Article 399 bis Spanish Criminal Code: Forgery of payment instruments

Article 399 bis punishes the forgery of credit or debit cards, travellers cheques and other non cash payment instruments, together with their possession for distribution, their knowing use by a person who did not take part in the forgery, and their possession for fraudulent use.

Wording of Article 399 bis of the Spanish Criminal Code

Elements of the offence

1. A credit or debit card, a travellers cheque or another non cash payment instrument.
2. An act of alteration, copying, reproduction or forgery, or, in the remaining paragraphs, of possession, use or obtaining.
3. In paragraph 2, the intended purpose of distribution or trafficking, which is what distinguishes it from paragraph 4.
4. In paragraphs 3 and 4, knowledge of the falsity, which excludes negligent conduct.

Defence strategy

Delimitation of the four frames. The article contains four frames ranging from one to eight years for conduct which is factually close. Establishing that the accused neither forged the instrument nor held it for distribution, but merely possessed it, reduces the exposure by several years.

Knowledge of the falsity. Paragraphs 3 and 4 require actual knowledge. Where the card was received from a third party, or where its appearance did not reveal the forgery, the subjective element fails and the conduct may amount at most to a fraud.

Attribution of the digital transactions. The correlation between a transaction and a person requires more than the possession of the card. The location data, the video recordings and the identification at the point of sale are the material upon which that attribution is contested.

Concurrence with the fraud. The use of a forged instrument habitually involves a fraud under Article 248 as well. Arguing the medial concurrence, or the absorption, prevents a separate accumulation of penalties for a single course of conduct.

• Article 248 CP: fraud
• Article 390 CP: forgery of public documents by officials
• Phishing and bank fraud in Spain
• Document forgery in Spain

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.