Document forgery covers the alteration, fabrication or untruthful completion of documents. It is one of the most frequently charged offences in Spanish economic crime cases, and it rarely appears alone. It usually sits alongside fraud, tax or corruption charges as the means by which the main offence was carried out.
This article explains how the Criminal Code structures the offence, why the type of document matters more than anything else, and where the defence usually focuses.
What counts as a document
Article 26 of the Criminal Code defines a document as any physical medium that expresses or incorporates data, facts or narratives with evidentiary value or other legally relevant effect.
The definition is deliberately wide. Electronic records, digital files and signed images all fall within it, provided they carry legal effect.
The four forms of falsehood
Article 390 sets out four ways the offence can be committed.
- Altering a document in one of its essential elements.
- Fabricating a document, wholly or in part, so as to mislead about its authenticity.
- Recording in a legal instrument the participation of people who did not take part, or attributing to those who did statements they never made.
- Recording facts untruthfully.
The fourth form is often described as ideological falsehood. The document is genuine, but its content is false.
Why the type of document changes everything
The penalty depends far more on the category of document than on the conduct itself.
Public, official and commercial documents
Where a public authority or official commits any of the four falsehoods in the exercise of their functions, Article 390 imposes a prison sentence of three to six years together with a fine and a long period of disqualification.
Where a private individual commits one of the first three falsehoods in a public, official or commercial document, Article 392 applies, with a sentence of six months to three years plus a fine.
The omission is significant. A private individual cannot commit the fourth form, untruthful content, in a public document under Article 392. Lying in a statement recorded by an official is not, by itself, this offence. That gap is a recurring and effective defence argument.
Commercial documents cover a broad range in practice, including invoices, cheques, promissory notes and contracts used in trade.
Private documents
Article 395 deals with falsehood in a private document and carries six months to two years. It adds a requirement the other provisions do not have. The falsehood must be committed to the prejudice of another.
Article 396 covers knowingly using a false private document produced by someone else.
How it interacts with fraud charges
Document forgery is commonly charged together with fraud, because the false document is the instrument used to deceive.
Where the falsehood served as the necessary means to commit the fraud, the courts treat the two as a medial concurrence, which affects how the total sentence is calculated. How that relationship is characterised can significantly change the final outcome, and it is often argued at length.
Defence arguments
- The document is not what the prosecution says it is. Reclassifying a document from commercial to private moves the case to a substantially lower penalty range.
- Untruthful content by a private individual. Where the allegation is false content in a public document and the accused is not a public official, the conduct may fall outside Article 392 entirely.
- The alteration was not essential. Only changes affecting an essential element of the document are covered.
- No prejudice. In private document cases, the absence of harm to another defeats the charge.
- No intent. Administrative error, or a document completed on someone else's instructions without knowledge of its falsity, undermines the mental element.
Key points
- A document is anything carrying legally relevant evidentiary effect, including digital records.
- Public officials face three to six years. Private individuals face six months to three years for public, official or commercial documents.
- Private individuals cannot be convicted under Article 392 for untruthful content in a public document.
- Private document falsehood requires prejudice to another, which the other provisions do not.
- The classification of the document is usually the single most important issue in the case.
If you are facing an allegation of document forgery, particularly alongside fraud or tax charges, the classification of the documents involved will shape your exposure. Contact our criminal defence team for an assessment. You may also want to read our guide on tax fraud in Spain.
