Fate of Zakharchenko’s billions will be decided in court
The creditors of Nota-Bank are starting the fight for the statement of the offense, which may help them reclaim 9 billion rubles found in the apartment of the Deputy Head of the Department T of the General Administration for Economic Security and Combatting the Corruption (GUEBiPK)
While the police are recording the numbers of banknotes and taking fingerprints from packages seized from the Deputy Head of the Department T of the GUEBiPK under the Russian Ministry of Internal Affairs, Dmitry Zakharchenko, the fight for 9 billion rubles found in his apartment is about to start in court.
The main parties involved are more than a thousand defrauded creditors of Nota-Bank, which owes them a total of 38.4 billion rubles, as of August 1. Given that today the bankruptcy estate equals only 1.6 billion rubles, the billions withdrawn from Dmitry Zakharchenko would suit their needs — that is, of course, if they go to the cash department of the bank. This is an especially valid concern, because the most optimistic estimates show that after all legal procedures are finished, a little more than 11 billion rubles would be left from the initial sum. Up to this moment, according to the Deposit Insurance Agency, the lenders have received writs for 5.9 billion rubles, and the courts are reviewing claims for another 5.2 billion rubles.
Law enforcement officials made the former depositors of Nota-Bank a bit happier, when they reported that the money found at Zakharchenko’s place had previously been stolen from Nota-Bank. They ran into this wonderful treasure almost by accident: during the investigation of the criminal case against the leadership of Nota-Bank, law enforcers learned from wiretaps of some of its employees that they had been negotiating with the leadership of the Department T of the GUEBiPK led by Zakharchenko.
Nota-Bank was among top-100 of Russia’s largest banks, but on November 24 it was deprived of the license. The central bank stressed that the excess value of Nota-Bank’s commitments is more than 26 billion rubles, compared to its assets. A criminal case of money theft was initiated, leading to the arrest of the Financial Director Galina Marchukova and co-owners of the bank Dmitry Erokhin and his younger brother Vadim Erokhin.
Fraud or illegal banker?
Despite these optimistic statements, everything depends on the statements the investigation will use later on. In the end, money can go not to investors, but to the state budget.
Now this huge sum is a material evidence, and while the investigation is ongoing, it is clear that nobody will be able to use them.
"The fate of the money will depend on the corpus delicti stipulated by the circumstances of the Nota-Bank case, - the managing partner of the BMS law firm Alim Bishenov said. The use of fraudulent schemes (Art. 159 of the Criminal Code) provides for the transfer of seized funds to the Deposit Insurance Agency (a trustee in the bankruptcy procedure for Nota-Bank). In this case, the trustee will transfer the funds to the bankruptcy estate for distribution among the creditors of the liquidated bank. If we are talking about the illegal banking activity (Art. 172 of the Criminal Code), the money found in the possession of the arrested will be transferred to the state treasury, in accordance with the confiscation rules for proceeds of criminal activities."
An additional complication is that such significant amount of cash cannot be identified in the same manner as a stolen car (by numbered vehicle units), a lawyer Alexander Mikhailov from Advokat Pro company explained. So much cash could not be stored in the bank at a time. Typically, the currency in such large quantities appears in turnover as a result of the so-called cash-out activities, and the origins of this chain are extremely difficult to trace. Therefore, it is hard to prove that exactly this money was stolen.
"If it is impossible to prove that this money was stolen from Nota-Bank, then, as practice shows, the person who had it will be recognized as its owner by default," Mikhailov said. "These funds may be seized and then forfeited to the state, if it is proven that they were obtained as a result of illegal banking activity and a number of other crimes."
Deposit Insurance Agency will make a final decision
In any case, if the Deposit Insurance Agency wants to obtain the Nota-Bank’s money for lenders, then it must claim to be the injured party, says partner of the Koblev and Partners law firm Ruslan Zakalyuzhny. Until then, lenders have low chances of getting them.
Meanwhile, the agency has not made any statements, and its press service was unable to give a comment on the situation to Life.
A source close to the agency’s management called this money "the skin of bear not caught" and urged to wait for the final indictment. In addition, it remains unknown what time it will take for the investigation and trial to conclude. After all, the average term of liquidation of banks in Russia is about three years. The investigation may last for several the years, and it may well happen that the bank will be liquidated before the sentence comes into force. In this case, the creditors can wave their money goodbye.
However, some lawyers supposed that the Deposit Insurance Agency has already filed a relevant request.
"It is possible that the Deposit Insurance Agency has already done it, such statements are usually not public. And I do not rule out that the statement of the agency could help to establish a connection between the found money and Nota-Bank," a partner of Yukov and Partners law firm Svetlana Tarnopolskaya said.
Guilty or not?
At the same time, Zakharchenko claims that he is innocent, which only complicates the situation with the money. Situations when even such high-profile cases fall apart in court are quite common. What if Zakharchenko is acquitted? This further reduces the likelihood that the money will be returned to the creditors of the bank, as experts note. But neither will they be returned to Zakharchenko.
Given the fact that Zakharchenko’s declared income can be easily verified, in this case, it is extremely difficult to prove the lawful origin of such amount of money, a senior lawyer of Eterna Law Natalya Konovalova said. Of course, he may refer to the fact that the owner of these funds is a third person who may potentially have the source of such income (for example, a major businessman). But even if he does that, the current Code of Criminal Procedure provides for a number of legal mechanisms that allow not to return money confiscated as material evidence. For example, a new criminal case may be initiated against unidentified persons, and this material evidence can be transferred there.
Saburova believes that the Russian authorities violated articles 2 and 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, guaranteeing the right to life, as well as the right to freedom and personal inviolability.