Identification of a client of an individual is carried out. Legislative requirements for customer identification in electronic payments (Alekseeva T.N.)
Decision:
The solution of the subproblem seemed rather trivial to everyone. Full name, passport, date of birth - what else do you need? And then the nuances began. Full name - is not a constant parameter of the object of an individual, the girl got married and hello. Date of birth is a good parameter, but there are problems with uniqueness. The passport, alas and ah, also changes periodically, and legal possibility to oblige the client to notify the company about changing the passport and / or other identification parameter, unfortunately, developers and lawyers do not exist. What followed was pure brainstorming.The list of parameters considered as a result became the following:
- Date of Birth
- Place of Birth
- Passport ID
- Numbers of all passports in the chain of issued
- papillary lines
- Map of face characteristic points
- Drawing of the retina
- DNA analysis
A small historical digression. Imagine now, such a miracle comes, giving you very, very considerable money for management, and you have the following dialogue:
- Client: Give me all my money back.
- You: Easy. What do you say your name is?
- Client: Ivanova Avinaisa Faridovna. (Suppose that is so, although, of course, this name did not sound at all)
- You: (Cheerfully tapping your name in the system) Hmm. There is no such letter in our word. May I have your passport?
- Client: Of course you can, and holds out your passport.
- You: (clack-clack-clack) And there is no such passport. Do you remember your TIN?
- Client: Of course I remember, only yesterday they issued it.
- You: (clack-clack) And we don't have your TIN either. Put your finger on the scanner, please.
- Client: Please.
- You: (listening to the bewildered pi-and-and-ip of the next circuit of the identification system) And we don’t have your prints either.
Well, in conclusion of this digression, the information system resisted an attempt to change the gender of an individual in the tables, a client in the contract, an attempt to issue money from one account through the account of another contract, and so on. The sword dance was for three days. Unfortunately, the case is quite real, and as an IT specialist with more than decent experience, I, unfortunately, cannot imagine the methods for solving this problem.
Returning to the solution of the subproblem. Having analyzed this example, we came to the weight identification mechanism, when each of the parameters has its own weight, and the system only gives an estimate of the probability with which the visitor is a particular client. And the decision that / not that - is made directly by the manager. I should note that we did not cope with the solution of the problem in the allotted day for this day, we were busy for almost three days. But the system passed all the tests at the customer. And a sex change, and a change in age, and the loss of a passport, and even memory loss. True, for the latter case, I had to install a DNA analyzer. I must say that the practice of using the express DNA analyzer has greatly changed our views on this miracle technology. Probably, if you take a blood test, a scraping of the mucous membrane and another thirty-three tests, then the accuracy will increase dramatically, but under normal conditions - three nines, this is not the result you expect, and the supplier did not promise more. And the speed of analysis is not impressive.
Outcome:
In the real world, a person can change, under certain conditions, any parameter of identification. This must be remembered.Accordingly, the system must be able to either change any of these parameters, or provide a mechanism for resolving the contradiction that has arisen in some other way.
The exact identification of the visitor is impossible in principle. When using certain technologies, only a fairly high probability of identification can be achieved.
You need to be aware of the costs and potential losses. If they don’t buy a pie from you due to an identification failure, then you don’t even need a fingerprint scanner, and if we are talking about tens of millions of correct money, then a DNA analyzer will not be superfluous.
Good luck to everyone in the coming year and more non-obvious tasks.
Addition.
I called the customer, found out about the numbers of previously issued passports. Israelis, Saudis and others do not have such marks. Services are also provided to non-residents.
The word "identification" comes from the Latin identifico ("I identify") and means, according to the Big Encyclopedic Dictionary, recognition of identity, identification of objects, identification. This word has been related to banking since August 2001, when Federal Law No. 115-FZ of 07.08.2001 "On counteracting the legalization (laundering) of proceeds from crime and the financing of terrorism" was adopted.
Identification means a procedure known to every bank employee, carried out in pursuance of the requirements for combating the legalization (laundering) of proceeds from crime and the financing of terrorism. This procedure includes two stages: collecting information about the client and confirming their authenticity.
Federal Law No. 115-FZ of 07.08.2001 "On Combating the Legalization (Laundering) of Proceeds from Crime and the Financing of Terrorism" (hereinafter - Law No. 115-FZ), from the moment of its adoption, distinguishes between transactions requiring identification and operations in which it may not be carried out. And since May 16, 2014, the possibility of simplified identification has also been legally fixed, which until that moment existed only at the level of a by-law issued by the Bank of Russia - Regulations of the Bank of Russia dated August 19, 2004 N 262-P "On identification by credit institutions of customers and beneficiaries in order to counteract the legalization (laundering) of proceeds from crime and the financing of terrorism".
To fully identify a client - an individual, it is necessary to establish:
- surname, name, and also patronymic (unless otherwise follows from the law or national custom);
- citizenship;
- date and place of birth;
- details of the identity document;
- data migration card, a document confirming the right of a foreign citizen or stateless person to stay (residence) in Russian Federation;
- address of the place of residence (registration) or place of stay.
After that, you need to check the accuracy of the provided data using originals or notarized copies of documents.
For classic banks, such a procedure when opening accounts is common and not too burdensome - a bank client always comes to the office for service. But such a sector of banking services as electronic payments, which is dynamically developing against the backdrop of development information technologies, is subject to significant limitations. These restrictions are caused by the fact that EMF transfer operators provide their services for transferring electronic money (hereinafter - EMF) remotely using the Internet, and in order to identify their customers, they must comply with the same requirements as classical banks when opening an account - to ensure verification of client information using original documents. Obviously, such a requirement not only limits the dynamics of the development of the electronic payment market, but also affects the availability financial services for the population in the context of territorial remoteness of clients.
Of course, it is necessary to increase the transparency of micro-settlements (namely, such are the calculations with electronic money). But such methods do not at all contribute to the desire of customers to use personalized electronic means of payment, which, if it is possible to use non-personalized electronic means of payment, increases the volume of absolutely anonymous, untraceable transfers. Therefore, the appearance of simplified identification when making transfers without opening an account (including EMF) in the form in which it is defined by Law N 115-FZ is a significant breakthrough, despite the fact that with the advent of simplified identification, the list of operations that can be reduced be committed without identification at all. Thus, transfers between individuals, transfers to legal entities - non-residents, transfers to non-profit organizations "suffered". But when the client passes the simplified identification, these restrictions are removed. We believe that the prospects for remote identification potentially compensate for these limitations, however, limitations already exist, and simplified identification will work in full at best in October, if government systems will be ready to provide credit institutions with services to confirm the authenticity of customer data obtained during simplified identification.
Simplified client identification, like full identification, includes two stages: obtaining information about the client and verifying it. What is "simplification"?
Opinion. V.L. Dostov, Association "Electronic Money", Chairman of the Council
Fixing the concept of simplified identification at the level of law is perhaps the most significant innovation in the "anti-money laundering" legislation recent years. I expect this change to have a positive impact on the growth of retail financial services, as many customers will be able to expand the functionality of an e-wallet by simply sending their data over the Internet. The next important date is October 1, 2014, when a full-fledged verification of identification information in the system of interdepartmental electronic interaction (SMEV) will start working. Banks should adapt internal processes in advance, as accession to the information exchange regulation will start a little earlier.
Nevertheless, the new provisions are, first of all, the basis for further development. I would like to highlight three areas separately. First, the Law needs technical correction. Second, we will inevitably return to the idea of relying on third parties. Such mechanisms have been discussed for a long time and are de facto even enshrined in the Regulation of the Bank of Russia dated August 19, 2004 N 262-P. I hope that we will be able to find a structure that would suit both the regulator and the FATF. And, thirdly, it's time to think about how identification will be carried out using the new electronic passport, which will soon replace the old document. Will it have functionality electronic signature? How to set the place of registration of the client? The regulator will have to answer these and other questions before 2015. Therefore, in the near future we will have more than one round of changes to Law N 115-FZ.
Firstly, the transfer operator establishes an abbreviated list of information about the client:
- Full Name;
- series and number of the identity document.
Secondly, personal appearance is not required at all: this data can be provided remotely from anywhere in the world in any way convenient for the transfer operator and the client.
And, thirdly, the reliability of the data provided is confirmed not only using originals or notarized copies of documents, but also using:
- information from information systems of public authorities, pension fund Russian Federation, Federal Fund mandatory health insurance and (or) state information system determined by the Government of the Russian Federation;
- unified system identification and authentication.
The wording of Law N 115-FZ concerning simplified identification raises questions both from the point of view of legal technique and from the point of view of law enforcement. For example, part 1.11 of Art. 7 of Law N 115-FZ speaks of the possibility of simplified identification when transferring funds without opening a bank account, as well as when providing an electronic means of payment to a client - an individual. At the same time, in part 1.12 of this article, remote methods of simplified identification refer only to the provision of an electronic means of payment, but not to a transfer without opening a bank account. It is not clear what it is: the legislator's misunderstanding of the market, a technical error, or the iron logic of the legislator, inaccessible to business.
It is also completely inexplicable to ban a number of the above operations without identification until the moment when the remote identification tools on the state side can ensure the implementation of this procedure. What was the rationale for preventing unidentified customers from paying for Skype or Amazon without providing them with convenient remote identification options?
Unresolved issues remain the readiness of state systems to work with businesses in the mode they need 24x7 without interruptions in service, as well as the technical and organizational feasibility after October 1 (by this date, state systems should be ready to provide credit institutions with services to confirm the reliability of data when conducting simplified customer identification ) to ensure the connection of all credit institutions, which have been waiting for such an opportunity since May, to a single system.
The logic of the legislator, who excluded the possibility of identifying a client on the basis of identification carried out by another credit institution earlier, for example, using a client's bank card when entering the correct authorization data of this card, is completely incomprehensible. In general, the limited list of ways to confirm the reliability of data, which is established by Law N 115-FZ, in our opinion, is irrational and in fact has no real basis. For example, in European countries, in order to identify an individual, it is enough to remotely send copies of an identity document, "attach" a bank card to an electronic wallet or make the first payment from a bank account. In the US, buyers of prepaid cards can enter their name, date of birth, address, and card number on the bank's website. social insurance- this information is checked financial institution available public and private databases. In a number of states, it is enough to obtain a mark on the delivery of a registered postal item to establish an identity. While not burdensome for customers, these procedures in themselves encourage consumers to pass identification and confirm the irrelevance of the limitations of data verification methods.
findings
The very fact of the emergence of the possibility of remote identification of the client allows us to hope that the issues raised by us will be resolved sooner or later. Otherwise, such identification will be simplified only by name, but not by accessibility and convenience for the client, which will inevitably lead to a decrease in the functionality of such new payment instruments as electronic money, limit the development of this market sector, and also affect the availability of financial services for population. All this taken together can hardly be considered a successful result of state regulation.
The main headache of banking operators working with individuals can be considered the identification of customers sending transfers without opening an account.
Identification of clients and beneficiaries.
In accordance with Article 7 of Federal Law No. 115-FZ, organizations engaged in transactions with in cash and other property, are obliged:
Identify the person being serviced by this organization (client);
- take reasonable and affordable measures in the circumstances to identify and establish beneficiaries.
In the process of identifying individuals (let me remind you, we are talking about senders of transfers), a bank employee performs the following actions:
Verification of documents proving the identity of the client;
- identification of the beneficiary, if any, and his identification (verification of documents proving his identity);
- fixing information about the client (beneficiary) in the questionnaire (dossier) on paper or in in electronic format;
- checking whether the client (beneficiary) has information about their participation in extremist activities;
- assessment of the degree (level) of the risk of the client performing transactions for the purposes of AML/CFT.
Identification includes the establishment of the following information regarding individuals:
Last name, first name, and also patronymic (unless otherwise follows from the law or national custom);
- citizenship;
- details of the identity document;
- data of a migration card, a document confirming the right of a foreign citizen or stateless person to stay (residence) in the Russian Federation;
- address of the place of residence (registration) or place of stay;
- taxpayer identification number (if any).
Clauses 1.1. and 1.2. article 7 of Federal Law No. 115-FZ (in general, the numbering of paragraphs of article 7 is a separate song) contains a list of operations in the course of which no identification customers - individuals and beneficiaries.
Such operations, in particular, include the acceptance of the following payments from individual clients (if their amount does not exceed 30,000 rubles or the amount in foreign currency equivalent to 30,000 rubles):
Associated with settlements with budgets of all levels of the budgetary system of the Russian Federation (including federal, regional and local taxes and fees provided for by the legislation of the Russian Federation on taxes and fees, as well as penalties and fines);
related to payment for services rendered budget institutions administered by federal bodies executive authorities, executive authorities of the constituent entities of the Russian Federation and bodies local government;
- related to the implementation of payment for living quarters, public utilities, with payment for services for the protection of apartments and the installation of a security alarm, as well as with the implementation of payments for communication services;
- associated with the payment of contributions by members of horticultural, horticultural, dacha non-profit associations of citizens, garage-building cooperatives, payment for paid parking services;
related to the payment of alimony.
The main document that establishes the requirements for the identification by credit institutions of persons they serve (customers) and beneficiaries for AML / CFT purposes is the Regulation of the Central Bank of the Russian Federation of August 19, 2004 No. 262-P “On the identification by credit institutions of customers and beneficiaries in order to counter the legalization (laundering) of proceeds from crime and the financing of terrorism”.
Documents for the identification of individuals and other purposes.
All individuals who are eager to send a transfer from your bank can be divided into five groups in terms of citizenship:
Citizens of the Russian Federation;
- Foreign citizens;
- stateless persons permanently residing on the territory of the Russian Federation;
- other stateless persons;
- refugees.
At the same time, in recent times there is a clear trend towards a decrease in the share of citizens of the Russian Federation in the total volume of remittance senders. Which, unfortunately, does not contribute to facilitating and simplifying the work of operational workers.
Identity documents.
The list of identity documents is determined by the legislation of the Russian Federation. Appendix 1 to Regulation No. 262-P lists the types of documents that can verify the identity of certain groups of individuals.
For Russian citizens these are:
Passport of a citizen of the Russian Federation;
- birth certificate - for a citizen of the Russian Federation who has not reached the age of 14;
- general foreign passport;
- seaman's passport;
- military identity card or military ID;
- a temporary identity card of a citizen of the Russian Federation, issued by the internal affairs body before issuing a passport;
- other documents recognized in accordance with the legislation of the Russian Federation as identity documents.
For foreign citizens an identity document is a passport of a foreign citizen or another document established by federal law or recognized in accordance with an international treaty of the Russian Federation as an identity document.
Stateless persons permanently residing on the territory of the Russian Federation, you will have to present a residence permit in the Russian Federation.
Other stateless persons may have as an identity document:
A document issued by a foreign state and recognized in accordance with an international treaty of the Russian Federation as a document proving the identity of a stateless person;
- residence;
- other documents stipulated by federal laws or recognized in accordance with an international treaty of the Russian Federation as documents proving the identity of a stateless person.
For refugees identity can be:
Certificate of consideration of an application for recognition of a person as a refugee, issued by a diplomatic or consular institution of the Russian Federation or an immigration control post or territorial body federal executive authority for the migration service;
- Refugee ID.
It is quite obvious that even an clerk who has memorized this list by heart will not be able to independently establish whether an identity document is any “other document” presented by a foreign citizen, a stateless person, or even a citizen of the Russian Federation who intends to carry out transfer without opening an account. Moreover, not every lawyer is capable of this.
Therefore, in internal documents, it is advisable to provide for clear “closed” lists of necessary and sufficient documents for each type of “physicist” (at the same time, the words “other documents” should be taboo), as well as the procedure for the actions of transaction officers upon presentation of a document not specified in the list . If there are samples of each type of documents - generally great.
This also applies to all documents discussed below.
Other documents (for foreign citizens and stateless persons).
In addition to an identity document, foreign citizens and stateless persons must check and record:
Migration card data (card number, start date of stay and end date of stay);
- data of a document confirming the right of a foreign citizen or stateless person to stay (residence) in the Russian Federation (series (if any) and document number, start date of the right to stay (residence), expiration date of the right to stay (residence)).
Documents confirming the right of a foreign citizen or stateless person to stay (residence) in the Russian Federation are:
Residence;
- temporary residence permit;
- visa;
- another document confirming, in accordance with the legislation of the Russian Federation, the right of a foreign citizen or stateless person to stay (reside) in the Russian Federation.
Documents confirming the degree of relationship.
federal law dated July 5, 2007 No. 127-FZ “On Amendments to the Federal Law “On currency regulation and currency control» resident individuals are allowed to transfer funds from their accounts opened with authorized banks in favor of their spouses or close relatives to their accounts opened with authorized banks or banks located outside the territory of the Russian Federation. Such transfers are not subject to the $5,000 limit imposed on transfers by resident individuals within one business day through one authorized bank. In this regard, currency control agents are granted the right to request and receive from residents documents confirming that individuals are spouses or close relatives (subparagraph 13 of paragraph 4 of Federal Law No. 173-FZ of December 10, 2003 "On currency regulation and currency control ".
The need to present such documents arises when the amount of the transfer being sent exceeds the amount equal to the equivalent of 5,000 US dollars at the official exchange rate established by the Central Bank of the Russian Federation on the date of debiting funds from the account of a resident individual.
Ordinance of the Central Bank of the Russian Federation dated July 20, 2007 No. 1868-U “On the submission by individuals - residents to authorized banks of documents related to the conduct of certain currency transactions» establishes a list of documents confirming that individuals are spouses or close relatives.
According to this directive, individuals wishing to send a large (more than $5,000 equivalent) transfer to a spouse or close relative submit documents (copies of documents) to the bank confirming that individuals are spouses or close relatives from the following list:
1. passport of a citizen of the Russian Federation;
2. general foreign passport;
3. diplomatic passport;
4. service passport;
5. seaman's passport (sailor's identity card);
6. birth certificate;
7. marriage certificate;
8. certificate of adoption (adoption);
9. certificate of paternity;
10. certificate of name change;
11. military ID;
12. residence permit of a foreign citizen or stateless person;
13. documents issued by the competent authorities of foreign states to certify acts of civil status committed outside the territory of the Russian Federation under the laws of the relevant foreign states in relation to citizens of the Russian Federation, foreign citizens and stateless persons, similar to the documents specified in paragraphs 6 - 10;
14. A court decision that has entered into legal force on establishing a fact of legal significance (including on establishing the fact of family or kinship relations, on adoption (adoption), on establishing paternity).
General requirements to documents.
Even if the operator by some miracle managed to identify the client and / or beneficiary (especially foreigners and stateless persons) and get everything necessary information about them, it is too early to rejoice in him. It is also necessary to check the fulfillment of a number of requirements for documents of an individual.
All documents allowing to identify the client, as well as to establish and identify the beneficiary, must be valid on the date of presentation.
Documents drawn up in full or in any part in a foreign language shall be submitted to the bank with a duly certified translation into Russian.
All documents are submitted by clients in the original or a duly certified copy. If only part of the document is relevant to the identification of the client, the establishment and identification of the beneficiary, a certified extract from it may be submitted.
In case of providing copies of documents, the bank has the right to demand the presentation of original documents for review. This point also needs to be more specifically indicated in the internal position: in what cases the operator should demand the original, and what should he do if the client refuses to present the original document.
Beneficiaries.
In the opinion of the Central Bank of the Russian Federation, the beneficiary is the person for whose benefit the client acts, in particular on the basis of agency agreement, contracts of commission, commission and trust management.
The requirement to identify beneficiaries is considered fulfilled by the bank if it can, on the basis of relevant documents and information, confirm that it has taken reasonable and accessible measures in the circumstances to identify and identify beneficiaries.
The “in particular” clause included by the Bank of Russia in the definition of beneficiaries makes the circle of these mysterious personalities practically unlimited. For example, kindergarteners, schoolchildren and students easily get into it, for whom parents pay for their stay and education in the relevant institutions.
However, many articles have been written about the problems associated with the identification of beneficiaries, and I do not want to repeat myself here. For those who are interested, I recommend the article “Once again about beneficiaries” by A. Speransky (“Accounting and Banking”, No. 4, April 2007).
For our own purposes (in the sense, for the purposes pursued by this series of articles), I will once again repeat to everyone the refrain that is probably already boring: it is necessary to clearly define by an internal document who and in what cases can be considered a beneficiary when making transfers by individuals. Directly by types (destinations) of payments. Leave no room for imagination to tellers. They have other tasks.
To establish and identify beneficiaries, the following information is required:
On the grounds indicating that the client is acting for the benefit of another person during the banking operations and other transactions;
About the beneficiary - to the extent provided for the identification of individuals (see above) or legal entities.
This volume, as we have already found out, is quite large, and as a rule, it is quite difficult to obtain such information about some completely “leftist” persons, whom the Bank of Russia, for some unknown reason, considered beneficiaries.
But that's a topic for another article.
Risk level.
In accordance with clause 1.4. Regulations No. 262-P, the bank must develop and approve a program for identifying customers, establishing and identifying beneficiaries, including:
Client identification procedure;
- the procedure for establishing and identifying beneficiaries;
- the procedure for assessing the degree (level) of the risk of the client performing transactions for the purposes of AML / CFT and the grounds for assessing such risk.
According to paragraph 2.9. an increased degree (level) of risk is assigned, in particular, to the following operations:
Transactions with residents of the states or territories specified in paragraphs 2, 3 of Appendix 1 to Bank of Russia Ordinance No. 1317-U dated August 7, 2003 “On the procedure for establishing correspondent relations by authorized banks with non-resident banks registered in states and territories that provide preferential tax regime and (or) not providing for the disclosure and provision of information during the financial transactions(offshore zones)";
Implementation legal entities money transfers to bank accounts or bank deposits individuals (with the exception of wages and compensations in accordance with the labor legislation of the Russian Federation, payment of pensions, scholarships, allowances and other mandatory social benefits provided for by the legislation of the Russian Federation) with subsequent withdrawal by individuals of the said funds in cash or transfers of the said funds to the accounts and deposits of other persons;
- implementation of banking operations and other transactions using Internet technologies.
The last point is somewhat surprising - it turns out that transactions with increased risk should be considered, for example, all payments by individuals via the Internet for utilities, telephones, and also for the Internet itself.
The bank should pay increased attention to transactions conducted by high-risk customers, as well as update information about them and review the risk level at least once a year (whereas in other cases, information update and risk review may be carried out at least once every three of the year).
Simplified identification.
When implementing money transfers on behalf of individuals without opening bank accounts, a simplified identification of an individual can be carried out, that is, identification based on an identity document that does not contain all the information required in accordance with Article 7 of Federal Law No. 115-FZ.
Simplified identification implies establishing the last name, first name and (unless otherwise required by law or national custom) patronymic of an individual, as well as the details of an identity document.
Simplified identification of an individual can be carried out only if the following conditions are simultaneously met:
The transaction is not subject to mandatory control in accordance with Article 6 of Federal Law No. 115-FZ (see also Part 18 of this article, “Accounting and Banking” No. 9, 2008);
- the surname, name and patronymic, as well as other information available to the bank about an individual, do not completely coincide with the information contained in the List of extremists;
- in relation to the client, the beneficiary or the operation, the bank does not have suspicions that they are related to the legalization of criminal proceeds or the financing of terrorism;
- the operation does not have a confusing or unusual character, indicating the absence of an obvious economic sense or an obvious legitimate purpose;
- the transaction does not give grounds to assume that the purpose of its implementation is to evade the mandatory control procedures provided for by Federal Law No. 115-FZ.
Actually, the simplified identification differs from the full one only in the set of information about the client (beneficiary), which must be recorded by the bank.
As for driving license referred to in the last paragraph of clause 3.1. Regulations No. 266-P, then it is impossible to accept it as an identity document when making transfers without opening an account within the Russian Federation. But it is possible for transfers sent from the Russian Federation or received in the Russian Federation, since these operations are provided for by Instruction No. 113-I (clauses 3.2.5. - 3.2.7.).
Paradox, however.
Peculiarities of identification of senders when working with ATMs and terminals.
When making transactions using payment (bank) cards, identification is carried out on the basis of the details of the payment (bank) card, as well as codes (passwords). That is, by transferring your card to another person, the client practically nullifies all the principles of identification, from the requirements for the documents presented to the banal comparison of the photo on the document with the original.
If we talk about ATMs that accept money for crediting to a bank account of an individual without using a card, as well as self-service terminals, then there can be no question of any client identification at all. That, however, does not prevent the rapid development of these really convenient services.
Posted on the site 19.07.2012
Almost eleven years have passed since the adoption of the Federal Law on combating the legalization of proceeds from crime and the financing of terrorism, but many of its aspects still provoke questions and discrepancies. For example, the ambiguous reaction of banks and payment agents is caused by the requirements for customer identification. Consider the basic rules for compliance with identification procedures in accordance with current legislation.
Features of identification of individuals
The basis regulating the procedure for identifying bank customers is Federal Law No. 115-FZ dated 07.08.2001 “On counteracting the legalization (laundering) of proceeds from crime and the financing of terrorism” (hereinafter - Law No. 115-FZ). But our task is this article not just quote him, but understand what issues arise with the application of the law, for example, the requirements for the identification of individuals.
The law indicates that when conducting transactions with cash or other property, the bank is obliged to identify the client. It gives preferences only to citizens who wish to make currency exchange transactions or transfers in the amount of up to 15,000 rubles. In this case, there is no need to carry out identification, if, as stated in the law, there are no suspicions of money laundering and financing of terrorism.
The remark about suspicion sounds somewhat absurd. Although, if the client wants to buy the currency of one state for cash, for example, in the amount of 20,000 rubles, and asks that the operation be divided into two parts (10,000 rubles each), then some suspicions may still arise. In all other cases, suspicions may appear only among the participants in the TV show “Battle of Psychics”. There is also the question of what is a translation. Can a payment in favor of a legal entity be a transfer? In our opinion, it can, since Law No. 115-FZ does not disclose the concept of "payment" and does not provide references to other federal laws that would contain the definition of this term.
In 2004, to assist credit institutions, the Bank of Russia issued Regulation No. 262-P, dated August 19, 2004, “On the Identification of Clients and Beneficiaries by Credit Institutions for the Purpose of Counteracting the Legalization (Laundering) of Criminally Obtained Proceeds and the Financing of Terrorism” (hereinafter Regulation No. 262-P). It contains detailed explanations on the procedure for identification and introduces the concept of "simplified identification", which means conducting transactions with individuals with fixing only the last name, first name, patronymic and details of an identity document.
Regulation No. 262-P defines the range of transactions for which simplified identification can be applied. These are transfers of individuals without opening bank accounts and cash transactions foreign exchange and checks. However, as in the case of identification for certain transactions in the amount of up to 15,000 rubles, there are some restrictions. So, simplified identification is not applied when carrying out foreign exchange transactions in the amount of 600,000 rubles. or exceeding it or by the amount of its currency equivalent, since according to paragraph 1 of Art. 6 of Law No. 115-FZ, such transactions are subject to mandatory control - information on them is sent to Federal Service on financial monitoring (hereinafter - Rosfinmonitoring). In sub. 4 p. 1 art. 6 of Law No. 115-FZ specifies what information should be contained in a message to be sent to Rosfinmonitoring: this includes information about the client, which is reflected when he is fully identified.
Regulation No. 262-P contains a clause that simplified identification is carried out only if the operation is not subject to mandatory control. But bank customers, knowing that information about them will be sent to Rosfinmonitoring, can deliberately split into separate operations those that total 600,000 rubles. and more. For such “competent” clients, Regulation No. 262-P contains a clause stating that simplified identification is not carried out when evading mandatory control procedures or other suspicions of laundering criminal proceeds. Also, Regulation No. 262-P provides an opportunity for bank employees to conduct currency exchange transactions in the amount of 15,000.01 to 599,999.99 rubles. upon presentation of a driver's license.
Another subtlety that deserves attention is at what stage of the translation a simplified identification can be carried out. Regulation No. 262-P states that simplified identification is carried out when transferring funds on behalf of individuals without opening bank accounts. What applies in this case to transfers of individuals: sending or receiving? Many may have a question: is it possible to carry out a transfer payment operation with simplified identification? In our opinion, it is possible, since in this case the instruction of an individual can be both about the payment of a transfer and about its sending, and the transfer process can be considered as a period from its sending to its receipt.
COMMENT
When carrying out transactions that do not require full identification of the client, it is necessary to comply with the requirements that were once introduced into Law No. 115-FZ by Federal Law No. 275-FZ of November 28, 2007 and have since undergone strong changes. Yes, in latest edition Law No. 115-FZ on individuals states the following: “A credit institution serving a payer, when making money transfers on behalf of individuals without opening bank accounts, at all stages of their conduct, is obliged to ensure control over the availability, completeness, transfer as part of settlement documents of the following information about the payer - an individual: last name, first name, patronymic (unless otherwise follows from the law or national custom), unique assigned transaction number (if any), taxpayer identification number (if any) or address of residence (registration) or place of stay." The law contains a clause that the bank should not transfer the specified data as part of settlement documents if the transaction amount is less than 15,000 rubles, but no remarks have been made about simplified identification. The difficulty lies in the fact that with simplified identification, it is required to establish the last name, first name, patronymic and details of an identity document, and according to subpara. 7 paragraph 1.1 of Art. 7.2 of Law No. 115-FZ, it is also necessary to establish the address or TIN of the individual payer in order to draw up a payment order.
K. Chernobrovkina, OJSC Nordea Bank, department financial monitoring and currency control, leading economist
Thus, there are the following types of identification of individuals:
1) no identification;
2) simplified identification;
3) full identification.
But everything is not limited to this.
Understanding and remembering all the nuances is quite difficult. Also, the credit institution is obliged to identify foreign public officials among the individuals being serviced or accepted for service. What that means, no one really knows. It remains only to agree that it is not possible to develop any mechanisms for identifying foreign public figures, except for questioning. Unless you use a magic ball.
Drawing certain conclusions about the problems of identifying individuals, it can be noted that Regulation No. 262-P is a reference book for bank operational employees. The Appendix to this document indicates what information must be collected in order to identify individuals. There is nothing difficult for operational workers in it, unless it concerns foreign citizens. If a citizen with a foreign passport applied to the bank to carry out an operation requiring full identification, operational employees need to additionally establish documents that give the foreigner the right to legally reside on the territory of the Russian Federation.
Appendix 1 to Regulation No. 262-P contains a list of them. This is a visa, residence permit, temporary residence permit and other documents confirming, in accordance with the legislation of the Russian Federation, the right of a foreign citizen or stateless person to stay (reside) in the Russian Federation.
The official website of the Association of Russian Banks published the response of the Ministry of Foreign Affairs to the ARB's request regarding the entry of foreign citizens into the Russian Federation. It contains a list of countries and in front of each country information about the visa regime is indicated. The question arises: what to do if, according to the requirements of the Ministry of Foreign Affairs, a foreign citizen who is on the territory of the Russian Federation must have a visa, and for a bank to carry out an operation that requires full identification, he provides a passport in which the mark on the Russian visa is not affixed?
In our opinion, a bank employee is not an employee of the migration service, customs or internal affairs bodies. The bank needs to establish only those data that are prescribed in Law No. 115-FZ and in Regulation No. 262-P. The key word here is “set”, so if a bank employee did not find a visa mark in the passport of a citizen of a state with which Russia has a visa regime, or a citizen of a state that is not part of the customs union with Russia did not have a migration card, then you just need to receive written explanations from a potential client of the bank about the reasons for the absence of these documents and place them in the client's file.
Of course, one should not allow abuse and serve a client without a passport, having received written explanations from him about his absence. In the absence of a visa or migration card, each case must be considered individually and, before carrying out the operation, the client's explanations must be studied in detail.
COMMENT
The domestic "anti-legalization" law was created and is being changed on the basis of international standards on countering money laundering, financing of terrorism and financing of the proliferation of weapons of mass destruction - Recommendations of the development group financial measures money laundering (FATF). The FATF recommendations state that financial institutions should be required, in relation to foreign public officials, to use additional measures in addition to the usual customer due diligence measures. In Law No. 115-FZ, this provision is implemented in Art. 7.3. And “of particular interest” in it is the clause that the credit institution is obliged to take reasonable and affordable measures in the circumstances to identify foreign public officials among individuals who are being serviced or accepted for service. Due to the fact that there are no lists of foreign public persons, at present, credit institutions themselves develop the rules and procedures for their identification. As a rule, it all comes down to a banal customer survey.
A. Stashkov, SMP Bank OJSC, Department of Methodology and Control of the Financial Monitoring Service, Deputy Head
The requirements of Law No. 115-FZ echo the requirements of Federal Law No. 173-FZ of December 10, 2003 “On Currency Regulation and Currency Control”. So, in accordance with the currency legislation, Russian citizens are not always residents, and foreign citizens are non-residents. If a foreign citizen has a residence permit in the Russian Federation, he, according to the domestic currency legislation, becomes a resident. Likewise, Russian citizens who have a residence permit in other states or another mark in their passport confirming their permanent residence in another state are non-residents. Big problems arise for the operational employees of the bank in interpreting the status of the document "residence permit". Note that it is not a document proving the identity of a citizen, with the exception of stateless persons who do not have other documents. In all other cases, the "residence permit" only confirms legal right stay of a citizen on the territory of the Russian Federation, that is, it is equivalent to a visa.
If you take out a page with a visa stamp from your passport and, presenting it, ask to carry out a banking operation, then it is clear that the response will be a refusal of bank operational employees. But a “residence permit” looks more impressive than a visa and is somewhat reminiscent of a passport, so there is a great temptation to make a banking transaction on it without requiring a passport. But if the “residence permit” indicates that its bearer is a citizen of any country, then a passport should be required from him to conduct a banking operation.
Regulation No. 262-P defines a large list of documents by which citizens can carry out banking operations, which creates certain problems for bank employees. If the client makes one-time payments, it does not matter with which document he applied to the bank. It is more difficult with clients with whom the bank has long-term cooperation. These can be individuals who have deposits, current accounts, bank cards, safe boxes, etc.
A copy of the document with which he applied to the bank for the first time, for example, a copy of the passport of a citizen of the Russian Federation, is entered in the client's questionnaire-dossier. At the second visit to the bank, the client has the right to present a foreign passport, and on subsequent visits - a military ID. Regulation No. 262-P does not contain any reservations on the cases in which a particular document can be submitted to the bank for identification during banking operations. This increases the risk of committing fraudulent transactions, since attackers can take advantage of this relief and, knowing only the last name, first name and patronymic of the bank client, make forged document in his name, proving his identity, but different from the one already in the client's bank file. For example, the dossier contains data on the internal passport of a citizen of the Russian Federation, and fraudsters will come to commit expenditure operation on bank account with a military ID, which, unlike a passport, will not be difficult to fake.
Often, for complete identification, there is not enough data that cannot be established in the usual way. For example, in a general civil or foreign passport there is no registration or, as mentioned above, foreign client no immigration card. What to do in this case? There is no unequivocal answer, since according to the law the bank needs to establish these data, but it is not indicated in what way. In our opinion, it is wrong to refuse a client to make a transaction just because he does not have a migration card. Therefore, in order to comply with the requirements of the law, it is necessary to develop some mechanisms for establishing information about the client. For example, if the identity document does not contain a residence permit, then the client could provide a certificate of ownership of the property or a lease agreement. But it is clear that no one carries such documents with them, and it is also unprofitable for the bank to lose customers. Therefore, the client can freely writing state with his signature information about his place of residence or the reasons for the absence of a migration card. His explanations may be kept in his file or in bank documents days, confirming the fact that the bank has taken measures to establish identification data.
A credit institution is obliged to identify a person who is at its service (client) when performing banking operations and other transactions in accordance with the Federal Law "On Banks and Banking Activity". The Bank of Russia has established requirements for the identification of customers and beneficiaries by credit institutions in the Regulations on the identification of customers and beneficiaries by credit institutions in order to counteract the legalization (laundering) of proceeds from crime and the financing of terrorism (approved by the Central Bank of the Russian Federation on August 19, 2004 No. 262-P). A credit institution is obliged to develop and approve a program for identifying customers, identifying and identifying beneficiaries, including the procedure for identifying these persons, as well as the procedure for assessing the degree (level) of risk of the client's transactions
Identification of clients - individuals is carried out on the basis of the collection of established documents and information by the credit institution, the main of which are the following:
surname, name and patronymic;
Date and place of birth;
citizenship;
details of the identity document, series and number of the document, date of issue of the document, name of the authority that issued the document, and subdivision code (if any);
address of the place of residence (registration) or place of stay.
Identification of a client - an individual, establishment and identification of the beneficiary is not carried out:
when organizations carrying out operations with cash or other property carry out operations to receive payments from customers - individuals, the amount of which does not exceed 15 thousand rubles. (or amounts in a foreign currency equivalent to the above);
when an individual carries out a transaction for the purchase or sale of foreign currency in cash for an amount not exceeding 15 thousand rubles. (amounts in foreign currency equivalent to the above);
except when employees credit institution, carrying out transactions with funds or other property, there are suspicions that this operation is carried out for the purpose of legalization (laundering) of proceeds from crime or financing of terrorism.
The documents submitted by the client must be valid on the date of their presentation and drawn up in Russian. Documents drawn up in full or in any part in a foreign language shall be submitted to the credit institution with a duly certified translation into Russian. In case of insufficient information at the disposal of the credit institution necessary to identify a potential client and beneficiary, it can be obtained from other state bodies.
The form recommended by the Bank of Russia for recording the information obtained during the identification of a client and establishing its beneficiaries - a client questionnaire (dossier) - is filled out on paper or in electronic form. Directly its form is determined by the credit institution independently.
According to the Regulation of the Bank of Russia No. 262-P, the following information is included in the client's questionnaire.
1. Information obtained as a result of identification of the client, establishment and identification of the beneficiary.
2. Information about the degree (level) of risk, including the rationale for the risk assessment.
3. The date of commencement of relations with the client, in particular the date of opening the first bank account (bank deposit).
4. Date of filling and updating the questionnaire (dossier) of the client.
5. Last name, first name (unless otherwise required by law or national custom) and patronymic, position of the employee responsible for working with the client, in particular the employee who opened the account and approved the opening of the account, the account curator (if any).
6. Signature of the person who filled out the questionnaire (dossier) of the client on paper (indicating the last name, first name and (unless otherwise follows from the law or national custom) patronymic, position), or last name, first name and (unless otherwise follows from the law or national custom) patronymic, position of the person who filled out the questionnaire (dossier) of the client in electronic form.
7. Other information at the discretion of the credit institution.
By general rule re-identification of the client is not allowed, unless the credit institution has doubts about the reliability of the information received earlier as a result of the implementation of the identification program.
When making certain types banking operations and transactions by a credit institution can be carried out simplified identification . Simplified identification of an individual is provided for when:
money transfers on behalf of individuals without opening bank accounts;
banking operations and other transactions with cash foreign currency and the currency of the Russian Federation, checks (including traveler's checks), the nominal value of which is indicated in foreign currency.
Simplified identification of an individual involves establishing the last name, first name and (unless otherwise required by law or national custom) patronymic, details of the client's identity document.
Simplified identification is carried out only if the following conditions are present in the aggregate (simultaneously):
the operation is not subject to mandatory control in accordance with Art. 6 of Law No. 115-FZ and the surname, name and patronymic, as well as other information about the individual held by the credit institution, do not completely coincide with the information contained in the List of extremists;
in relation to the client, the beneficiary or the transaction, the credit institution does not have suspicions that they are related to the legalization (laundering) of proceeds from crime or the financing of terrorism;
the transaction does not have an intricate or unusual nature, indicating the absence of an obvious economic sense or an obvious legitimate purpose, and the commission of the said transaction does not give grounds to believe that the purpose of its implementation is to evade the mandatory control procedures provided for by the above law.
For transactions with increased level risk, the Bank of Russia includes:
repeated transactions or transactions, the nature of which gives reason to believe that the purpose of their implementation is to evade the mandatory control procedures provided for by Law No. 115-FZ;
transfers of funds by legal entities to (c) bank accounts (bank deposits) of individuals (with the exception of wages and compensations in accordance with the labor legislation of the Russian Federation, payment of pensions, scholarships, allowances and other mandatory social payments provided for by the legislation of the Russian Federation) with subsequent withdrawal by individuals of the said funds in cash or transfers of the said funds to (c) bank accounts (bank deposits) of other persons;
implementation of banking operations and other transactions using Internet technologies.
A credit institution should pay increased attention to transactions with cash or other property conducted by customers classified as having an increased degree (level) of risk.
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