Fake vaccination passports: Has a “criminal liability loophole” been overlooked?
Status: 02.11.2021 6:12 p.m.
According to a ruling by the Osnabrück Regional Court, presenting a forged vaccination card in a pharmacy is not a criminal offense. Criminal lawyers say: the legislature should have worked cleaner.
By Eric Beres and Judith Brosel
It is mainly pharmacies in which fake vaccination certificates are noticed. Since 2G rules have been in place more and more often in restaurants, at concerts or in football stadiums, counterfeits have increased, for example a pharmacist from Rhineland-Palatinate said in an interview Report Mainz.
He doesn’t want to give his name because he wants to protect his employees from radical opponents of vaccinations. In the past four weeks, they had withdrawn almost 30 fakes – almost three percent of the vaccination certificates presented in his pharmacy.
Thousands of preliminary investigations are currently to be carried out nationwide in this context. The State Criminal Police Office of Bavaria shares Report Mainz with that they currently have “more than 600 cases”. So far, 153 criminal charges have been received at the Berlin State Criminal Police Office. In Hamburg, the police recently investigated 113 proceedings.
Had already in April Report Mainz first reported on forged vaccination cards. A month later, politicians added the Infection Protection Act. The goal: to punish counterfeiters and users more severely.
Only falsification by a doctor is punishable
Last week, the decision of the Osnabrück regional court: According to the current legal situation, presenting and producing a forged vaccination card in a pharmacy is not punishable – at least not if the forgery was created by a private person. It is the first decision of a regional court that has become publicly known on this matter.
The court speaks of a “criminal liability loophole” and justifies its decision with paragraphs in the criminal code that specifically refer to health certificates. According to the court, they only criminalize the submission of a falsified health certificate to authorities or insurance companies, but pharmacies are private companies.
According to the changes in the Infection Protection Act passed in May, the preparation or presentation of a false vaccination certificate is only punishable if the certificate was issued by a “person entitled to vaccinate”, for example a doctor.
Criminal lawyer: “serious failure of the legislature”
The Mainz criminal law professor Volker Erb, co-editor of the Munich Commentary on the Criminal Code, says in an interview with Report Mainz, he considers the arguments of the Osnabrück regional court to be “exemplary justified”. From his point of view, the resolution reflects “the prevailing opinion in the specialist literature”.
Particularly incomprehensible for Erb: Why the politicians when adapting the Infection Protection Act in the spring of this year, in his opinion, only criminalized the incorrect issuing of vaccination cards by an “authorized person”, but not falsification by a private person.
“That was basically a serious failure of the legislature,” he says in an interview with Report Mainz. “I cannot understand how this mishap could come about with the legislature. What happened there seems downright amateurish to me.” In his view, the problem of the lack of criminal liability can also be transferred to fake corona test certificates.
Ministry: Criminal law adaptation is being examined
Criminal lawyer Karsten Gaede from the Hamburg Law School shares Erb’s view of the existing criminal liability loophole, but there are also dissenting voices.
The criminal lawyer Eric Hilgendorf from the University of Würzburg cannot understand the reasons given by the Osnabrück regional court. The penal code makes it a punishable offense for anyone who uses a forgery “to deceive authorities or insurance companies”.
And what does the Federal Ministry of Justice say? The ministry shares on request Report Mainz with: “The question of whether the use of false health certificates, such as vaccination certificates, is also punishable against private individuals, has so far been assessed differently and has not been clarified by the highest court.” One is currently examining, also with a view to the decision of the regional court, “whether criminal law adjustments are necessary in this area.”
“That has been snored”
But this could and should have happened long ago, says the North Rhine-Westphalian Justice Minister Peter Biesenbach (CDU), who chairs the Justice Ministers’ Conference this year. Already in June he and all the justice ministers of the federal states pointed out the “need for reform” of the current legal situation. The Osnabrück decision is therefore no surprise to him.
In an interview with Report Mainz he says: “As a normal citizen I would shake my head and say: If that is recognized and if it is also so clear, then it cannot be that no one who is responsible reacts. So there are none here either Justification. The thing was simply missed here. To put it bluntly: It was snored. “
The North Rhine-Westphalian NRW Minister of Justice Biesenbach expresses sharp criticism of the existing legislation.
For the SPD health politician Karl Lauterbach, the Osnabrück decision sends a devastating signal. He says that such a legal situation is “in no way acceptable”. Fake vaccination certificates are a big problem that he believes has received too little thought. The current situation endangers people and could “lead to the fact that we can no longer recognize the certificates that are real.”
According to the “Federal Association of German Pharmacists’ Associations” (Abda), 45 million vaccination cards have been digitized in pharmacies so far.