Document forgery rarely comes alone. It appears alongside a fraud, a tax offence or a corporate dispute, as the piece that lends an appearance of truth to a transaction. For the entrepreneur or executive under investigation, the forgery charge can weigh as heavily as the main offence, because it multiplies the penalties and worsens the look of the case. But it is also a field where the case law has drawn precise limits, and where a technical defence finds solid arguments of non-typicality. We defend those facing a forgery charge, alone or in conjunction with other economic offences.
What the Criminal Code punishes and the forms of forgery
Articles 390 and following draw distinctions by document and author. Forgery of a public, official or commercial document by a private individual (Article 392) carries six months to three years; in a private document (Article 395) an intent to harm is also required; that committed by an authority or official (Article 390) carries higher penalties. The typical conducts are altering essential elements, simulating the document, or supposing the intervention of someone who did not intervene. One item on the list is worth knowing well: departing from the truth in the narration of facts, so-called ideological falsity.
The private individual’s ideological falsity: the line of non-typicality
Where a private individual merely departs from the truth in the content of a document — without simulating it or altering its authenticity — that conduct is not typical, because the individual is not subject to a general duty of truthfulness. The Supreme Court has clarified that partial untruth, such as stating a price different from the real one in an invoice or omitting items, falls outside the offence. Different is the document created entirely to evidence a non-existent relationship, which can be typical forgery. That line, narrow and technical, is one of the main defence arguments.
The restrictive interpretation of the commercial document
Not every document connected to commerce is a commercial document for criminal purposes. The Supreme Court, in plenary judgment 232/2022, requires the document to be capable of harming the security of legal traffic in a collective sense, not merely an effect between the parties. Internal documents, or those with effect limited to an inter partes relationship, may fall outside the aggravated offence of Article 392, which substantially lowers the penalty or excludes the offence.
The international dimension
Documents executed abroad require a double analysis: their legal nature under the law of origin and their fit within the Spanish criminal categories. A document that in Germany has a particular status does not transfer straightforwardly to the equivalent category in Spain, and that classification decides the offence and the penalty. Command of both systems prevents an aggravated category being applied where it does not belong.
The conjunction with fraud, and limitation
Document forgery is rarely tried in isolation. The usual pattern is the medial conjunction with fraud (Article 248) or with a tax offence: the false document is the means to defraud. That conjunction is penalised under Article 77, and its correct construction decides much of the sentence, because it can substantially aggravate the result or, well argued, allow one conduct to absorb another. Limitation is governed by Article 131 according to the penalty of the applicable offence: five years for a private individual’s forgery of a commercial document. Arguing the classification from the outset — which document, which form, which conjunction — is what separates a sentence of several years from a far more limited criminal response or, indeed, from non-typicality.
Frequently asked questions
If I lied in a document but did not physically forge it, is that a crime?
It depends on who does it and which document is involved. Departing from the truth in the narration of facts — so-called ideological falsity under Article 390.1.4 of the Spanish Criminal Code — is not an offence when a private individual commits it in a public, official or commercial document, because the individual is not subject to a general duty of truthfulness. Material falsity is: altering essential elements, simulating the document or supposing the intervention of someone who did not intervene. This distinction is decisive and often missed: an invoice or contract with an inaccurate figure may be non-typical for a private individual, while a document simulated from start to finish does fall within the offence.
What counts as a commercial document for criminal purposes?
Here the case law has become more demanding, and it is worth knowing because it can exclude the offence. The Supreme Court, in plenary judgment 232/2022 of 14 March, adopted a restrictive interpretation: not every document reflecting a commercial transaction is a commercial document for criminal purposes. To apply the aggravated penalty of Article 392, the document must be capable of harming the security of legal traffic in a collective sense, not merely an effect between the parties. Purely internal documents, or those with effect limited to an inter partes relationship, may fall outside the aggravated offence.
What is the penalty for document forgery?
It depends on the document and the author. A private individual who forges a public, official or commercial document (Article 392) faces six months to three years in prison and a fine. In a private document (Article 395), six months to two years, and an intent to harm another is also required. An authority or official who forges in the exercise of their functions (Article 390) faces higher penalties, three to six years. Forgery usually appears in conjunction with another offence — fraud, tax crime — and the combined classification is where much of the final sentence is decided.
Are a simulated invoice or contract always forgery?
Not always, and recent case law has qualified this in the defendant’s favour. The Supreme Court has distinguished the document created entirely to evidence a non-existent relationship — which can be typical forgery — from partial untruth, such as stating a price different from the real one or omitting items, which for a private individual remains within non-typical ideological falsity (judgments 298/2024 and 1033/2024). The line between the wholly fictitious document and mere inaccuracy is narrow and technical, and whether an offence exists depends on it.
I am accused in Spain of forging a document drawn up in another country. How is that handled?
A document executed abroad raises two questions: its legal nature under the law of the country of origin and its criminal treatment in Spain. A document that in Germany has a particular status — public, private or commercial — does not automatically transfer to the equivalent Spanish category, and that classification shapes the applicable offence and penalty. As a lawyer with dual training in Spain and Germany, I analyse the nature of the document in its system of origin before arguing its fit within Articles 390 and following, a step a purely local approach tends to overlook.
Recent trends in the courts
The case-law line most favourable to the investigated in recent years is the one restricting the reach of forgery when committed by a private individual. In judgments 298/2024 of 8 April and 1033/2024 of 14 November, the Supreme Court confirmed that invoices and certifications with partial untruths, drawn up by private individuals, constitute ideological falsity under Article 390.1.4 and, as such, are non-typical. The Court clarified that to apply Article 390.1.2 a document recording something wholly untrue or entirely fictitious is needed, so that partial inaccuracies — a price different from the real one, the omission of an item — do not exceed that scope. Together with the restrictive interpretation of the commercial document in plenary judgment 232/2022, this doctrine offers the defence solid arguments of non-typicality worth exploring in each case before accepting the prosecution’s classification.
Let’s discuss your case, in confidence
If you face a document-forgery charge, alone or alongside a fraud or tax offence, the classification of the document and of the conduct can change your situation entirely. We review your case with the confidentiality these matters demand and explain which defence arguments apply. You can reach us by WhatsApp, phone or email for a first, confidential assessment.
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