Article 392 Spanish Criminal Code: Forgery of Documents by a Private Individual

Article 392 of the Spanish Criminal Code punishes the private individual who forges a public, official or commercial document, and separately punishes trafficking in and the knowing use of a false identity document. It is the provision applied to invoices created to support a claim, to contracts and powers of attorney signed in another person’s name, to altered driving licences and to the use of a false passport or residence card. The final paragraph makes clear that it applies even where the document purports to belong to another European Union State or to a third State, provided it is used or trafficked in Spain.

Wording of Article 392 of the Spanish Criminal Code

Elements of the offence

1. A document that is public, official or commercial. Invoices, transport documents, insurance policies, banking documents, licences and identity documents fall within these categories; a private letter or an internal note does not.
2. One of the three forms of falsification in article 390.1: altering an essential element, simulating a document so as to mislead as to its authenticity, or attributing to a person a statement he did not make.
3. That the falsification affects an essential element of the document. An immaterial alteration, or one that deceives nobody, is not punishable.
4. For the use of a false identity document, knowledge of its falsity. A person who received the document believing it to be genuine does not commit the offence.

Defence strategy

Absence of a falsification of substance. Spanish law does not punish an innocuous falsification. Where the document reflects a transaction that actually took place, where the signature was affixed with the authority of the signatory, or where the alteration concerns a date or a reference without affecting the substance, there is no offence. The defence reconstructs the underlying transaction from the banking and accounting records, because a document that faithfully records a real operation cannot mislead as to the matter it certifies.

Authority to sign. In commercial and family contexts, documents are habitually signed by one person for another with actual authority, whether express or tacit. A course of dealing in which the practice was known and accepted defeats the offence, because the document does not attribute to anyone a statement he did not make. This is established through the previous documents signed in the same way, the correspondence and the evidence of the person whose signature appears.

Knowledge of falsity in the use of identity documents. For the offence of using a false identity document, the prosecution must prove knowledge. A person who obtained a residence card or licence through an intermediary who represented the process as lawful, and who paid a fee and received an apparently regular document, may lack that knowledge. The defence documents the payments, the intermediary and the appearance of the document, and this argument arises frequently among migrant workers in the province of Alicante.

Concurrence with fraud and the single act. Where the forged document was the instrument of a fraud, the two offences are in concurrence and the sentencing rules differ according to whether the forgery had an existence independent of the fraud. Prosecutors habitually charge them cumulatively without addressing that question. Argued correctly, the classification produces a materially lower aggregate sentence, and where the sums have been repaid it opens the way to an agreed disposition below the threshold for imprisonment.

• Article 401: usurpation of civil status
• Article 250: aggravated fraud
• Spanish Criminal Code by article
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.