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Thursday, 06 July 2017 14:59

Co-authorship in the crime of falsehood

The falsification of documents is based on altering the elements considered essential in some of them, or to carry out a simulation of any of these documents. It is a crime regulated in the Penal Code, with several conditions that encompass it in several categories.

The crime of documentary misrepresentation is usually included in one of these categories:

Author and co-author

Who are the co-perpetrators of a crime? Those who carry out jointly with the author the commission of the act object of penalty, by mutual agreement. The Criminal Code also introduces the figure of the inductor, and also that of the necessary cooperator, that is, those persons who have collaborated in the execution of the crime with an action without which said crime would not have been possible. As we see, it is also an author who induces another person, directly, to commit a particular crime. This induction must be decisive for the performance of the action; No bad advice is considered induction, for example.

In the determination of penalties, there is no relationship of subordination, or less responsibility, to the perpetrator or perpetrators of the crime, but anything done by each of them is attributable to all others.

Co-authorship in the crime of falsehood

Until now, it was considered that the offenses of falsehood were attributable only to those who made materially the imitation of signature in public or private documents, or any other action that generated such falsehood.

Much progress has been made in this area in the jurisprudence of the Supreme Court. The High Court considers that authorship in this type of crime is not limited to whoever carries out the imitation of his signature or any other element, but also co-authorship is possible.

The statement of the joint

What effects does the declaration of the coimputado have? Does it constitute legal evidence in and of itself? The doctrines of our highest courts, the Constitutional and the Supreme, have been pointing out some important aspects:

  • The Constitutional Court has made it clear that, from a constitutional perspective, the declaration of a co-defendant in a crime that turns out to be incriminating, is a legitimate test.
  • Despite the legitimacy of this evidence, it is not sufficient to consider the right to presumption of innocence, since it does not constitute evidentiary activity of charge.
  • In order for this incriminating declaration to be considered as proof of minimum charge, its content must be proved sufficiently and in each case separately.
  • The minimum necessary corroboration will be based on the existence of facts, data and external circumstances that have the ability to support "in a generic way" the veracity of the statement.

In legal practice, incriminating statements by coauthors and co-defendants are not sufficient to be considered as charges when they are not supported or supported by other evidence. Traditionally the criterion of the absence of bastard interests in the incrimination has been taken into account. This position is strengthened nowadays with the need to corroborate, externally, the incriminating statements.

Negative requirements in the incriminating statement

Among the negative requirements to consider the co-author's incriminating statement corroborated are the motives recognized as spurious. These include bribery, procedural interest to achieve the absence of guilt, resentments and revenge, personal hatred, obedience to third parties, as well as the lack of grounds on which to base the incrimination.

Writings SF Lawyers