The Higher Regional Court of Hamburg (2 – 63/11 (REV)) issued a ruling on whether fax and email printouts can be considered certificates and rightly denied this:
- A fax copy printed from the recipient’s device is generally not considered a certificate, as it is merely a document that represents a thought declaration, which is essentially reproduced and forwarded to the recipient through a transfer process, similar to a “photocopy” (Fischer, StGB, 59th edition, § 267 para. 19; cf. BGH NStZ 2010, 703). The same applies to the printout of a file sent via email. This printout is merely a reproduction of the file and does not contain the original thought content embodied in the scanned document.
- Only in the specific case where a document was manipulated and, based on its appearance, seemed to be the original of a certificate could the subsequent transmission via fax or email result in the use of a falsified certificate under § 267 (1) of the German Criminal Code (StGB) (cf. BGHSt 24, 140; Fischer a.a.O. § 267 para. 37; contrary opinion: Zieschang LK § 267 para. 217).
A recent ruling by the Federal Court (BGH, 5 StR 488/09) confirmed that a photocopy, which is recognizably a reproduction, does not constitute certificate forgery. In the case in question, the defendant had printed a notarized certificate that had been scanned and altered (whether by the defendant is unclear). The printout created by the defendant differed from the original, and while the regional court considered this certificate forgery, the BGH dismissed it.
In fact, a photocopy can be considered a certificate if the photocopy is designed to appear as an original. This is especially true for notarized documents, where additional features (e.g., a seal) may be missing from the printout. The BGH ruled that:
The mere printout of a computer file did not have the typical authenticity features that characterize a notarized purchase agreement or its execution. It merely reflected an image of another document for the viewer. Thus, it was equivalent to a mere photocopy, which, being a reproduction, lacked evidentiary value and the ability to identify the issuer, and therefore could not be considered a certificate.
An analysis by the OLG Stuttgart states:
A copy should be treated as a certificate if the perpetrator has created a photographic reproduction of an original document and used it to create the appearance of an original certificate, to which the legal transactions attach trust under § 267 StGB (BayObLG, NJW 1990, 1677 [1679]; NJW 1990, 3221; Zaczyk, NJW 1989, 2515 [2517]). If the original issuer authorizes the copy to be used as a replacement for the original or as a duplicate certificate (Gribbohm, in: LK-StGB, 11th ed., § 267 para. 112; Cramer/Heine, in: Schönke/Schröder, StGB, 27th ed., § 267 para. 42b with references), the same applies when the creator of the copy uses it for deception in legal transactions as a replacement for the original (Zaczyk, NJW 1989, 2515).
CONCLUSION:
None of the certificates that can be created online through the “Professional Certificates & Diplomas” web application contain any previously scanned elements of an original certificate. These documents are generated solely through the interaction of the user with the web application, which combines individual graphical elements created by a designer, text components, and user inputs into a virtual composite. The downloadable final product is, until printed on paper, purely a virtual data package and is far removed from the concept of a certificate.
However, caution is advised if such a printout is intended to deceive in legal transactions!