Last week, the Osnabrück Regional Court used a term that draws the attention of legal politicians: the criminal liability loophole.
The large criminal chamber decided that anyone who presents a forged vaccination card to the pharmacy in order to get a digital vaccination certificate is not making itself a criminal offense under the current legal situation.
This is a problem for the fight against the pandemic: Unvaccinated people can use forged vaccination cards to gain access to restaurants, concerts or other events that are only open to vaccinated people.
According to the Federal Association of German Pharmacists' Associations, 45 million vaccination cards have been digitized in pharmacies so far.
Once this has happened, there is no longer any way of checking whether the vaccination certificate is forged.
Helene Bubrowski
Political correspondent in Berlin.
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The more often the 2G rule is applied, the more active the counterfeiters become. State criminal investigation offices report that charges because of forged vaccination cards are skyrocketing - now they must stop the proceedings. Because the Federal Ministry of Justice apparently does not intend to change the penal code quickly. The ministry announced that it was checking whether adjustments to the criminal law were necessary.
The Union parliamentary group in the Bundestag does not want to wait for it. According to information from the FAZ, she wants to introduce a bill to the Bundestag next Thursday that is supposed to close the gap. "Anyone who forges vaccination passports or uses such forgeries knowingly endangers the life and health of other people and shakes trust in society," says Jan-Marco Luczak, legal policy spokesman for the Union parliamentary group. According to the draft law that the parliamentary group is due to pass on Wednesday, there is a risk of up to ten years imprisonment for falsifying health certificates proving vaccination against communicable diseases and for using them.
When paragraphs 277 and following of the penal code came into being, digital vaccination certificates were out of the question. Only the falsification of health certificates to deceive authorities or insurance companies is punishable. A pharmacy, however, is not an authority, but a private company. The Osnabrück Regional Court therefore came to the conclusion that the offense had not been met. In the draft law of the Union parliamentary group there is therefore no longer any mention of deceiving authorities, in future the forgery of health certificates or their use “for deceiving legal transactions” will be punishable. The previous restriction is no longer appropriate, according to the explanatory memorandum.
The draft law regulates the deception of vaccination certificates for communicable diseases as well as gang and commercial falsification as a particularly serious case of simple falsification of health certificates. The sentence, which was previously a maximum of one year, has been increased to two years. The CDU politician Luczak points out that the problem has been known for a long time. As early as May, the Union asked Justice Minister Christine Lambrecht (SPD) to act, he says. The Justice Ministers' Conference also unanimously pleaded for an amendment to the criminal code in June.
In the ministry, however, it is pointed out that other courts judge the legal situation differently than the Osnabrück Regional Court.
In October, the Wolfsburg District Court sentenced a man to a fine who wanted to have his forged vaccination card digitized in a pharmacy.
However, the court did not rely on the fact that health certificates were falsified, but on the falsification of documents.
It is controversial whether this standard is applicable in this case.
In the opinion of the Osnabrück judges, the standards on the falsification of health certificates are privileged compared to the falsification of documents, so that recourse to the stricter regulations is inadmissible.
Large parts of science see it that way too.