“Classification of the Acts of ‘Financial’ Hackers Under Article 200 of the Criminal Code of Ukraine” — the topic of a lecture by Iryna Kuzyna, an attorney at Barristers LLP

As part of the “Digital Crimes” module at the LHS School of Criminal Practice, Iryna Kuzina, an attorney at Barristers Law Firm, delivered a presentation. At the beginning of the lecture, she proposed analyzing the provisions of Article 200 of the Criminal Code (CC) of Ukraine: “Forgery of documents for money transfers, payment cards, or other means of accessing bank accounts, electronic money, as well as the acquisition, storage, transportation, or transmission for the purpose of selling forged documents for money transfers, payment cards, or their use or sale, and the unlawful issuance or use of electronic money.”

The lecturer pointed out that Article 200 of the CC of Ukraine does not provide for criminal liability for all violations. For example, criminal liability applies only to the unlawful issuance and unlawful use of electronic money, whereas no criminal liability is provided for the unlawful issuance of bank cards. It is precisely these loopholes in criminal law that hackers exploit to avoid liability for their actions, the lecturer emphasized.

As for the forgery of transfer documents, this crime is most often classified in conjunction with other crimes, such as fictitious entrepreneurship or tax evasion.

Iryna Kuzina also highlighted the absence of a legislative definition of the term “bank card,” the definition of which was contained in NBU Resolution No. 223 “On the Conduct of Transactions Using Special Payment Instruments” dated April 30, 2010, which is no longer in effect. At the same time, the current Law of Ukraine “On Payment Systems and Money Transfers in Ukraine” defines the term “electronic payment instrument” as: “a payment instrument that enables its holder, through a payment device, to obtain information about the funds belonging to the holder and to initiate their transfer.” Thus, the question remains open as to whether the concept of “bank card” is synonymous with the concept of “electronic payment instrument.” The lecturer believes that the defense may interpret the lack of a clear definition of the term “bank card” to its advantage.

Ms. Kuzina also commented on the narrow list of qualifying characteristics in Article 200 of the Criminal Code of Ukraine. Specifically, Part 2 of Article 200 of the Criminal Code of Ukraine provides for only two qualifying elements: “repeatedly” and “by prior agreement among a group of persons.” In the lecturer’s opinion, the legislature should also include qualifying elements based on the amount of damages or the amount of illicit gain.

The lecturer then discussed examples from case law regarding the application of Article 200 of the Criminal Code of Ukraine with the LHS participants.