Ukraine is rapidly moving towards minimizing the use of paper documents through the introduction of electronic document management among state bodies, but document forgery is still one of the most common criminal offenses.
Official forgery in accordance with Article 366 of the Criminal Code of Ukraine is almost always criminalized against a person if he has employment relations with the state, employers and has committed a criminal offense. However, in most cases, lawyers manage to get away from such a qualification of the committed, since law enforcement agencies, usually, do not seriously approach the features of the document itself.
Thus, in order to determine the committed act as forgery of documents, first of all, it is necessary to determine whether the document is official, in accordance with the note of Article 358 of the Criminal Code of Ukraine.
An official document, as the subject of a criminal offense, must meet the following criteria:
• must be drawn up, certified or issued by a person who has the appropriate competence;
• must correspond to the form prescribed by law and necessarily contain the proper details prescribed by law;
• must have a legally significant character, that is, must cause legal consequences in the form of termination, change or emergence of rights and obligations between the person's action and such consequences.
The courts pay special attention to the legal meaning of the document and the consequences that have arisen. Thus, in Supreme Court resolutions No. 724/1590/19 dated November 2, 2022 and No. 727/5768/18 dated February 15, 2021, the courts define excessive criminalization of a person's act as inadmissible. Law enforcement agencies must necessarily establish socially dangerous consequences and a causal relationship.
Therefore, in order to succeed in the case, the lawyer needs to analyze in detail the norm of criminal legislation and determine whether all the criteria of the subject matter of the criminal offense according to Article 358 of the Criminal Code of Ukraine are present.
Oleksandr Chornukha, attorney at Dynasty law & investment