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Lawyer and tax consultant Dr. Dr. Bernd Josef Fehn

23. January 2023

The accused issued 19 incorrect #vaccination certificates against payment, which he provided with entries about allegedly performed first and #second vaccinations against the #SARS-CoV-2 virus (#Corona virus) together with #vaccine designation and #batch number, the alleged stamp of a #vaccination center and the imitated or invented signature of an alleged #vaccinator in #vaccination passports created by him or already issued. He was aware that his customers would present the certificates to third parties, such as #pharmacies for the creation of a digital #vaccination certificate or in #restaurants for proof of alleged #vaccinations of their person.

Section 277 of the Criminal Code in the version in force before 24.11.2021 was applied. It read:

“Whoever, under the designation to which he is not entitled as a #physician or as another licensed #medical person, or unauthorizedly under the name of such persons, issues a certificate concerning his or another’s #health condition, or falsifies such a genuine certificate and makes use of it to #deceive #authorities or #insurance companies, shall be punished by #imprisonment for not more than one year or by #fines.”

Since § 277 StGB a.F. is, according to the current ruling of 10.11. 2022 – 5 StR 283/22 – contrary to the opinion of parts of the higher court #Justice is not a special provision that privileges the perpetrator of the falsification of #Health certificates in relation to that of a #Falsification of documents (§ 267 StGB), the #Federal Court of Justice (#BGH) has overturned the #partial acquittal of the first instance competent #Landgericht and referred the case back for a new hearing and decision. Neither the purpose nor the systematic connection of the competing provisions nor the intention of the legislator provide any evidence for a #privilege. A fortiori § 277 StGB a.F. does not develop a “blocking effect” opposite the #forgery of documents (§ 267 StGB), if the facts of the #forgery of #health certificates – as here – are not (completely) fulfilled.

The accused issued a certificate about another #health condition under the designation not entitled to him as #vaccinator or unauthorized under the name of such or falsified such a genuine certificate. However, he apparently did not make use of this to #deceive #authorities or #insurance companies.

The #BGH has now cleared the way for a possible #conviction for #falsification of documents.