The Decision of the Osnabrück Regional Court (LG)
A decision of the Regional Court Osnabrück (LG) of 26.10.2021 attracted attention. The Regional Court found that the presentation of a forged vaccination certificate in a pharmacy to obtain a digital vaccination certificate was not punishable (LG Osnabrück, the decision of 26.10.2021, ref.: 3 Qs 38/21). §§ 277, 279 StGB regulate the forgery and use of incorrect health certificates. According to this penal provision in their old version, which was valid until 23.11.2021, the presentation of a forged vaccination certificate was only punishable if it was made to an authority or insurance company. A pharmacy, however, was a private company that was not covered by this.
Furthermore, the Regional Court considered criminal offences of §§ 277, 279 StGB as a special regulation for health certificates, which has a blocking effect compared to the forgery of documents according to § 267 StGB. Even if the requirements for the offence under § 267 (1) StGB were fulfilled (production of a false document, falsification of a genuine document or use of a false or falsified document), there was still no criminal liability due to the blocking effect. The offence of falsification of documents was therefore not applicable to health certificates. However, since the more specific regulations did not cover the presentation in a privately run pharmacy, according to the Osnabrück Regional Court, in this case, the use of a forged vaccination certificate was exempt from punishment under the old legal situation.
With regard to this case law, however, there was by no means unanimity. The question was answered differently, for example, by the prosecutors general of Lower Saxony, who considered a recourse to the general offence of forgery of documents to be possible. Today, this question has been clarified by corresponding amendments to the StGB.
Criminal Liability under the StGB: The Legal Situation since 24.11.2021
§§ 277 to 279 StGB criminalise falsifying, issuing, and using incorrect health certificates, including vaccination certificates. Under § 277 (1) StGB, anyone who issues a health certificate for deception in legal transactions for themselves or another person under the designation of a doctor or another licensed medical person to which they are not entitled. This issuing of a health certificate includes, for example, the case of a private person pretending to be a doctor by documenting a Covid-19 vaccination in a vaccination certificate using an imitation doctor’s stamp. The offence is punishable by a fine or imprisonment of up to one year. Doctors and other licensed medical personnel who issue an incorrect health certificate are liable to a custodial sentence not exceeding two years or to a monetary penalty (§ 278(1) StGB).
If the case is severe, the penalty is higher. A prison sentence of three months to five years may be imposed (§§ 277 (1), 278 (1) StGB). As a rule, it is a severe case if the documentation of vaccinations in vaccination certificates is done on a commercial basis or as a member of a gang that has joined forces to continue committing this offence. This regulation was newly introduced with the amendment of the law on 24.11.2021.
Before the change in the law, the offences were only of relevance if the relevant health certificate was used to deceive authorities or insurance companies. This requirement has now been dropped. Thus, the falsification or issuance alone is already punishable. However, even the mere use of a forged health certificate is punishable under Section 279 StGB. According to the new legal situation, it is no longer necessary that the vaccination certificate is used to deceive an authority or an insurance company. Instead, it is generally sufficient to use it to deceive in a legal transaction. Therefore, showing a forged vaccination card in a pharmacy, a restaurant or at an event, for example, is now also punishable without any problems. This covers, for example, showing it in a pharmacy to get a digital vaccination certificate or in a restaurant where the 2G rule applies.
Fogery of documents pursuant to § 267 StGB
In the case of fogery or use of a foged vaccination card, the first thing that comes to mind for many is probably the crime of fogery of documents. Pursuant to Section 267 (1) StGB, anyone who produces a false document, falsifies a genuine document or uses a false or falsified document in order to deceive legal transactions, is liable to prosecution. For the production of a false document, it is important wheter the identity of the issuer is deceived. This is the case, for example, if the performance of a vaccination is entered in a vaccination certificate under the name of a doctor. On the other hand, a genuine document is falsified if, for example, the date of the vaccination is changed in the vaccination certificate without authorization.
While it was still disputed before the amendments to the law whether the special offenses for health certificates bar the other documents offenses, the legislature has now expressly clarified this question. The law now stipulates that the provisions on health certificates are formally subsidiary to forgery of documents. Thus, insofar as the elements of the crime of document forgery are also fulfilled, the perpetrator is punished accordingly. This involves a considerably higher penalty of up to five years’ imprisoment or a fine (Section 267 (1) StGB).
Criminal Liability of Producing and Offering a Blank Vaccination Card
§ 275 (1a) StGB has been added to German law. According to this provision, anyone who produces an incorrect vaccination card by documenting a vaccination that has not been carried out in a blank vaccination card is liable to prosecution. Therefore, it is a vaccination card that has not yet been personalised but already contains a vaccination entry. The same applies to anyone who procures, keeps free, keeps in safe custody, gives to another, or undertakes to import or export such a supplemented blank vaccination card.
The background to this amendment is that when a vaccination is entered in a blank vaccination card without personalisation, it is doubtful whether a certificate or a health certificate already exists. Therefore, there are doubts about the punishability under § 267 StGB for forgery of documents and under §§ 277, 278 StGB. The new provision is intended to criminalise the production and sale of such blank vaccination cards.
Criminal liability under the Vaccination Protection Act (IfSG)
The Infection Protection Act (Infektionsschutzgesetz, IfSG) contains further penal provisions relating to falsified vaccination cards. These regulations have also undergone some changes during the Corona pandemic. According to § 74 para. 2 IfSG, anyone who knowingly fails to correctly document a vaccination against the Coronavirus to deceive in legal transactions is liable to prosecution. However, this only applies to persons authorised to carry out protective vaccinations (§§ 74 para. 2, 73 para 1a no. 8, 22 para. 1 IfSG). A prison sentence of up to two years or a fine is provided for these offences.
The certification in a digital Covid-19 certificate is also explicitly regulated. Anyone who knowingly fails to correctly certify the performance of vaccination in such a certificate to deceive in legal transactions also commits a criminal offence (§ 75a, para. 1, no. 2 in conjunction with§ 22, para. 5, sentence 1 IfSG).
Furthermore, knowingly using incorrect documentation or certificate to deceive in legal transactions (Section 75a para. 3 no.1 and 2 StGB) is a criminal offence. This, therefore, concerns showing the vaccination card with the Corona vaccination or the QR code in the corresponding Covid-19 certificate.
Legal Advice and Criminal Defence by Schlun & Elseven
Our team of lawyers for criminal law will be happy to answer all your questions regarding the criminal liability of forging vaccination cards as well as the sale or use of forged vaccination cards. Should you find yourself in a relevant criminal law situation, our experienced team will advise you in German and English and assist you reliably and competently. The sooner you contact an experienced criminal defence lawyer, the better the chances of your criminal defence. You can reach our law firm via the contact details below. We are available to our clients nationwide with offices in Cologne, Düsseldorf and Aachen and conference rooms in Berlin, Frankfurt, Munich, Stuttgart and Hamburg.