On 2 June 2026, the Court of Cassation once again issued a judgment on the scope of the offence of forgery of documents (Articles 193 et seq. of the Belgian Criminal Code).
Under Belgian law, forgery only applies when the falsification pertains to a so-called "document protected by law". However, the legislator does not define when a document meets this criterion. Traditionally, the Court of Cassation held that the law only protects documents that can serve as evidence and whose addressee may rely on their veracity without having to verify the document (the so-called "verification criterion"). False statements in an invoice, for example, generally do not constitute criminal forgery of documents, since the recipient of that invoice is presumed to verify and accept the invoice.
In a landmark judgment of 28 May 2025, the French-language division of the second chamber of the Court of Cassation expressly departed from this case law. The decision to abandon the verification criterion was strongly criticised by legal scholars, in part because this criterion is considered a necessary condition to prevent every mendacious unilateral statement in an invoice from being classified as criminal forgery. With the recent judgment of 2 June 2026, the Dutch-language division of the second chamber of the Court of Cassation appears not to follow this controversial change of course and reaffirmed its established case law.
Forgery of documents in a nutshell
Forgery of documents requires four constitutive elements under Belgian law. Specifically, there must be (i) a "document protected by law" (ii) containing a falsehood or falsification, (iii) by which the perpetrator fraudulently or with the intent to cause harm (iv) causes potential prejudice. The first condition in particular has been the subject of debate in case law and by legal scholars in recent years.
The Criminal Code does not specify which conditions a document must meet to be protected by law. This condition is therefore further developed through established case law of the Court of Cassation. The Court traditionally held that it must concern a document in the strict sense, whether or not in digital form, in which a thought is expressed that has legal significance and that commands public faith. A document commands public faith when it can, to a certain extent, serve as evidence, such that authorities or private persons who take note of it or to whom it is submitted may be convinced of its veracity or are entitled to place trust in it. A document that only has evidentiary value after acceptance by the addressee does not, as a rule, command public faith. In that case, it is for the addressee of the document to verify the accuracy of the statements, insofar as this is not impossible or has not been made impossible by the perpetrator.
False statements in an invoice do not, in the relationship between the issuer and the recipient, generally constitute criminal forgery of documents, since the recipient of that invoice is required to verify and accept the invoice. However, when the recipient of the invoice is unable to verify the stated entries, for example because false supporting documents were attached to "prove" services that were in fact never provided, the recipient of the invoice may reasonably assume that those statements are true and, consequently, forgery of documents may be established if the other constitutive elements are fulfilled.
Abolition of the verification criterion by the judgment of 28 May 2025
In a judgment of 28 May 2025 (P.25.0159.F), the French-language division of the second chamber of the Court of Cassation expressly departed from that verification criterion, reasoning that neither Article 196 of the Criminal Code nor any other legal provision provides for such a condition in order to establish forgery of documents. It is, indeed, a purely jurisprudential creation, albeit one that had been endorsed by the Court of Cassation for decades.
This reversal was criticised by legal scholars, particularly in the context of false invoices where the verification criterion is considered a necessary condition to prevent every false unilateral statement in an invoice from being classified as criminal forgery. Moreover, this position also appears difficult to reconcile with the new Criminal Code, which in principle comes into force on 1 September 2026. Article 451 of the new Criminal Code provides that “Forgery of documents or other durable media is the production, with fraudulent intent or with intent to cause harm, of false documents or the falsification of the expression of a thought in any document or on any other durable medium which, in connection with a legally relevant fact, can serve as evidence” (emphasis added). Moreover, the explanatory memorandum to the Act explicitly refers to the classical case law of the Court of Cassation regarding documents that command public faith (Explanatory Memorandum, pp. 416-418).
In other words, the legislator did not intend to fundamentally reform the offence of forgery of documents on this point.
Return to the verification criterion by the judgment of 2 June 2026
In its recent judgment of 2 June 2026 (P.26.0206.N), the Dutch-language division of the second chamber of the Court once again aligns itself with its earlier, classical case law. The facts concern fraud in a loan application through the use of a false document, in which the defendant fraudulently stated that he was employed by a certain company and that he received a monthly salary in connection with that employment. In his submissions on appeal, the defendant argued that this forgery does not enjoy public faith, because the bank was required to verify this information and that therefore there is no document protected by law.
The Court of Cassation held that: “[a] document that only has evidentiary value after acceptance by the addressee does not, as a rule, command public faith. In that case, it is for the addressee to verify the accuracy of the statements contained in the document, insofar as this is not impossible for him or has not been made impossible by the perpetrator” (legal consideration five of the judgment).
In other words, the Court reiterates the classical definition of a "document protected by law that commands public faith" and the verification criterion that flows therefrom. Furthermore, the judgment states that this verification obligation for the bank does not mean that the false statements can never serve to a certain extent as evidence. In order to determine whether statements in a document can serve to a certain extent as evidence for the addressee and therefore command public faith, the court may rely on the normally expected behaviour of a reasonable and prudent addressee, given the context in which the document is presented. In the present case, the court of appeal held, among other things, that the bank could not verify whether the defendant had in fact had years of regular income as stated in the loan application. The appeal in cassation brought by the defendant was dismissed.
With this case law, and in particular legal consideration five of the judgment, the Dutch-language division of the second chamber of the Court of Cassation has returned to the traditional interpretation of the definition of forgery of documents. This interpretation is a more durable approach to forgery of documents that closely aligns with Article 451 of the new Criminal Code, which explicitly includes the requirement of a "document that can serve as evidence in law" as a condition of application. It remains to be seen, however, whether the French-language division of the second chamber will align itself with this view, or whether a ruling in joint chambers will prove necessary to achieve uniform case law.
Please do not hesitate to contact should you have any further questions on this subject or on the impact of the new Criminal Code for your business.
