13. November 2012

Altering an e-mail can constitute forgery

X., who was in financial difficulties, received loans from numerous victims in the amount of CHF 6'285'227 and USD 35,000 by giving them false facts in connection with the enforcement of a residual claim he allegedly acquired from a (non-existing) contract between a Nigerian national oil company and a Scottish conglomerate. In this context, he repeatedly altered the content of e-mails addressed to him from third parties, and forwarded these altered e-mails as evidence to different victim.

X. appealed against the judgment of the cantonal court of appeals for commercial fraud, embezzlement and forgery and fought inter alia against the conviction for forgery. He took the view that e-mails without electronic signature did not constitute records (documents in the legal sense) because they can easily be altered and thus lack both the probative value as well as suitability as evidence in the sense of Article 110, paragraph 4 of the Swiss Penal Code.

The Federal Court rejected the view that only an electronic signature can confirm the authenticity of the sender. In the present case, X. was accused of altering e-mails sent to him by third parties and forwarding them on several occasions. The core aspect in this case is the authenticity of the documents (e-mails), so the question of whether the contents of these e-mails were also untrue, does not really matter (BGE 131 IV 125 E. 4.3). Emails that have been printed out by the receiver undoubtedly are documents in the legal sense, if the sender is evident from the document (ATF 116 IV 343 3 E.).

But even e-mails that have not been printed out constitute documents in the legal sense, which is why the alteration of an email fulfills the offense of forgery, if such an e-mail is sent to (and received by) a third party. The (presumed) identity of the sender can be derived from the sender's address (usually) or the content of the e-mail. Furthermore, the suitability of e-mails as evidence is apparent from the fact that e-mails are very commonly used in business transaction nowadays.

(Federal Court‘s ruling in re 6B_130/2012 of October 22, 2012)