The Supreme Court to Review Approach to ATM and Payment Card Theft

The Supreme Court to Review Approach to ATM and Payment Card Theft

Can the withdrawal of cash via an ATM using a forged bank card be considered fraud if no person voluntarily transferred the funds? This question is now the subject of a new review by the Supreme Court.

The panel of judges of the First Judicial Chamber of the Cassation Criminal Court has referred case No. 755/8937/21 to the United Chamber of the Cassation Criminal Court (CCC) for consideration, proposing to depart from a previous conclusion made by another chamber of the Supreme Court. If the new approach is supported, it could significantly alter the practice of classifying crimes involving payment cards and other modern electronic payment methods.

Subject of the Dispute

The case under consideration involves a Polish citizen whom lower courts found guilty of several criminal offences related to the use of skimming equipment, manufacturing forged payment cards, unauthorised interference with computer systems, and misappropriation of bank clients' funds. According to the case materials, the accused installed special devices on ATMs to read information from payment cards and hidden cameras to record PIN codes.

The data obtained were used to produce duplicate bank cards, which were then used to withdraw funds from the victims' accounts. The Dnipro District Court of Kyiv classified these actions, in particular, under Part 3 of Article 190 of the Criminal Code of Ukraine as fraud committed through illegal operations using electronic computing equipment. This approach was also upheld by the appellate court. However, during the cassation review, the Supreme Court questioned the very legal nature of such a crime.

Why the Supreme Court Questioned the Classification as Fraud

The key question for the United Chamber of the Cassation Criminal Court is not the method of stealing funds, but whether a technical system can be considered an object of deception within the meaning of criminal law. According to Part 1 of Article 190 of the Criminal Code of Ukraine, fraud is the misappropriation of another's property or acquisition of the right to property through deception or abuse of trust. Deception is an essential element of this criminal offence. From a legal perspective, it implies influencing the will of a person who, being deceived, voluntarily transfers property or agrees to access it. This was the focus of the panel of judges of the First Judicial Chamber of the Cassation Criminal Court.

The ruling states that deception or abuse of trust can only be directed at a person who possesses will and consciousness and is capable of making decisions regarding the disposition of property. Technical devices, computer systems, or ATMs do not have such properties and therefore cannot be deceived in the criminal-legal sense of the term.

The court noted that during cash withdrawal using a forged bank card, neither the account owner nor bank employees are aware of the transaction and do not express any will to transfer the money. In other words, the owner of the funds does not voluntarily transfer them under the influence of false information, as occurs in classic fraud. On the contrary, the money is withdrawn secretly, and the victim learns about the loss only after the transaction is completed. According to the panel of judges, this circumstance is a characteristic feature of theft as provided for in Article 185 of the Criminal Code of Ukraine, not fraud.

Separately, the Supreme Court noted that manufacturing a duplicate bank card, obtaining a PIN code, or other account details is essentially just a method of gaining access to another's property. In its ruling, the court even draws an interesting analogy: the use of a forged payment card is legally no different in principle from using a lockpick to open a door or another technical means of entering someone else's property. Thus, the method of gaining access does not determine the legal classification of the crime. The decisive factor is the manner in which the property was taken.

For this reason, the First Chamber of the Cassation Criminal Court previously concluded that the use of a forged or stolen payment card, as well as illegally obtained details of a genuine card, may indicate not fraud but secret theft of another's property — that is, larceny.

Why the Supreme Court Decided to Review Its Own Practice

Referring the case to the United Chamber of the Cassation Criminal Court does not mean that previous court decisions have already been recognised as incorrect. Different approaches to applying the same criminal law provision have emerged within the Supreme Court. According to Part 2 of Article 434-1 of the Criminal Procedure Code of Ukraine, if a panel of cassation judges considers it necessary to depart from a legal conclusion previously formulated by another chamber of the Supreme Court, the case is referred to the United Chamber. This mechanism is intended to ensure uniformity of judicial practice. Such a situation arose in case No. 755/8937/21.

The panel of judges of the First Judicial Chamber explicitly stated disagreement with the conclusion set out in the ruling of the Third Judicial Chamber of the Cassation Criminal Court of the Supreme Court dated 9 March 2026, in case No. 712/6681/23. In that case, the Supreme Court concluded that a person who used stolen personal data, a financial phone number, and other electronic identifiers to conduct financial transactions effectively deceived automated banking systems, which perceived them as the legitimate account owner. Therefore, such actions were classified as fraud.

However, the First Chamber of the Cassation Criminal Court questioned the very possibility of such an approach. In the judges' opinion, the automated system merely executes a programmed algorithm to verify details and does not make independent decisions regarding the transfer of property. It has no will or consciousness and therefore cannot be deceived in the legal sense of the term. The court emphasised that the technical process of authorising a transaction cannot be equated with the voluntary will of a person who transfers their property under the influence of deception. For this reason, the use of a forged payment card or illegally obtained bank account details, according to the panel of judges, should be considered only as a method of gaining access to funds, not as a method of misappropriation by deception.

In other words, the Supreme Court has effectively raised a much broader issue than the classification of a specific crime. The judges of the United Chamber must determine whether a technical system can be a "victim" of deception or whether the concept of fraud always implies influence exclusively on a person. The answer to this question will determine under which article of the Criminal Code similar crimes will be classified in the future.

Possible Consequences of the United Chamber's Decision of the Supreme Court

The decision of the United Chamber of the Cassation Criminal Court in case No. 755/8937/21 may become one of the key guidelines for the entire judicial practice regarding crimes involving payment cards, ATMs, and other electronic payment systems. If the United Chamber agrees with the position of the First Judicial Chamber, law enforcement agencies and courts will have to reassess the legal nature of such acts. The focus will shift from the method of gaining access to a bank account to whether the property was transferred voluntarily under deception or withdrawn secretly without any will of the owner. This approach may affect the classification not only of crimes related to skimming of bank cards but also other cases of illegal use of electronic payment methods, bank account details, or digital identifiers.

At the same time, this is not yet the final legal conclusion of the Supreme Court. The referral of the case to the United Chamber indicates only the existence of different approaches to applying criminal law that require harmonisation. According to Part 6 of Article 13 of the Law of Ukraine "On the Judiciary and the Status of Judges," conclusions regarding the application of legal norms set out in Supreme Court rulings are taken into account by other courts when considering similar cases. Therefore, the future decision of the United Chamber will be significant not only for this criminal proceeding but also for forming a unified practice of classifying crimes in the field of modern payment technologies.

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