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Expertise

Forgery of documents

Forgery of documents is a criminal offence under, for example, Section 225 of the Dutch Criminal Code. This provision addresses two forms of forgery. The first is preparing falsified documents with the aim of using them (paragraph 1) and the second is using, delivering or having in one’s possession falsified documents (paragraph 2).

Fraud often involves documents that have been falsified, for instance with the aim of concealing accounting anomalies. But when has a document been falsified? The Dutch Public Prosecution Service frequently claims that a document does not correspond to the truth. But what is the truth? To mount a robust defence, it is crucial to build a sold legal and factual argument. Our specialists know what approach is most successful.

Burden of proof on Public Prosecution Service

Irrespective of which of the two forms the forgery takes, it is to be established whether a certain document is contrary to reality (i.e. has been falsified). It is up to the Public Prosecution Service to prove that a document is false. An error in a document is not sufficient proof; the falsity must be intentional.

In our experience, the Public Prosecution Service often tries to establish a certain version of the truth without having sound underlying evidence to substantiate their argument.

Example: forgery of documents and tax fraud

In our practice, we see that a suspicion of tax fraud tends to go hand in hand with a suspicion of forgery of documents, for instance when the matter involves an incorrect invoice or tax return that has allegedly been used to commit the tax fraud.

But the tax ‘reality’ does not always run parallel to the civil reality. A tax-based requalification of the facts or application of the fraus legis doctrine does not automatically mean that the underlying documents are false as they do not detract from the civil reality. A reasonably arguable position (link to page in Dutch) can also play a role in these types of cases. This position can be invoked if, at the time of filing their tax return, the taxpayer was reasonably and objectively justified in believing that their interpretation of the law was correct. If a tax position is reasonably arguable, there is no question of conditional intent.

In addition, the effect of Section 69(4) of the Dutch State Taxes Act can prevent the filing of an incorrect tax return from becoming subject to prosecution as forgery of documents.

In view of the above, the defence needs to be well-versed at tax law and the State Taxes Act when taking on a criminal case involving forgery of documents. We have the required expertise given that another one of our specialist disciplines is tax litigation.

Forgery of documents, money laundering and gain

Forgery of documents is also frequently associated with money laundering  or financial gain. It pays off to be alert when this is the case. What we are seeing is that, in such cases, the requirement of a relationship of cause and effect (link to page in Dutch) is not being met, as a result of which the crime cannot be proved. This may sound like legal nitpicking, but it is of the essence when your interests are involved.

Please do not hesitate to contact us if you have any questions about forgery of documents. Our specialists are here to help.

 

 In a nutshell

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Forgery of documents, money laundering and gain

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J.N. (Judith) de Boer

G.M. (Mariëlle) Boezelman

A.A. (Anke) Feenstra

P.J. (Peter) van Hagen

M. (Maaike) Coenen

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