THE BOTTOM LINE
- Advisors Face Co-Perpetrator Charges: This ruling confirms that consultants who provide strategic or “intellectual” contributions to a client’s fraud can be prosecuted as co-perpetrators, not merely as accomplices. Actively helping to create a false narrative is enough to share full criminal liability.
- Backdating Records is Criminal Forgery: Fabricating or backdating business records to secure a regulatory advantage (in this case, valuable phosphate rights) constitutes criminal document forgery. Courts will look past the final document to the fraudulent data it is based on.
- Informal Communications Are Hard Evidence: Wiretapped phone calls and emails between the company and its advisor were central to the conviction. “Brainstorming” sessions on how to make false information appear credible can and will be used by prosecutors as direct evidence of intent.
THE DETAILS
In a case with significant implications for corporate advisors and consultants, the ‘s-Hertogenbosch Court of Appeal upheld a conviction against a dairy farm and its advisory firm for co-perpetrating document forgery. The case revolved around an attempt to secure a more favorable allocation of phosphate rights, a valuable and highly regulated asset in the Dutch agricultural sector. The company submitted documents to the Netherlands Enterprise Agency (RVO) claiming it had to discard over 113,000 kilograms of milk in the 2015 reference year due to widespread animal sickness, which would have inflated its production figures and resulted in more phosphate rights.
The court found that the documents, including a “specification of non-delivered milk,” legally constituted forgery. The core of the fraud was not necessarily the claim of discarded milk itself, but the fabricated evidence created to support it. The investigation revealed that the farm, guided by its advisor, had constructed false records of veterinary medicine treatments after the fact. This backdated paperwork was designed solely to provide a plausible, but untrue, justification for the production numbers they needed. The court determined these documents were created with the clear intent to be used as genuine and untampered evidence to mislead a government agency, meeting the threshold for forgery.
Crucially, the court held the advisory firm and its consultant fully liable as co-perpetrators. The defense argued their role was merely advisory, but evidence from wiretapped phone calls painted a different picture. The advisor was recorded actively strategizing with the client on how to “juggle the numbers” and make the fabricated medicine logs appear “believable.” He provided specific advice on how to construct the false data and ultimately submitted the fraudulent application package to the authorities. The court ruled this level of “close and conscious cooperation” and “intellectual contribution” went far beyond standard advice, making the consultant a central actor in the criminal scheme.
SOURCE
Source: Gerechtshof ‘s-Hertogenbosch
