In a ruling 6B_262/2024 dated November 27, 2024, intended for publication, the Swiss Federal Supreme Court examines the increased probative value of the COVID-19 credit application form.
On March 26, 2020, A. sent Bank B. a request for a COVID-19 credit facility in the amount of CHF 500,000.00, in favor of the company C. SA. of which he is the director and sole shareholder. The loan was granted on March 27, 2020. The cantonal court criticized A. for having untruthfully confirmed, by signing the COVID-19 credit application form, that the company C. SA was ” substantially affected economically by the COVID-19 pandemic, particularly as regards its sales ” but also that the credit would be used exclusively for ” cover its current cash requirements .
In particular, anyone who, with the intention of damaging the pecuniary interests or rights of others, or of procuring for himself or for a third party an unlawful advantage, creates a false document of title, falsifies a document of title, abuses the actual signature or hand mark of another person in order to fabricate a supposed document of title, or falsely establishes or causes to be established in a document of title a fact of legal significance, or, in order to deceive others, makes use of such a document of title, is guilty of forgery of documents of title within the meaning of Art. 251 of the Swiss Criminal Code.
According to Art. 110 para. 4 first sentence of the Swiss Penal Code, titles include all written documents intended and suitable for proving a legally relevant fact, and all signs intended to prove such a fact.
The Swiss Federal Supreme Court points out that the title of a written document is relative. In some respects, it may have this character, in others it may not. A document’s purpose and ability to prove a specific fact may derive directly from the law, from commercial usage or from the meaning and nature of the document ( Consider. 1.7.2). Notre Haute Cour rappelle encore la distinction entre un faux matériel et un faux intellectuel. Il y a faux matériel lorsque l’auteur réel du document ne correspond pas à l’auteur apparent, alors que le faux intellectuel vise un titre qui émane de son auteur apparent, mais dont le contenu ne correspond pas à la réalité. Le faux intellectuel est donc un titre mensonger, c’est-à-dire que son contenu est faux. Mais un simple mensonge écrit ne constitue pas un faux intellectuel. Le document doit revêtir une crédibilité accrue et son destinataire pouvoir s’y fier raisonnablement. Tel est le cas lorsque certaines assurances objectives garantissent aux tiers la véracité de la déclaration. Il peut s’agir, par exemple, d’un devoir de vérification qui incombe à l’auteur du document ou de l’existence de dispositions légales ( Consider. 1.7.6). La jurisprudence avait déjà retenu qu’aucune valeur probante accrue ne pouvait être tirée de déclarations unilatérales, faites dans le propre intérêt de celui qui les émet, par exemple des déclarations effectuées par un preneur de crédit aux instituts de crédit (ATF 144 IV 13 consid. 2.2.3).
In this case, the Federal Court, basing itself on the relative nature of a document of title, states that a document may be a document of title in certain respects, such as the identity of its issuer, but not in others, such as the accuracy of its content. The COVID-19 credit application form clearly constitutes a document of title within the meaning of art. 110 para. 4 of the Swiss Code of Criminal Procedure, insofar as it proves the legally relevant declarations and undertakings made by the borrower.
Anyone who falsifies the form or forges the signature of the borrower is considered a material forger.
The question of intellectual forgery and the increased probative value of this title is a different matter altogether. On the basis of its established case law, our High Court finds that declarations made by the borrower in his own interest to credit institutes do not enjoy increased probative value. The same applies to the COVID-19 credit application form, even though the form constitutes a credit agreement as soon as it is approved. Such a contract proves that two people have made a specific declaration of intent, but does not establish that the two concordant declarations of intent correspond to the real intent of the stipulants. He proves neither the absence of a defect of will nor the non-existence of a simulation. Only if there are special guarantees that the concordant declarations of the parties correspond to their real will, can a contract in simple written form be qualified as an intellectual forgery. Consequently, the fact that the credit application form COVID-19 leads to the conclusion of a credit agreement does not lead to the conclusion that the declarations contained therein should enjoy increased probative value ( Consider. 1.9.2 and 1.9.3).
The Federal Court draws a parallel between the COVID-19 credit application form and a tax return. Erroneous information on a tax return only serves to prove the items to be taxed, not the accuracy of the information. According to the Mon Repos judges, the legislator did not intend the COVID-19 credit application form to become a written document with enhanced credibility. Rather, because it is in writing, the form serves as evidence of the contractual assurances given by the borrower ( Consider. 1.9.2).
Our High Court also rejects the view of some legal scholars that the COVID-19 credit application form differs from a normal credit contract, due to the self-declaration procedure of the borrower and the need for credit institutions to decide on a large number of applications in a very short time. A general extension of forgery of documents to contractual insurance would result in the transfer of civil contractual disputes to criminal law. Furthermore, the addition to the application form whereby the applicant confirms that the information contained in the application is complete and true is widely used in the conclusion of many contracts, without the said declarations having any increased probative value. As long as there is no legal obligation to tell the truth, confirmation that the information given corresponds to the truth is no guarantee of veracity ( Consider. 1.9.3).
Finally, the Federal Court also rejects the comparison made by legal scholars with the A form, considered by case law as a document with greater probative value, since it has a legal basis, which is also the case for the COVID-19 credit application form. It is objected that legal regulation of the conditions for granting COVID-19 credit was necessary. However, the granting of credit by the state does not in itself allow us to deduce any greater probative value from the declarations of the borrower than from purely private credits.
However, the Federal Court qualified its statement somewhat, noting that not all the declarations contained in the COVID-19 credit application form were of the same nature. In particular, the borrower had to reproduce previous sales figures. He also had to confirm that no COVID-19 credit had been obtained from any other credit institute ; that he had been founded before March1, 2020 ; that he was not bankrupt ; that he was substantially affected economically by the COVID-19 pandemic, particularly with regard to his sales ; and that he had not obtained any other liquidity guarantees. The borrower also undertook to use the loan to cover its current liquidity needs. According to the Swiss Federal Supreme Court, the information and assurances given by the borrower did not, taken as a whole, have greater probative value ( Consider. 1.9.4).
On the other hand, it analyzes some of the assurances given by the borrower. The Federal Court thus denies the increased probative value of the undertaking to use the credit amount to cover current liquidity requirements. This is no more than a contractual commitment to future behavior ; such assurances cannot be verified, even in the case of normal credit ( Consider. 1.9.5).
The same applies to the confirmation that the borrower was ” substantially affected economically “. This concept is broad and open to interpretation. Such damage could vary from one branch to another. Art. 3 al. 1 let. c of the ordinance on joint and several surety bonds COVID-19 of March 25, 2020 does not define the notion of ” substantially economically affected “. The text of the provision suggests other forms of damage other than loss of sales (adverb ” ” in particular) ; the causal link between economic damage and the COVID-19 pandemic is very broad ; the notion of ” substantially ” (” notevole ” in Italian and erheblich ” in German) leaves plenty of room for discretion. The box ticked by the borrower therefore did not prove a precise and objectively established state of affairs, but constituted a self-assessment by the borrower which has no increased probative value ( Consider. 1.9.6).
In the final analysis, the Federal Court held that A.’s conviction for the offence of forgery of documents violated federal law. The credit application form COVID-19 is a document of title within the meaning of art. 110 para. 4 of the Swiss Penal Code, but it does not have sufficient probative value to be considered an intellectual forgery with regard to the assurances given by the borrower that it is “”. substantially affected economically by the COVID-19 pandemic, particularly as regards its sales ” and that it will use the amount of the loan to cover its current liquidity requirements.
However, in an obiter dictum, theFederal Court left open the question of whether the sales figures could be given greater probative value, given that in the case in point they were not erroneous (Consider. 1.9.7). L’on peut regretter que cette question, souvent au cœur des procédures pénales en lien avec les crédits COVID-19, n’ait pas été traitée par le Tribunal fédéral. En effet, cela laisse planer une incertitude malheureuse s’agissant de la possibilité de retenir un faux intellectuel uniquement en relation avec la déclaration émise par le preneur de crédit sur le chiffre d’affaires dont le contenu serait contraire à la vérité. Cela est d’autant plus regrettable que le Tribunal fédéral semble dans une grande partie de son raisonnement retenir que l’intégralité du formulaire de la demande de crédit COVID-19 ne revêt pas de valeur probante accrue, avant d’analyser tout de même la crédibilité accrue de certains des éléments du formulaire, tels que l’atteinte économique substantielle du preneur de crédit ou son engagement à utiliser le montant du crédit pour couvrir les besoins courants de liquidités.
All this will remain relative until the next ruling by the Federal Supreme Court on the increased probative value of the sales figures indicated by the borrower in his COVID-19 credit application.
