A document which is an obvious falsification of a private document, excludes the commission of the offence of falsification. This was held in a judgement delivered on 12 August 2019 by Magistrate Dr Joseph Mifsud in Pulizija -v- Elexey Eremichev and Roman Shirinyan.
The two Russians were accused of making use of a false document in June 2019 and of being in possession of objects that were used for fraud.
Magistrate Mifsud analysed the evidence produced: the prosecuting inspector Christabelle Chetcuti told the Court that on 12 June 2019, she received a report from Lombard Bank in Valletta, that two Russians tried to cash false documents for USD1.5 million.
The bank manager explained to the police that the accused had in their possession four bearer bonds certificates. These had finished from circulation around 30 years ago and there was a recent looking logo of the bank. The bank suspected that this was a scam.
The accused explained to the police that they had travelled to Malta to verify these certificates, however, before doing so they sent emails to the bank and even rang them up, but the bank did not reply.
Therefore, the only option was for them to travel to Malta and verify personally.
The bank manager confirmed that the bank received the emails and did not reply for security reasons, as they feared that someone was trying to get access to the bank system.
The Court expert reported to the Court stating that the certificates had the same serial number, however, there were no security features, such as the type of paper and ink used. The document was certainly not authentic.
Alexey Eremichev testified that the certificates were inherited by a friend of his who needed assistance to verify whether they were authentic.
He had contacted another friend who worked at a bank in Russia, who tried to contact Lombard Bank in Malta by email and phone. Once there was no reply, they decided to go to the bank personally and therefore, travelled to Malta.
When he entered the bank he spoke to an official, who took the certificates and said that these were not valid. He insisted that all he wanted to do was to see whether they were valid certificates.
As to the legal consideration, the Court held that the prosecution must prove its case beyond reasonable doubt, however, this does not mean that the proof must beyond the shadow of a doubt.
The first charge is of knowingly making use of a false document, which is a different offence from falsification.
The latter is the participation in creating the falsified document.
It is not sufficient that it is proved that the document is false, but it must also be used.
The Court did not find the accused guilty of this charge mainly because they had tried to contact the bank to check whether the documents were authentic or not. This is before they came to Malta.
This would be different if they would have come to Malta, without trying to verify the certificates and tried to cash them straight away. Both accused had told the police that they wanted to verify whether the documents were genuine. The Court pointed out that when they tried to obtain information, this did not involve the use of the documents.
The Court then turned to the second charge of having possession of an object that can be used for fraud. According to a previous judgement Il-Pulizija -v- Bessam Abdulhamid, decided on 3 December 2018, the criminal intent required is generic intent and that the defendant should have the article for the purpose in connection with a crime of fraud.
Again the Court did not find the two accused guilty of this crime. Magistrate Mifsud held that the certificates had the same serial number and did not have any security feature.
The bank employees and the police noticed straight away that the documents were not valid.
Furthermore, the certificate contained spelling mistakes. The Court applied a legal principle where the use of document which is obviously false, is not a crime.
The Court found the two accused not guilty of the two charges, but confiscated the documents.
Av. Malcolm Mifsud
Mifsud & Mifsud Advocates
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