In the previous blog in our bankruptcy fraud series , we covered the deceptive bankruptcy fraud . This time we explain what forgery is.
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Forgery, what does the law say?
Committing forgery is punishable under Title XII of the Penal Code. Articles 225 to 235 determine when someone is guilty of this. Article 225 forms the basis for this. Forging a written document that is intended to serve as evidence of something is punishable if this is done with the intention of using it (or having it used) as genuine. The punishment? Up to six years in prison or a fine of up to €90,000.
Whoever then deliberately uses the forged piece as if it were genuine will receive the same penalty. Special forms of forgery include forging authentic deeds (such as notarial deeds), medical statements and testimonials. In these special cases, instead of six years, seven years imprisonment. Forgery of written documents also occurs in bankruptcy situations. We would like to give you an interesting practical example.
Forgery in bankruptcy practice
A telling case about forgery in a bankruptcy situation is the following. The suspect was a director of a BV This BV was declared bankrupt in 2009 by the court in Amsterdam. In the period that followed, the driver came into the crosshairs of the Public Prosecution Service (OM). The Public Prosecution Service suspected him of fraudulent bankruptcy and forgery, among other things.
For example, the director allegedly deliberately used several forged invoices (from other group companies) by handing them over to the trustee. In this way, the director would have wanted to reduce a high claim of the bankrupt BV against these group companies. The forgery would appear, among other things, from:
- deviating bank account and VAT numbers on the invoices;
- the use of the old name of the bankrupt BV; and
- a different layout of the invoices compared to other regular invoices.
The court convicted the driver in 2015 for a number of facts, including forgery. However , the Amsterdam Court of Appeal decided in 2018 to acquit for this fact. According to the Court of Appeal, the file did not contain sufficient evidence to suggest that invoices were deliberately falsified. Incidentally, it seemed to play a role in this that the Public Prosecution Service did not seem to have the file completely in order.
For example, an element was missing from the summons and an important witness was not (sufficiently) questioned. The director was convicted by the Court of Appeal for fraudulent bankruptcy. He appealed against that conviction to the Supreme Court. On March 22, 2022, the Supreme Court decided that the Court of Appeal was right. Only the length of the prison sentence imposed was reduced, from 21 to 19 months.
If you, as a director, have to deal with a trustee who has doubts about the authenticity of your administration, with criminal prosecution or with an opposing party who has committed forgery, please contact us. We are happy to help you.