The Difference Between Forgery and the Use of a Forged Document
Forgery concerns altering the truth in a document, while the use of a forged document concerns knowingly using that document after the forgery has occurred. Each constitutes a distinct offence with its own legal elements.
Forgery and the use of a forged document are closely connected in practice, yet they constitute distinct offences. Understanding the difference between them requires examining the nature of the act committed, the person responsible for that act, and the knowledge and criminal intent associated with it.
Forgery concerns altering the truth in a deed, document or other written instrument, with intent to defraud, by one of the means prescribed by law and in a manner capable of causing harm to the public interest or to an individual. The use of a forged document, on the other hand, concerns the subsequent use of that document with knowledge that it has been forged.
The distinction is particularly important because the person responsible for creating or altering the forged document is not necessarily the same person who subsequently uses it. Each act therefore requires an independent assessment of its legal elements.
Business insight
The existence of a forged document does not, by itself, determine the nature of every person's responsibility in relation to it. The conduct attributed to each person must be considered separately.
A person may be responsible for creating, drafting or altering the forged document, including adding to it, deleting from it or erasing part of it. Another person may subsequently use that document while knowing that it is forged.
Accordingly, identifying who altered the document, who subsequently used it, and the knowledge and intent attributable to each person is fundamental to distinguishing between the two offences.
“Forgery and the use of a forged document are distinct offences, each with its own legal elements.”
Legal perspective
Forgery is the alteration of truth, with intent to defraud, in a deed, document or other written instrument by one of the means prescribed by law, in a manner capable of causing harm to the public interest or to an individual.
The perpetrator may be the person who creates the forged document, drafts or alters it, adds to it, deletes from it or erases any part of it.
The mental element requires general criminal intent, namely knowledge of the nature of the act and the direction of the person's will towards altering the truth with intent to defraud.
The legal basis for forgery is Article 251 of Federal Decree-Law No. 31 of 2021 Promulgating the Crimes and Penalties Law.
By its nature, forgery is a positive act involving the alteration of truth in a document through improper means. For the offence to arise, the alteration must be capable of causing harm to the public interest or to an individual.
Forgery constitutes an independent offence upon the commission of the act of altering the truth in the document, whether or not the forged document is subsequently used.
The use of a forged document consists of using a forged document with knowledge of its forgery and constitutes an act independent from the act of forgery where its legal elements are satisfied.
The perpetrator is any person who uses a forged document while knowing that it is forged.
The mental element requires general criminal intent together with knowledge, at the time of use, that the document is forged.
The legal basis for the use of a forged document is Article 258 of Federal Decree-Law No. 31 of 2021 Promulgating the Crimes and Penalties Law.
By its nature, the offence involves a subsequent act consisting of the use of a forged document with knowledge of its forgery. Its legal assessment requires consideration of the relevant elements, including knowledge of the forgery and the effect of the act in light of the circumstances of the case and the nature of the document.
Accordingly, the use of a forged document is an offence distinct from forgery itself. It is based on the subsequent use of the forged document with knowledge of its forgery.
Practical considerations
When a forged document is involved, the legal assessment should distinguish between the act of altering the truth in the document and the subsequent act of using that document. The conduct, knowledge and intent attributable to each person should therefore be examined separately.
Determine whether the truth in the document was altered
Identify the person who created, drafted or altered the document
Determine whether anything was added to, deleted from or erased from the document
Assess whether the alteration was capable of causing harm
Determine whether the forged document was subsequently used
Identify the person who used the forged document
Determine whether that person knew of the forgery at the time of use
Assess the criminal intent relevant to each act
Consider the circumstances of the case and the nature of the document
Boardroom question
Where a forged document is involved, can the conduct of each person be clearly distinguished—who altered the document, who subsequently used it, and whether the person using it knew that it was forged?
