The crime of forging a signature on a document in Poland – possible defences

The crime of forging a signature on a document in Poland is one of the most commonly committed offences. Common cases of signature forgery in Poland include:

• forging a driving licence in a situation where the right to drive has been revoked,
• signing on behalf of a spouse,
• signing on behalf of a business partner,
• forging a student ID card,
• altering a prescription,
• copy-pasting a PDF scan,
• using a forged income certificate,
• changing payment dates or amounts in a contract,
• forging a signature on a VAT invoice,
• forging a rental agreement.

The above examples therefore mean, in practice, giving the appearance of authenticity to a document in order to create the impression that the content of the document comes from the person indicated as the issuer, when in fact this is not the case. The offence of forging or altering a document may cover both the entire document and a fragment thereof, including the signature appearing on the document. At the same time, it is irrelevant for the assessment of whether an offence has been committed whether the person whose signature has been forged actually exists or not.

Forgery of a signature in Poland is, of course, punishable by law, and prosecution of this offence is ex officio, which means that law enforcement authorities take action regardless of the victim’s will. The offence is punishable by imprisonment, as according to Article 270 § 1 of the Polish Criminal Code, anyone who, for the purpose of using it as authentic, forges or alters a document or uses such a document as authentic, shall be subject to imprisonment for a term of between 3 months and 5 years.

As in any criminal case, the accused has, of course, the right to defend themselves. There are a number of actions that the accused, or their defence counsel acting on their behalf, may take to seek acquittal or at least a reduction in the sentence. In this article, we present examples of possible defences in a criminal case involving forgery of a signature, i.e.:

1. demonstrating that the forgery of the document is a minor offence and, as a consequence, it is possible to apply an extraordinary mitigation of the penalty,
2. the possibility of challenging the expert’s opinion in a case of forgery of a signature,
3. demonstrating mitigating circumstances that are relevant in determining guilt and imposing a penalty on the defendant.

Minor offence in the case of forgery of a signature in Poland

As indicated above, the offence under Article 270 § 1 of the Polish Criminal Code is punishable by imprisonment for a term of between 3 months and 5 years. At the same time, however, the legislator has provided for a significantly milder form of criminal liability in Article 270 § 2a of the Polish Criminal Code in situations where the perpetrator’s actions constitute a so-called minor offence. In such a case, the perpetrator is subject (only) to a fine, restriction of liberty or imprisonment for up to 2 years, and therefore the penalty is significantly lower than in the case of the act specified in § 1.

For the defendant, the difference in the severity of the penalty is a fundamental circumstance. If the defendant admits to committing the act and there is no doubt that the act was committed, it will undoubtedly be more advantageous for the defendant to have the act recognised as a minor offence. For this reason, the defendant, and in particular his defence counsel (if the defendant is represented by a professional attorney), should, whenever the facts of the case allow, raise arguments aimed at demonstrating that the alleged act was indeed a minor offence. It should be remembered that, pursuant to Article 167 of the Code of Criminal Procedure, the defendant (the defendant’s defence counsel) has the right to take the initiative in presenting evidence in criminal proceedings and, therefore, to submit motions for evidence. Therefore, if, after analysing the facts of the case, the defendant (or the defendant’s defence counsel) considers that there is evidence that could be presented to the court to increase the likelihood of the act being considered a minor offence, this should be done without fail. Examples of such evidence may include evidence indicating the perpetrator’s motivation, i.e. acting under the influence of strong emotions, error, situational pressure, and not the desire to obtain a significant financial gain.

In practice, there is no statutory definition of the term ‘minor accident’; the term is a so-called general clause, i.e. it authorises the judge to make the appropriate decision, taking into account all the circumstances of the case. Therefore, whether a ‘minor offence’ has occurred in a given case will be assessed by the court on the basis of all the evidence. With regard to the offence of document forgery, legal doctrine indicates that “minor offences punishable under Article 270 § 2a of the Polish Criminal Code and Article 271 § 2 of the Polish Criminal Code, are usually cases where the perpetrator issues a document of minor importance in legal transactions and of little harm to its proper functioning (cf. thesis 10 to Article 271 of the Polish Criminal Code, Polish Criminal Code, Commentary edited by M. Filar, Warsaw 2008, p. 1012) .”

A similar view is presented in Polish case law, where it is pointed out that:

‘A minor offence under Article 270 § 2a of the Polish Criminal Code can only be accepted if it is established that the document issued is of minor importance in legal transactions, the circumstance of legal significance is of minor importance in such transactions, or the consequences of certifying untruths are of minor harm.’ (judgment of the Polish Court of Appeal in Białystok, 2nd Criminal Division, of 9 June 2016, ref. no. II AKa 30/16).

‘A minor offence is a privileged form of an act with the characteristics of a basic offence, characterised by a reduced degree of social harmfulness due to the predominance of positive elements of an objective and subjective nature’ (judgment of the Polish Regional Court in Olsztyn, 7th Criminal Appeals Division, dated 18 December 2013, ref. no. VII Ka 1124/13).

Examples of circumstances indicating that the offence committed was of minor importance may include situations where:

1. The forged document is of little significance in legal transactions, i.e. it is not used to make decisions with significant legal, financial or administrative consequences.
2. The circumstances of the case indicate that the act was more of a mistake or carelessness on the part of the accused, for example, combined with ignorance of the legal system in Poland, rather than a deliberate, intentional act aimed at committing a crime.
3. The defendant did not know for what purposes the document would be used.
4. The defendant did not obtain any financial gain from falsifying the document.
5. The forged document was not actually used by the defendant.
6. No actual damage occurred.
7. The defendant leads a stable lifestyle, is in permanent employment, complies with the legal order, and therefore the act committed by the defendant is incidental in nature and there is little likelihood that he will commit the act again in the future.

Minor offence – extraordinary mitigation of punishment

If the offence is considered minor, the Polish court may apply extraordinary mitigation of punishment to the defendant. Extraordinary mitigation of punishment consists in imposing a penalty below the lower limit of the statutory penalty, a more lenient penalty, or refraining from imposing a penalty and imposing a criminal measure. However, it should be borne in mind that the very name of the legal institution, i.e. ‘extraordinary mitigation of punishment’, indicates that these situations will constitute exceptional, unusual factual circumstances, the analysis of which will lead the court to conclude that even the lowest penalty provided for a given offence would be disproportionately severe for the defendant.

Once again, in order to demonstrate the existence of a minor offence, the initiative of the defence counsel seems to be important. When deciding on the application of extraordinary mitigation of punishment, the court analyses all the evidence, i.e. all relevant factual and subjective circumstances. The court will therefore verify, for example, the personality and previous lifestyle of the defendant, their behaviour after committing the offence, previous conflicts with the law (or lack thereof), family relationships, attitude towards their conduct, the incidental nature of the event in the defendant’s life, and the criminological prognosis. Therefore, if there is evidence favourable to the defendant, it should always be presented to the court.

Polish expert witness opinion on signature forgery

In order for the court to issue a conviction (or acquittal) for an offence under Article 270 of the Polish Criminal Code, it is necessary in each case to consult an expert in the field of handwriting and document examination (commonly, though incorrectly, referred to as a graphologist). It is obvious that neither the prosecutor at the preparatory stage of the proceedings nor the court at the trial stage has the specialist knowledge or equipment to carry out a handwriting analysis. At the same time, such findings are crucial for the correct resolution of the case and, consequently, for attributing (or not) guilt to the defendant. It would therefore not be an exaggeration to say that in many cases, a court’s verdict in a document forgery case is based largely on the expert’s assessment rather than on other evidence. Of course, it is not the expert but the court that passes the judgement, but the expert’s opinion is certainly key evidence.

In practice, however, it sometimes happens that the opinion of an expert in handwriting and document examination in a case of document forgery or alteration is flawed. The most common cases include situations where:

• the expert opinion is internally inconsistent, i.e. there are obvious contradictions between the descriptive part and the conclusion part of the opinion, or between the conclusions of the main opinion and the supplementary opinion,
• the expert opinion is unclear, incomplete, does not contain adequate justification for the conclusions, and is characterised by logical errors, for example by presenting conclusions from the opinion without precise justification of how the expert arrived at them,
• the expert opinion was prepared in a manner contrary to scientific criteria,
• the expert used unverified or inadequate research methodology,
• the expert formulated categorical conclusions that are incompatible with the research material, and the conclusions are unambiguous despite the limited, incomplete or poor quality of the comparative material, i.e. the defendant’s handwriting samples.

It should also be remembered that in practice, even before an expert opinion is prepared, errors often occur in the process of comparing documents. For example, it is important that the sample of the suspect’s handwriting is taken by an impartial expert who is not affiliated with either party, and not, for example, by a police officer who is not qualified to perform such tasks. In practice, taking a handwriting sample involves writing a text dictated by the expert, in particular a text that has been (allegedly) forged. Polish case law and specialist literature emphasise that during the collection of the sample, circumstances such as the position of the writer, the surface on which the piece of paper is placed, the hand used for writing, and whether or not glasses or contact lenses are worn should also be taken into account. The expert should also use unbiased material, i.e. signatures (text samples) made in a natural situation, in everyday life. There are, of course, more factors that may affect the validity of a handwriting sample collection.

If, in the opinion of the defendant, the expert’s opinion appears to be flawed, the defendant has the right to raise objections to the expert’s opinion. In accordance with the provisions of the Polish Code of Criminal Procedure, the defendant has the right to request:

• presentation of a supplementary opinion by the expert witness,
• hearing of the expert at the trial in order to clarify doubts regarding the opinion,
• appointment of another expert witness by the court (for example, in a situation where there are still doubts as to the discrepancies between the main opinion and the supplementary opinion),
• exclusion of the expert witness pursuant to Article 196 of the Polish Code of Criminal Procedure if there are circumstances that may undermine their impartiality.

The court cannot ignore such motions, as a judgment based on a flawed expert opinion may result in its reversal on appeal. In practice, although such motions may seem rare, courts do not ignore them, provided, of course, that they are properly formulated and based on a reliable analysis, and do not merely constitute an unfounded polemic with the correct expert opinion. The proper use of this right is an important element of the protection of the accused and ensures the proper course of the evidentiary proceedings.

A practical example from Polish case law:

“The adjudicating body in the case correctly considered the opinion of the handwriting expert (…) to be incomplete. It did not take into account a circumstance that was relevant to the outcome of the handwriting analysis, namely the victim’s state of intoxication at the time of signing the loan agreement. Such a mental and physical state can significantly affect the correctness of writing. It was the duty of the court of first instance to order a graphological examination. (…) For this reason, the appointment of another expert in graphology (…) to prepare another opinion taking into account the indicated circumstance was correct. (…) The District Court had a duty to independently assess the evidence presented by the prosecutor and to order another graphological examination if it considered the previous one to be incomplete, based on the circumstances revealed at the main hearing” (judgment of the Polish Regional Court in Poznań, 4th Criminal Appeals Division, of 2 December 2015, ref. no. IV Ka 1060/15).

Mitigating circumstances in a case of document forgery

When imposing a penalty on the defendant, the court should take into account all mitigating and aggravating circumstances, which is why the defendant’s (or the defendant’s defence counsel’s) objective is to present all evidence that emphasises the mitigating circumstances. Pursuant to Article 33 § 2 of the Polish Criminal Code, when imposing a penalty, the adjudicating body shall take into account, in particular, the type and extent of damage caused by the offence, the degree of guilt, the motives, the manner of action, the attitude towards the victim, as well as the characteristics, personal and financial circumstances of the perpetrator, his family relations, his lifestyle before committing the offence and his behaviour after committing the offence.

Examples of mitigating circumstances may include:

• the perpetrator’s actions under the influence of difficult family or personal circumstances;
• the perpetrator’s actions under the influence of strong agitation caused by harmful treatment of him or her or of other persons;
• actions motivated by considerations worthy of consideration;
• the offender leading an irreproachable life prior to committing the offence and distinguishing themselves by fulfilling their obligations, especially in the field of work;
• the offender contributing or endeavouring to contribute to the removal of the harmful consequences of their act.

A practical example from Polish case law:

“The defendant submitted authentic prescriptions for psychotropic drugs for execution and had one of the forged prescriptions in her possession while preparing to commit the offence. The fact that the defendant should have attached importance to the authenticity of the documents intended for circulation supports the conclusion that the degree of social harm is significant. The defendant was certainly at least aware that she had forged documents in her possession, and she introduced two of them into circulation as authentic. (…) Despite her young age, the defendant’s previous clean criminal record and her stable lifestyle up to the time of sentencing, as evidenced by a community interview, were treated as mitigating circumstances.” (judgment of the Polish District Court for Warsaw-Śródmieście in Warsaw, 2nd Criminal Division, of 3 March 2014, ref. no. II K 1003/13)

Summary

The offence of forging a signature on a document, punishable under Article 270 of the Polish Criminal Code, is one of the offences that occur frequently in court practice and carry a significant risk of criminal liability, including imprisonment. At the same time, this category of cases is not devoid of real possibilities for the defendant’s defence. In Poland a properly planned trial strategy can lead to both acquittal and a significant reduction in the defendant’s criminal liability. However, it is important that the defendant, even at the preparatory stage of the proceedings (i.e. before the prosecutor), exercises his procedural rights and takes active steps to protect his interests. In particular, this applies to conscious participation in the evidentiary proceedings, critical analysis of the material gathered by law enforcement authorities and, if necessary, seeking the assistance of a professional defence lawyer. Failure to respond at the preparatory stage or a passive attitude during the trial may significantly limit the possibilities for an effective defence, even in a situation where the circumstances of the case are in the defendant’s favour.