Legal Definition of a Document under German Law
According to case law, a document is any embodied human declaration of thought that is suitable and intended for use as evidence in legal transactions, and that identifies its maker. Classic examples of documents are certificates, contracts and identity cards. What is particularly important is its evidentiary function in legal transactions.
In other words, there must be a human declaration that is typically linked to a physical object. Indeed, a document does not necessarily have to be made in paper form. However, it is not sufficient if a document can only be viewed on a screen. It is not relevant whether the document is actually described as a document.
Furthermore, it does not have to be a written document, but so-called evidence drawings are also covered. These are evidentiary declarations of thought that are embodied in symbols or signs. These include, for example, vehicle registration plates or the TÜV (technical inspection association) inspection sticker. Even the strokes on a beer mat made by the waiter for the drinks consumed by the guest can constitute a document. This example shows that it is not always easy to see whether one is liable to prosecution for document forgery in Germany by a certain act. An experienced criminal lawyer can help you with the classification.
Special Features to Consider when Classifying a Document as a Forgery
In the case of a compound document, the tangible declaration of ideas is firmly connected to a reference object to form a unit of evidence. This includes, for example, the vehicle registration number, which only constitutes a document in conjunction with the stamp of the registration office and the corresponding vehicle. It contains the declaration that the vehicle in question is registered for public traffic for a certain owner.
If a document is reproduced in any way, the reproductions may also be viewed as official documents. Thus, copies of a document themselves have the quality of a document because they are intended to take the place of the original in legal transactions with the same evidentiary significance. The same applies to copies if they are to take the place of the original. On the other hand, simple transcripts, photocopies, e-mail printouts or faxes are generally not documents. A certified copy does not constitute a document either. The certification merely confirms that there is an original that corresponds to the copy. It should be noted, however, that the certification mark itself constitutes a document.
The Creation of a Non-Genuine Document
According to § 267, para 1 German Criminal Code, there are three different forms of the offence of forgery of a document. Accordingly, a person is guilty of forgery if they produce a false document for the purpose of deceiving legal transactions. A document is false if it does not originate from the person who appears from it as the issuer. The decisive factor is whether there is a deception of identity. This is the case if a false impression is created as to who issued the document.
However, the use of another person’s name does not necessarily constitute the creation of a false document. It is not a forgery of a document if the actual issuer is effectively represented by another person when signing the document. For this to be the case, the signatory must be legally authorised to represent the bearer of the name and must also want to represent them. In addition, the bearer of the name must want to be represented at all.
The use of a pseudonym or alias is also possible, since a mere deception of the name is not covered by § 267 German Criminal Code. This is the case if the author of the document is identified in general or in the specific case in such a way that there is no doubt as to who they are.
Falsification of a Genuine Document and Use of a False or Falsified Document
In addition to the production of a false document, the falsification of a genuine document is also punishable. A genuine document is falsified if the conceptual or intellectual content of the original document is subsequently changed. In the case of a compound document, this can be done by changing the reference object of the declaration of thought. For example, this is the case if the registration number of a motor vehicle is replaced by that of another vehicle.
Finally, anyone who uses a forged or falsified document is liable to prosecution. This means that the document is made accessible to the intended victim in such a way that they may be deceived in how they perceive the document. This can be done, for example, by presenting, handing over or depositing the document. It does not matter whether the document is actually taken into account.
Particularly Serious Case of Forgery
According to § 267, para 3 German Criminal Code, a particularly serious case of document forgery in Germany generally exists if the offender:
- acts on a commercial basis or as a member of a gang which has joined forces to commit fraud or forgery of documents on a continuous basis,
- causes a large-scale loss of assets (from 50,000 euros),
- significantly endangers the security of legal transactions by means of a large number of false or falsified documents, or
- abuses their powers or position as public official or European public official.
This is a non-exhaustive list of potential cases, which as a rule, but not necessarily, constitute particularly serious cases. Even if the requirements of an above-mentioned standard example are met, the judge has the possibility to refrain from assuming a particularly serious case. On the other hand, it is possible to assume an unlisted particularly serious case outside of what is stated above. The decision is based on an overall assessment of the circumstances of the specific case.
What is the Penalty for Forgery of Documents?
Forgery of documents is punishable by a fine or imprisonment of up to five years (§ 267 (2) StGB). The circumstances of the individual case are decisive for the sentencing. For example, whether it is a first offender or a repeat offender and whether a confession has been made need to be considered. In addition, the damage caused is relevant and whether reparations have been made.
If it is a particularly serious case of forgery of documents, the range of punishment is six months to ten years imprisonment (§ 267, para 3, sentence 1 German Criminal Code).
Anyone who commits document forgery on a commercial basis as a member of a gang which has joined forces for the continued commission of offences under §§ 263 to 264or 267 to 269 German Criminal Code is generally liable to a custodial sentence of one year to ten years (§ 267 (4) German Criminal Code). In less serious cases, the range of punishment is six months to five years.
If a prison sentence of more than three months or a fine of more than 90 daily rates is imposed, an entry will be made in the police record.