Handing over a bank card should not automatically constitute a crime – UNBA

Criminal liability for transferring a bank card or access to an account should arise only if it is proven that the person knew the card or account would be used as a means to commit an intentional crime. The mere fact that a payment instrument was transferred or that an account was used by a third party is not sufficient.

This point was highlighted by the UNBA Committee on cybersecurity and virtual assets, which analyzed the presidential draft law No. 16013 dated September 2, 2026 «On amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine regarding the protection of citizens and their funds from illegal actions involving payment instruments and bank accounts». Comments on the draft law, which was adopted in principle on September 15, 2026, were submitted to the Verkhovna Rada Committee on law enforcement.

According to the authors of the legislative initiative, the amendments are intended to improve measures to counter illegal actions involving payment instruments, personal account information, accounts, and electronic wallets. The UNBA supported this objective and considers Bill No. 16013 to be the most suitable for further refinement compared to related bills No. 16013-1, No. 16014 and No. 16014-1.

Key concerns relate to the proposed new Article 200-1 (Transfer, receipt, acquisition, storage or other acquisition of payment instruments for the purpose of committing a criminal offense) of the Criminal Code.

The UNBA considers such a separate provision justified, as current legislation does not provide a clear answer regarding the classification of the knowing transfer of a card, account information, or access to an account for the purpose of subsequent fraud. However, the elements of such an offense cannot be purely formal.

In the opinion of advocates, liability should arise from knowingly facilitating the criminal circulation of payment instruments, rather than from the mere fact of transferring a card, fulfilling a contract, or providing legal assistance.

Excluding the requirement of specific intent could make lawful or everyday situations criminally punishable: handing over a card to a family member, granting access to an accountant, a representative acting under a power of attorney, an advocate within the scope of legal assistance, a bank employee, or a payment service provider. Therefore, it must be proven that the person was aware that the instrument, information, or access was intended as a means of committing an intentional criminal offense and acted with the intent to facilitate such use.

Separately, it is necessary to define the concept of «access», which must entail the actual ability to initiate a payment transaction or dispose of funds. Merely providing account details solely for the purpose of crediting funds does not in itself constitute granting access.

The UNBA also proposes introducing a special type of exemption from liability for a person who, for the first time, transferred their own payment instrument, but who, prior to being notified of suspicion, voluntarily reported the incident to a pretrial investigation authority or prosecutor and to the payment service provider, took steps to terminate access, actively assisted in identifying the recipients, and prevented the use of the payment instrument for another criminal offense.

In the notes to Article 200-1, advocates believe it is worth stipulating that granting access within the scope of representation based on the law, a contract, or an act of a legal entity’s governing body; the performance of employment or contractual obligations; the provision of legal assistance by an advocate; accounting services; or the provision of payment services permitted by law in the absence of the intent specified in this article does not constitute the elements of a criminal offense established by this article. A mere violation of the terms of a contract with a payment service provider, in the absence of such a purpose, does not constitute grounds for criminal liability. A formal contract does not confer immunity if a criminal intent is proven.

In addition, comments on Draft Law No. 16013 concern the clarification of the elements of the offense provided for in Article 200 of the Criminal Code, the application of criminal law measures to legal entities, the procedure for entering information into the Unified Register of Pre-trial Investigations, the determination of jurisdiction, and the effective date of the law. Regarding the related draft laws No. 16013-1, No. 16014, and No. 16014-1, the UNBA expressed reservations regarding the State Bureau of Investigation’s monitoring outside the scope of specific criminal proceedings, the introduction of liability for establishing an electronic communications fraud organization, and the combination of anti-fraud measures with changes in the area of military registration and conscription. The full text of the comments can be viewed at this link.