A new crime of obstruction of justice and its impact on submitting means of evidence
With effect from 1 February 2019, a new provision of Section 347a was introduced in the Criminal Code (Act No. 40/2009 Coll., the Criminal Code, as amended) stipulating a crime of obstruction of justice. Its substance is the effort to prevent obstruction of just decisions of a court or another body by proceedings participants supporting their statements by submitting forged or modified evidence.
What does obstruction of justice mean?
The crime of obstruction of justice may be committed in two ways. Our article will only focus on the state of facts in Section 347a (1) of the Criminal Code that is quite controversial for both the professional and general public. This state of facts introduces the punishability of submitting forged or modified evidence as authentic in proceedings before court or an international body of justice or in criminal proceedings.
For committing this crime, perpetrators may be punished by a prison sentence with a term of up to two years. If additional conditions stipulated by the Criminal Code are met, perpetrators may be subject to a stricter sentence with imprisonment of up to ten years.
Before the crime of obstruction of justice was introduced, only submitting a false expert opinion or public deed was punishable with respect to submitting evidence. From now on, submitting practically any forged or modified means of evidence (both documentary or material) that has a substantial impact on a decision as if it were authentic may be punished. It will be up to the court to decide whether the evidence has a substantial impact on the decision.
At the same time, the perpetrator has to act with the intention to submit forged or modified evidence as authentic. An act of a person submitting forged or modified means of evidence without having any reason to doubt its genuineness and authenticity is thus not relevant in terms of criminal law.
The last legal condition is that such evidence must be submitted as part of court proceedings, in proceedings before an international body of justice or law enforcement authority. The crime of obstruction of justice thus does not relate to submitting forged or modified means of evidence in, for example, administrative or tax proceedings. This brings us to the question of how the courts will interpret a situation in which a plaintiff in court proceedings following immediately after administrative proceedings refers to forged or modified means of evidence submitted in administrative proceedings and filed with an administrative body in order to support the plaintiff’s statements. In our opinion, there is a chance that these means of evidence may be understood in the future as being “submitted” by the plaintiff in proceedings before court and the plaintiff may become a perpetrator of the crime of obstruction of justice.
How will this issue be treated in practice?
In our opinion, a crime may be constituted typically in situations in which a plaintiff in proceedings before court intentionally submits a purposive backdated contract in order to simplify supporting legitimacy of the plaintiff’s claim raised as part of the legal action. If there is any suspicion that the evidence was forged there is a threat of criminal prosecution of the plaintiff on the grounds of a crime of obstruction of justice. The prosecution may be started, for example, at the initiative of a judge who advances the case to the police or a public prosecutor. In this situation, the court proceedings may be suspended until it is resolved whether forged or modified means of evidence were submitted by the plaintiff. A situation in which court proceedings are extended by months or years may easily occur. There is also a chance that a defendant against whom the plaintiff’s claim is raised may use this approach to cause delay in the proceedings.
In addition to the example above, a similar approach may be easily applied to submission of backdated invoices, fictitious acceptation of debts or falsified transport documentation.
Will the introduction of the new crime effect the relation between a client and an attorney at law or a tax advisor?
An attorney at law is bound by the Code of Ethics that prevents him from verifying whether the client’s statements are true or complete. Attorneys at law are not authorised to ask clients whether a deed (or any other means of evidence) submitted by clients is authentic or forged/modified. Clients thus do not have to worry that attorneys at law will cast doubts on any deeds submitted by their clients.
On the other hand, an attorney at law is a client’s representative who in fact submits the evidence. Thus, attorneys at law may ask their clients to sign amendments to agreements on the provision of legal services by which clients will be informed about the possible consequences of submitting forged or modified means of evidence.
The situation of tax advisors may be rather different as the above rule does not apply to tax advisors and the Chamber of Tax Advisers of the Czech Republic does not bind its members to follow any such rule. Although tax advisor’s activities will be more typical in administrative and tax rather than court proceedings as stated above, certain circumstances may occur in which the crime of obstruction of justice may be constituted by submitting forged or modified evidence in the pre-trial part of proceedings (administrative or tax proceedings). In the absence of the above-described rule, tax advisors may start reviewing documents submitted by their clients more carefully for prudence reasons.
In our opinion, the most probable consequence of the situation will be that clients will be asked by their attorneys at law or tax advisors to sign a declaration that the evidence provided to the attorneys at law or tax advisors to be submitted is authentic and the client has no doubt of its authenticity. We believe that the preventive measures adopted by attorneys at law or tax advisors will not have (and may not have in issues such as confidentiality) any effect on their relations with clients. Clients thus do not have to worry that their relations with their legal and tax advisors will be substantially altered in the forthcoming future.
The article is part of dReport – April 2019, Tax news; Grants and investment Incentives.