The offenses of false documentation are regulated in arts. 390 to 399 bis of the Penal Code. We are dealing with crimes that, in most cases, are committed as a means to commit other crimes. For example, creating false checks to cash them at the bank is a conduct that would constitute a crime of fraud, but the creation of such false checks may also constitute a crime of false documentation.

All types of false documentation have one element in common: the object of the falsehood is a document. But what is meant by a document? According to Article 26 of the Criminal Code, a document is any material support that expresses or incorporates data, facts or narratives with evidentiary effectiveness or any type of legal relevance.

Documentary forgery is punishable by different penalties depending on the type of document being forged.

Forgery of public, official and commercial documents

In the first place, the Penal Code punishes the falsification of public, official and commercial documents, through arts. 390 to 394 of the Penal Code. First of all, we will define each of these types of documents:

1. Public documents are those authorized by a notary public in the exercise of his functions and in compliance with the formalities established by law. For example, public documents are public deeds authorized by a Notary Public, certifications of the Land Registry and judicial proceedings.
2. Official documents are considered to be those used or issued by public administrations in the performance of their functions and the effectiveness of their purposes. Official documents are, among others, the ID card, the license plate and the vehicle registration certificate.
3. According to our Courts, commercial documents are understood to be both those that reflect a commercial operation reflecting the creation, alteration or extinction of commercial obligations, as well as those that accredit operations or activities produced within the scope of a company (STS No. 208/2019). We are dealing with a broad concept of commercial document, which includes checks, bills of exchange, invoices, delivery notes…

On the one hand, Article 390 of the Penal Code punishes, with a prison sentence of 3 to 6 years, a fine of 6 to 24 months and special disqualification for a period of 2 to 6 years, the public official or authority who commits any of the following falsehoods in public, official or commercial documents in the exercise of his functions:

1. Altering a document in any of its essential elements.
2. Simulating a document, in whole or in part, in such a way as to mislead as to its authenticity.
3. Assuming in an act the intervention of persons who have not had it, or attributing to the persons who have intervened in said act statements different from those they have actually made.
4. Falsifying the truth in the narration of the facts.

The crime of false documentation is usually an intentional crime, but art. 391 of the Penal Code also punishes its commission by gross negligence, provided that the perpetrator is an authority or public official, in which case the penalty to be imposed is a fine of 6 to 12 months and suspension from employment or public office for a period of 6 months to 1 year.

On the other hand, art. 392 of the Penal Code also punishes the individual who commits forgery in public, official or commercial documents, but only if he does so by altering a document in any of its essential elements, simulating in whole or in part a document by misleading as to its authenticity or assuming the intervention in an act of persons who have not had it. Thus, falsehood committed by a private individual in a public, official or commercial document does not constitute a crime if it consists of misrepresenting the truth in the narration of the facts.

Forgery of private documents

Private documents are those that are not public, official or commercial. The forgery of this type of document is punishable under Article 396 of the Penal Code, which is applicable to the person who, in order to harm another, commits in a private document any of the forgeries indicated in the preceding paragraph (altering a document in any of its essential elements, simulating in whole or in part a document by misleading as to its authenticity or assuming the intervention in an act of persons who have not had it). This behavior is punishable by imprisonment from 6 months to 2 years.