Indirect false certification (intellectual forgery of documents)
Definition and distinction
Die indirect false certification, also referred to in criminal law as intellectual forgery of documents , represents a specific manifestation of document-related offenses. It differs from direct forgery of documents in that the physical manipulation of a document does not take center stage, but rather the intentional causing of an objectively incorrect public document by a person authorized to certify. Indirect false certification is regulated in Germany in particular by Section 271 of the German Criminal Code (StGB).
Legal basis
Section 271 StGB – Indirect False Certification
According to Section 271 (1) StGB, anyone who causes the competent body or official to falsely certify or attest to a legally significant fact in a public document, intended to be used deceptively in legal transactions, is liable to prosecution. This provision is often considered a catch-all provision, which applies when there is no direct realization of the elements of forgery under Section 267 StGB.
Elements of indirect false certification
Objective elements
The objective elements of indirect false certification consist of the following:
- Criminal conduct: Causing a public certification or attestation of a legally relevant fact, although this fact does not exist in reality.
- Document quality: The record must qualify as a public document, meaning it must be created by a person authorized to certify within their official scope.
- Legally significant fact: The fact must serve as evidence for legal purposes.
- Purpose of deception: The false document must be intended to be used for deception in legal transactions.
Subjective elements
Intent with regard to all objective elements of the offense is required. This means the perpetrator must have acted knowingly with respect to the initiation, the falsity of the fact, the public document, and the intent to deceive.
Circle of offenders
The offender in cases of indirect false certification is usually the person who induces the official or other authorized person to issue the substantively incorrect document, i.e., the indirect perpetrator. The principal offender of the actual false certification is the official, whose criminal liability should be examined from the perspective of direct false certification (Section 348 StGB).
Substantive and procedural law
Public documents
Public documents within the meaning of indirect false certification are primarily those created by authorities or notaries pursuant to statutory provisions for the purpose of certifying legally relevant facts. These include, among others, birth certificates, extracts from the commercial register, notarized contracts, and official certifications. Such documents generally have particularly high probative value in legal transactions.
Legally significant facts
Legally significant facts are understood as information capable of establishing, extinguishing, or modifying rights or obligations in the legal system. Examples include details concerning a person’s identity, the existence of legal relationships, or the fulfillment of statutory requirements.
Exclusions from the offense
Indirect false certification does not exist if only knowledge, opinions, or value judgments are being certified, as these do not constitute facts within the meaning of Section 271 StGB. The offense is also lacking if the certification is made by a person not obliged to verify the truth.
Penalties and legal consequences
Anyone who commits the offense of indirect false certification is, pursuant to Section 271 (1) StGB, liable to imprisonment of up to five years or a monetary penalty. In particularly serious cases (Section 271 (3) StGB), the penalty may be higher.
Systematic classification and purpose of the regulation
The criminal liability for indirect false certification serves to protect public confidence in the truth and reliability of public documents. Precisely because these documents play a central role in legal affairs, state protection against substantive falsifications has special significance.
Distinctions from other offenses
Difference from Section 267 StGB (Forgery of documents)
The classic forgery of documents under Section 267 StGB concerns the creation of a counterfeit document, such as by imitation or alteration of an existing document. In contrast, indirect false certification does not require physical manipulation, but rather the creation of a substantively incorrect public document.
Difference from Section 348 StGB (False certification in office)
While Section 271 StGB concerns the conduct of private individuals or third parties who induce an official to issue an incorrect document, Section 348 StGB directly addresses the conduct of the official themselves. Indirect false certification is therefore particularly relevant where the official acts due to error or unsuspecting involvement.
Practical significance and examples
In practice, indirect false certification plays a particularly significant role in connection with notarial certifications, register entries, or the issuance of official certificates. Typical application cases include false statements to registry offices, registers, or in the context of publicly certified contracts.Example: A person deliberately provides false information about their marital status to the registrar, resulting in an incorrect marriage certificate being issued.
Case law and literature
Case law regularly clarifies the requirements for the elements of the offense, particularly regarding the extent of the notary’s or certifying person’s duty to verify the truth and the distinction between opinions and facts. In the literature, the distinction between indirect and direct false certification is discussed in detail.
Summary
Indirect false certification, also known as intellectual forgery of documents, protects public faith in the correctness of documents by sanctioning the intentional causing of a substantively incorrect certification by a person authorized to certify. It supplements the criminal law system of document-related offenses and is of particular importance in legal practice, especially regarding public and notarial documents, register entries, and official certifications. Precise knowledge of the statutory provisions, the elements of the offense, and the legal distinctions from other criminal offenses is essential for understanding and applying this regulation.
Frequently Asked Questions
When does indirect false certification occur and which legal interest is thereby violated?
Indirect false certification occurs when someone, through intentional action, causes an official or a person specially authorized for public certification, in the exercise of their official certification authority, to create a substantively incorrect document (Section 271 StGB). Unlike forgery of documents (Section 267 StGB), the perpetrator does not forge the document themselves but causes another person, usually the official, to issue an incorrect document. The essential legal interest protected is the trust in legal certainty and factual correctness of public documents, i.e., the evidentiary value of documents in legal transactions. This is intended to prevent third parties from being disadvantaged based on official documents or having to rely on false facts.
How does indirect false certification differ from genuine forgery of documents?
The essential difference lies in how the offense is carried out. In genuine forgery of documents, the perpetrator acts directly, either by creating a counterfeit document or by altering an authentic document. In contrast, in indirect false certification, the perpetrator is only the intellectual originator of the incorrect document; they influence an official, who creates the document in their own name and within their certification authority. The perpetrator uses the official as a “tool”. There is also an objective difference, since in the case of indirect false certification, the authenticity of the document is not in question, but an objectively incorrect content is conveyed under the appearance of a correct document.
Is an error of declaration by the certifying official a prerequisite for criminal liability?
No, an error of declaration by the certifying official is not strictly required. What matters is that the certifying person, due to the deception committed by the perpetrator, produces an objectively incorrect document. False certification can also occur if the official acts negligently or with gross negligence, as long as the decision to act arose from the perpetrator’s inducement and the certifier was unaware of the incorrectness. Criminal liability is generally excluded only where the official intentionally certifies something false, as then liability as an indirect perpetrator is ruled out.
Which groups of persons are typical perpetrators and which are involved as ‘instruments’?
Typical perpetrators of indirect false certification are private individuals, applicants, or contracting parties who, through deception, false statements, or submissions, intentionally induce the official (e.g., notaries, registrars, register officials, government employees) to certify false facts. The ‘instrument’ is always the relevant official or otherwise authorized person issuing the public document, who, due to their special function, produces documents with public credibility. Not every document issuer can be an ‘instrument’ in indirect false certification; it is required that the law provides for increased public faith for that document.
Which documents are covered by the criminal provision?
Section 271 StGB covers only documents issued by a duly authorized public body or person in the exercise of their office and public authority to certify. These include, in particular, entries in the commercial, association, or land register, notarial certifications, civil registry entries, and official certificates. Private documents or those that do not entail special evidentiary power for or against all parties are not covered by the regulation. The substantive statement of the document must be legally significant and confirmed by such a public authority.
In which cases can indirect false certification remain unpunished?
Indirect false certification generally remains unpunished if the erroneously certified fact, according to the so-called ‘intention to certify’ under the relevant statutory provision, is not accorded public faith, meaning the probative value of the document is limited to other aspects. Impunity can also arise if the perpetrator forges only an insignificant secondary matter or if the incorrectness cannot affect legal transactions. A self-determined certification by the official, despite being aware of the falsehood, may also preclude criminal liability, as the perpetrator would then not be an indirect perpetrator but, where applicable, be liable as an instigator or accessory.
What penalties may result from indirect false certification?
Section 271 (1) StGB provides for a penalty of imprisonment of up to five years or a fine for indirect false certification. In particularly serious cases – for example, if the act is committed for commercial gain or as part of a gang – the penalty can be increased. In addition, mitigating or aggravating circumstances may be considered, such as when the act is linked to other offenses like forgery of documents or fraud. Ancillary penalties, such as professional consequences for involved officials or entries in the certificate of conduct, are also possible.
