Banking secrecy is a chance to defend it?

More recently, the disclosure of bank secrecy subject to inspection bodies was in Ukraine is not very relevant. Yes, the intelligence services of major multinational corporations and corrupt government officials and used to be able to receive information which is bank secrecy. As a general rule disclosure of bank secrecy occurred due to "purchase from officials' commercial structures necessary information (such as obtaining information on the accounts of competitors in the ongoing industrial espionage). Sometimes, the disclosure of bank secrecy going directly through abuse of government officials (eg officials NBU) to its position of authority. In exceptional cases, bank secrecy is disclosed pursuant to article 62 of the Law of Ukraine "On Banks and Banking» № 2121-III (as amended) ("Banking Law"), but set there limits allowed lawyers to fend of the bank from unwarranted prosecution requests SBU, KRU, the tax authorities.
In this position, clients of Ukrainian banks could feel relatively calm. In fact, if the Ukrainian businessman, not "crossed the street to the private security services or high-ranking officials - he could be calm to keep their banking secrecy. It was not until the middle of the beginning of 2010.
To begin with I want to remind what a bank secrecy, so in accordance with the provisions of Article 60 of the Banking Act, bank secrecy - that is, information about the activities and financial status of the client, which became known to the bank in customer service or relationship with him in the provision of banking services and the disclosure of which may cause material and moral damage to the client.
And according to the provisions of Article 62 of the Banking Act, the bank is obliged to disclose information, including banking secrecy, at the request of several government agencies - in particular, the Prosecutor General, Security Service, the Interior Ministry, the tax authorities of the State Committee for Financial Monitoring of Ukraine (Gosfinmonitoring).
As part of the financial monitoring of the banks are obliged to carry out a series of internal administrative activities, and identify and gather information about certain financial transactions of its customers, meeting the criteria of "nebagonadezhnyh", "suspicious" transactions.
Not all clients of Ukrainian banks are aware that in August 2010, the Law of Ukraine "On prevention and counteraction to legalization (laundering) of proceeds of crime or terrorist financing» № 249-IV («the Law on financial monitoring") have been changes that have greatly expanded the list of transactions subject to the compulsory financial monitoring. Thus, financial monitoring to date, subject to purchases and sales of real estate, operations, asset management, management bank account or in securities to raise funds for the establishment of legal persons and other operations.
Under the provisions of Article 6 of the financial monitoring, the subjects of primary financial monitoring (including banks), on-demand Gosfinmonitoringa expected to provide further information relating to financial transactions, have been the object of financial monitoring, including the one that is a bank or commercial secret. Article 12 of the financial monitoring provides that disclosure of such information Gosfinmonitoringu not a violation of professional secrets, secrets of insurance, banking or commercial secrecy! This provision of the Act on the financial monitoring of conflict with the provisions of Article 62 of the Law on Banks and Banking Activity, which provides the order of disclosure of bank secrecy. We should not forget that in the event of failure to comply with the Act on financial monitoring, responsible persons financial monitoring entities may be subject to criminal and administrative liability, and in respect of the subject of financial monitoring is possible to use measures of civil liability of up to liquidation.
Furthermore Gosfinmonitoringa, the right to obtain access to bank secrecy, also have the tax authorities. According to subparagraph 20.1.3. Article 20 of the Tax Code (in force since 01.01.2011), the organs of the State Tax Service are entitled to receive from banks and other financial institutions to help and / or copies of bank account, and a court decision - information about the volume and turnover in the accounts.
We arrive at the disappointing conclusion: steeped in corruption, state authorities currently have a fairly wide range of powers to collect information for economic and financial nature (which is a bank or commercial secret).
Certainly when it comes to "high-value customers," banks may try to protect the rights of their clients by using the benefit of the client procedural niceties of providing such information, but because the legislator has not provided a clear mechanism of bureaucratic arbitrariness - hardly even actively sought such protection will be effective. Certainly has the right to challenge the validity of the required information to the public authority in the courts, but this will need to prove conclusively that the requirement of public authority for information, which is bank secrecy charged with abuse of authority or in violation of established procedure.
Now the tendency of "spillover" of clients from large banks to smaller, so larger bank is more reliable in terms of financial stability, but its hard for the client to "control" are often larger banks with words promising to "stand mountain" for the interests of the client - in fact actually share information on demand of tax and regulatory authorities. Smaller banks are financially less secure, but in practice they are more cherished her vip-clients and try to please all customers. In light of the fact that the deputies gave at the mercy of publicans banking secrecy businessmen were related to banking secrecy as problematic and difficult issue.
Lawyers in our tax practice is increasingly called upon uchuvstvovat in litigation relating to the disclosure of bank secrecy. People turn to us commercial banks to seek to protect their customers from bureaucratic arbitrariness. Often, due to extensive experience in this area and a low level of professionalism of civil servants, we can easily continue to win the dispute for the dispute, officials pacified and protecting banking secrecy. But with the adoption of these laws and there have been negative developments in the judicial protection of banking secrecy, because over the past six months, more than five-fold increase in the number of openly "custom" of cases where officials are actually planning to carry out extortion and manifestly abused his authority for selfish interests. I hope that as members of the legal services of banks and bank customers themselves will make all efforts to confront illegal attempts of officials to gain access to banking secrecy.

Nikita A. Bugaev, head of tax practice law firm "Advokatus"