Article 395 Spanish Criminal Code: Forgery of a private document

Article 395 punishes whoever, in order to cause harm to another, commits in a private document one of the forgeries provided for in the first three numbers of Article 390.1, with imprisonment of six months to two years.

Wording of Article 395 of the Spanish Criminal Code

Elements of the offence

1. A private document, that is, one which is not a public, official or commercial document.
2. One of the three forms of forgery of Article 390.1, namely the alteration of an essential element, the simulation of the document or the supposition of the intervention of persons.
3. A subjective element, namely the purpose of causing harm to another.
4. The exclusion of number 4 of Article 390.1, so that a mere untruth in the narration of the facts in a private document is not punishable.

Defence strategy

Exclusion of the ideological untruth. The provision expressly omits number 4 of Article 390.1. A private document whose content is untrue, without any alteration or simulation of the document itself, does not constitute this offence, which is the most productive line of defence.

Purpose of causing harm. The offence requires the purpose of causing harm to another. A document prepared for internal use, for one own records or without any intention of producing effects against a third party lacks that element.

Whether the document is private. The classification of the document determines the applicable provision. Commercial documents are treated as official for these purposes under Article 392, so identifying the exact nature of the document is the first analysis to be made.

Absorption by the fraud. Where the forged document was the instrument of a fraud, the case law habitually treats the forgery as absorbed by the fraud or as a medial concurrence. Arguing that relationship prevents a separate accumulation of penalties.

• Article 390 CP: forgery of public documents by officials
• Article 248 CP: fraud
• Document forgery in Spain
• Fraud defence in Alicante

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.