Article 401 Spanish Criminal Code: Usurpation of Civil Status

Article 401 of the Spanish Criminal Code punishes with imprisonment of six months to three years the usurpation of another person’s civil status. The provision is short, but its scope is narrow and frequently misunderstood: it does not punish the isolated use of another name, but the assumption of another person’s identity as a whole, exercising the rights and duties attaching to it. It is the article charged in cases of identity theft, of driving licence and residence applications made in another person’s name, and of the use of a relative’s documents, and the boundary with document forgery and fraud is the decisive question.

Wording of Article 401 of the Spanish Criminal Code

Elements of the offence

1. The assumption of the identity of a real person. Inventing a fictitious identity does not usurp anyone’s civil status and falls outside the provision.
2. An exercise of the rights and duties attaching to that identity, with a degree of permanence. Giving another person’s name once to a police officer is not enough, and is punished, if at all, as an offence against the administration of justice.
3. Intent to pass as that person, and knowledge that the identity belongs to a real and identified individual.
4. The absence of a more specific provision. Where the conduct consists in the material falsification of a document, article 390 or article 392 applies; this article punishes the assumption of the personality itself.

Defence strategy

Absence of the required permanence. The case law requires a global assumption of the identity, not an isolated act. Signing a delivery note, giving a relative’s name at a hotel or using another person’s details in a single online transaction does not amount to the exercise of the rights and duties of that person’s civil status. The defence maps every act attributed to the accused and shows that they do not constitute a course of conduct of passing as the other person, which in a substantial proportion of files results in acquittal or reclassification.

The consent of the person whose identity was used. Where the identity belonged to a spouse, a parent or a sibling who authorised its use, whether for an application, a payment or a formality, the offence is not made out, because the interest protected is that of the person whose status is assumed together with the reliability of the civil register. Establishing that consent requires the direct evidence of that person and the documentary trail of the relationship, and it is a defence that arises with some frequency in family businesses.

Concurrence with forgery and with fraud. Prosecutors habitually charge this article in addition to forgery and fraud arising from the same conduct, which inflates the aggregate sentence. The defence argues absorption: where the assumption of the identity served exclusively to carry out the fraud, and had no independent existence, it is punished as part of it. This submission is made in the pleadings on classification rather than left to the sentencing stage.

Identification of the author in digital cases. Where the identity was used online, the attribution rests on network and device data. The defence examines whether the address relied on was shared, whether the account had been compromised, and whether the material was obtained with the judicial authorisation that the procedural legislation requires for access to traffic data. Evidence obtained without that authorisation cannot be used, and its exclusion frequently removes the only link between the accused and the conduct.

• Article 392: forgery of documents
• Article 249: computer and payment 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.