcement and judicial bodies need to be more attentive to the investigation of crimes, and especially to the collection of evidence. In addition, they must strictly adhere to Article 14 of the Criminal Procedure Code - the presumption of innocence, according to which the burden of proof lies with the prosecution, all doubts about guilt are interpreted in favor of the accused, and the verdict cannot be based on assumptions.
"In conclusion, I would like to say that for me as a lawyer, the prestige of our profession is very important, as well as the belief of citizens that a lawyer is really needed and can help. Such sentences, better than anything, contribute to the formation of a decent level of public trust in the institution of advocacy, and, undoubtedly, increase the prestige of our noble profession," he summarized.