“Of the falsification of documents”, is the Chapter II, of the Title XVIII, of the Book II of the Spanish Penal Code (CP). It is places, just after the Chapter I, which is dedicated to the falsification of currency and stamped effects, though it includes a sort of hybrid between both, the falsification of bank card, before punished, by assimilation, as falsification of currency.
It is a chapter formed by twelve articles, which are divided into four sections.
In this article, we are going to talk too, of the Chapter III, of the same Title XVIII, dedicated to the common dispositions which are applicable to both the Chapter I and the Chapter II of the Title XVIII, and which has only two articles.
Before beginning with the commentary of these articles, it is convenient to study the general characteristics of the falsification of documents through examples of jurisprudence from the Spanish Courts. It is going to help us later to understand them better.
We are going to start with two excerpts from the Spanish Provincial Court of Barcelona´s sentence number 3955/2024, which is also interesting, although we are not going to see it here, because it does not consider a crime of falsification of document a false driving license which gives an information which is truthful:
– “It is convenient to bring up the legal doctrine regarding the crime of falsification. The Spanish Supreme Court´s sentence number 803/21, of 20 October (Deponent: Andrés Martinez Arrieta), proclaims that “The falsification supposes a mutation of the truth and the falsification of document is produced when are affected some of the essential functions that a document fulfils, in other words, the perpetuating function (material fixing of the manifestations of the thought), proving function (adequacy for producing proofs) and guaranteeing function (to allow the author the knowledge of the manifestations). The doctrine from the Second Chamber of the Supreme Court, from a functionalist perspective, has insisted that it is not enough for the existence of the crime of falsification of currency an objective behavior of mutating a document´s content or altering the conditions of authenticity. This, besides, has to put into risk the goods or interests protected by the crime of falsification of documents, thus its existence has to be denied when there is evidence that such interests have not suffered a meaningful risk of being harm -STS 318/2017 of 1 February; STS 138/2022, of 17 February-.
The essentiality has to be measured, therefore, attending to the capacity of the mutation to surpass the allowed risk altering the sense and the own functions of the document in the legal transactions. Like the Spanish Supreme Court´s sentence number 279/2010, of 22 March, affirms, for the existence of a falsification of a document, it is not enough a behavior objectively contrary to the law, it is necessary too, that the “mutatio veritatis”, in which consists the falsification of a public or official document, alters the essence, the substance, or the authenticity of the document in its essential aspects as a means of proof, thus the real harm, or merely potential, is a necessary element in this kind of crimes, with a change in the efficacy that the document is to have in the legal transactions to which is aimed.”
– “The incrimination of the falsifying behaviors is motivated by the necessity of protecting the faith and the security and the confidence in the legal transactions, avoiding the access to it of false means of proof which may alter the legal reality in a harmful way for the affected parties. From this material point of view, the document tries to fulfil some of these three functions: a.- perpetuating function, reflecting the manifestation of will or knowledge of some person which acts on his behalf or willingly or legally representing a physical or legal person, public or private;
b.- proving function, trying to prove the carrying out of the declaration in the document, not its truthfulness.
c.- guaranteeing function, allowing to identify the author or authors of the declaration in the document.
Analyzing the functions of the document in relation with the principle of harmfulness, we have to conclude that only when the mutation of the document is suitable to alter some of the legal effects ascribed to the document it is possible to affirm the criminality of the deceptive behavior. Thus, the perpetuating function is mainly affected when the document is destroyed or spoiled, the proving function when the alteration of the document affects to that which the document must and is able to prove and the guaranteeing function is affected when the falsification does not allow to identify the author of the declaration of will. In other words, the falsifying behavior needs in order to be considered a crime not only the presence of a deceptive behavior (formal unlawfulness), but the concurrence of a relevant risk too (material unlawfulness). Hence, the Supreme Court has affirmed that the principle of harmfulness advises to distinguish, for criminal purposes, between those falsifications of documents which vary the essence of the document, with change the efficacy of it in the legal transactions, which are suitable for causing a harm in a third party or surprise their good faith and those which are not; or which, in last instance, what is protected punishing the falsifications, rather than the truth, is the function that the documents carry out in the legal life. For such motive, such jurisprudence excludes from the crimes of falsification the cases in which the altered data does not have relevance regarding the efficacy which the document which is presumed false is going to produce in the legal transactions in which it is to affect, being mutations of the truth, which are inane, innocuous or unimportant, which does not harm the legal good protected by the penal norm.
We have to depart, like the Spanish Supreme Court´s sentence number 823/2023, of 10 November, recalls, distinguishing between the material and ideological falsification. The former is that which affects the physical structure of the document, the material means which contains the declaration of will. The ideological falsification is referred to the truthfulness of that declared, to the exactness of the content of the will reflected in the document.”
Let us sum up the above, choosing the most important:
– The falsification supposes a mutation of the truth and the falsification of document is produced when are affected some of the essential functions that a document fulfils, in other words, the perpetuating function (material fixing of the manifestations of the thought), proving function (adequacy for producing proofs) and guaranteeing function (to allow the author the knowledge of the manifestations).
– For the existence of a falsification of a document, it is not enough a behavior objectively contrary to the law, it is necessary too, that the “mutatio veritatis”, in which consists the falsification of a public or official document, alters the essence, the substance, or the authenticity of the document in its essential aspects as a means of proof.
– The incrimination of the falsifying behaviors is motivated by the necessity of protecting the faith and the security and the confidence in the legal transactions, avoiding the access to it of false means of proof which may alter the legal reality in a harmful way for the affected parties.
– For such motive, such jurisprudence excludes from the crimes of falsification the cases in which the altered data does not have relevance regarding the efficacy which the document which is presumed false is going to produce in the legal transactions in which it is to affect, being mutations of the truth, which are inane, innocuous or unimportant, which does not harm the legal good protected by the penal norm.
In spite of having already learned many things, we should see more examples in order to complete our panoramic vision of the crime of falsification of documents.
Another of those examples which we must study, is regarding the elements of which is made up the crime of falsification of documents according to the repeated jurisprudence from the Second Chamber of the Spanish Supreme Court. The Spanish Provincial Court of Cordoba´s sentence number 440/2024: “according to the Spanish Supreme Court´s sentence number 836/2022 of 21 October, “the requisites which the jurisprudential doctrine has required in this crime (falsification):
a) the objective or material element integrated by the mutation of the truth through procedures or ways of committing the crime, contemplated in the article 390.
b) that the “mutatio veritatis” affects essential elements of the document and has enough importance for confounding the third party or surprising him in his good faith, producing the sought effects in the ambit of the legal transactions.
c) the subjective element of falsifying malice, which consists in the concurrence in the active subject of the consciousness and will of mutating the reality.”
Of these three elements, there is one of which we have to talk more, since it is the first time that we see it. I think that this excerpt from the Spanish Provincial Court of Badajoz explains well in which consists the falsifying malice: “The malice in the falsification of documents does not stop in the material or ideological alteration of the content of the document, it requires, for considering the action penally reproachable, the will of altering the “effects” of the document, in other words, the idea or purpose that this seems authentic in the legal transactions; this malice is the deliberate consciousness of the falsification of the document and the purpose that it has the effects of a genuine document -without being one- in the legal transactions (Spanish Supreme Court´s sentences of 6 October 1993 and 12 June 1997 and more recently in the sentence 893/21, of 18 November.”)
Another important aspect which we should comment in relation with the crime of falsification of documents, is the fact that the doctrine has no considered it as a crime of own hand, it means that a person who has not directly participated in the falsification but who has shared the domain of the action with the forger, may be considered an author too. The Spanish Supreme Court´s resolution number 8138/2024 says: “The appellant insists that report refused his material authorship in the falsification of the contentious signatures, but like the STS 213/2019, of 23 April, indicates, regarding the authorship of the crime, repeatedly this Chamber has pointed out (among the more recent the SSTS 287/2015, of 19 May or 797/2015, of 24 November) that the falsification is not a crime of own hand which requires the material execution of the falsifying alteration by the own author, for it admits its execution through intermediary acting at his behest. Thus, the responsibility as author does not requires the physical intervention in the material dynamic of the falsification, it is enough with the previous agreement and distribution of functions for making and taking advantage of the falsified documents, therefore, author is either who materially falsifies or who previously agreeing it with him takes advantage of the action if he has the functional domain upon the action (Second Chamber of the Spanish Supreme Court´s sentence number 126/2016, of 23 February 2016).
Thus, we have pointed out repeatedly (STS 395/2022, of 21 April) that the crime of falsification of documents is not a crime of own hand, to put it differently, in order to be author it is not required that the relevant person has falsified with his own hands the corresponding documents, it is enough with having had the functional domain upon the action and that other person, even unknown, has been the material author, thereby author is either who materially falsifies or who takes advantage of the action if he has the functional domain upon the falsification (SSTS 99/2021, of 18 November; 423/2021, of 19 May; 291/2021, of 7 April; or 416/2017, of 8 June, among many others).”
Now, we are ready to understand and study the articles which form this Chapter II.
Section 1ª Of the falsification of public, official and commercial documents and of the dispatches sent by telecommunication services:
– Article 390:
The first article that we have to study is the article 390, mainly, because it is the first article dedicated to the falsification of documents in the CP. It is also an important article, because two of the articles which appear later (art. 392 and art. 395) refers to it in order to delimit the behavior which they punish. Therefore, we can consider it as a basic article for studying the crime of falsification of documents. The article 390 says:
“Article 390:
1. Shall be punished with the punishment of imprisonment from three to six years, fine from six to twenty-four months and special disqualification from two to six years, the authority or public servant who, exercising his functions, commits falsehood:
1º Altering a document in any of its elements or requisites of essential character.
2º Simulating a document in whole or in part, inducing to error about its authenticity.
3º Supposing in an act the intervention of persons who have not had it, or attributing to those who have intervened in it declarations or manifestations different from those which they have made.
4º Not saying the truth giving an account of the facts.
2. Shall be punished with the same punishments than the pointed out in the previous point the person responsible for any religious affiliation which incurs in any of the behaviors described by the previous numbers, regarding acts and documents which may have effects in the state of the persons or in the civil order.”
We can observe that the article 390 is made up of two points. A first, dedicated to the falsehoods committed by a public servant, which also mentions the four ways in which these falsehoods may be committed. And a second, which punishes the persons responsible for a religious affiliation, when they incur in any of the behaviors described by the first point. Let us start with the first point.
Art. 390.1:
After describing the punishments, the first point of the article 390 states who may be responsible for the behaviors described in the following four points. Only the public servants may be responsible for them, a characteristic which transforms this crime into a special own crime, since it requires a special quality to the active subject of the crime. Nevertheless, we cannot reject the participation of other persons although as instigators or necessary cooperators (art. 28 CP).
We obtain the concept of public servant from the article 24.2 CP: “Public servant is considered all who by immediate disposition of the Law or by election or appointment by competent authority participates in the exercise of public functions.” It is enough for penal purposes the lawful participation in a public function – STS 1051/2013, of 23 September.
Besides, the article 390.1 requires that the public servant should “exercising his functions”. For understanding when we should understand that a public servant acts exercising his functions, we are going to make use of the Spanish Provincial Court of Badajoz´s sentence number 228/2024: “In this sense, the STS 1759/2014, of 21 April, that recalls that “in the sentence of this Chamber 1149/2009, of 26 October, is affirmed that for appreciating the falsehood of public servant established in the article 390.1 of the Penal Code is required its commission by a public servant “exercising his functions”, therefore, the falsified document has to be some of those in which the public servant acts with competence for its condition”, in other words, really exercising his functions, without being enough with availing himself of the mere condition of public servant for considering integrated this element of the crime.” In the same vein, the STS 1642/2020, of 4 June 2020, ratifies this jurisprudence pointing out that “The requirement of exercising the own functions which appears in the article 390.1 CP has capacity for limiting the active subject of the falsification of the document. There has to be functional link between the author of the falsification and the document upon which it falls.”
Then, a public servant may commit a crime of falsification of public or official document, when the falsified document belongs to the ambit of his competence, therefore, affecting to the public functions which he has assigned.
And we have to add another condition which the article 390.1 does not mention, the material object upon which the crime falls must be a public or official document. In this sense, the Spanish Provincial Court of Badajoz´s sentence number 228/2024 states: “In second place, the material object must be a public or official document and as reiterated jurisprudence from the Second Chamber of the Supreme Court states (STS 120/2016, of 22 February), official documents are considered those which come from the Public Administrations (State, Autonomous Regions, Provinces, Municipalities) for satisfying the necessities of the service or public function and the rest of entities or legal public persons for fulfilling their institutional aims. And, besides, it is also pointed out that when the document is made with the only and exclusive end of having effect in the official order and within the Public Administrations, it deserves to be classified as official document (STS 835/2003, of 10 June).”
Therefore, an official document is the one which comes from the Public Administrations, and the one which is made with the only aim of having effect in the official order or within the Public Administrations.
Summing up, the crime of the article 390.1 can only be committed by public servant exercising his functions, with the exception of third parties as instigators or necessary cooperators, and the falsified document must be official or public.
Let us study the four behaviors which punishes the first point of the article 390. The first consists in “Altering a document in any of its elements or requisites of essential character.”
Like we saw in our long introduction, this essentiality is what determines that the falsification of a document may negatively affect the legal good protected by the norm, the faith and the security and confidence in the legal transactions. A good example of this behavior, would be to falsify the signature of a third party, a behavior which is only illicit when it is carried out without the knowledge and consent of the owner of the signature. Pay attention to this excerpt from the Spanish Provincial Court of Barcelona´s sentence number 4655/2024: “Like the Supreme Court in its sentence of 14 September 2001 points out “The fiction of the signature of another in a document -today included in the alteration of one of its essential elements of the number 1 of the article 390.1 CP- constitutes a crime of falsification in so far as it supposes a supplantation of personality and a mendacious attribution, to the person whose signature is imitated, of a bargaining will which he did not have. But if… the signature of another person is imitated with his authorization and this another person is the real contracting party, whose will is not substituted by who stamps the signature, there is no doubt that there is a formal graphic falsehood but not a material falsehood, thereby, the fact should not be considered a crime of this nature.” In the same vein, the sentence of 22 April 2004 points out that “The alleged falsification is not such for it only consisted in imitating the signature of a person with his consent, without affecting to the essential functions of the document. In cases like the present the denominated consented falsehood is not punishable, for lacking the attitude for affecting the legal good protected (sentence of 11 December 2003). The behavior, even when it is formally illicit, is not materially unlawful due to its innocuity, according the Latin expression “non punitur falsitas in scriptura quae no solum non nocuit, sed nec erat apta nocer». Lastly, the sentence of 14 October 2021 establishes that “The signature is authentic or assumed by its owner, and who consciously authorizes another to sign where he had to do it, either with his own signature, with an imitated signature or with one made without following any pattern and, in consequence, recognizes the document like it was his own signature, he is excluding the affectation of any of the functions of the document -proving the legal business which the document reflects; of guarantee, related with the security which the document provides regarding the identity of the person makes the declaration in it; and of perpetuation of the documented declaration for allowing that third parties may know it- since for his own decision he is assuming the effects of the intervention of a third party like he was himself. Such absence of affectation of the functions of the document, without prejudice for a third party, excludes the falsification of document, for in these cases, the penal punishment lacks any justification ( SSTS 1704/2003, de 11-12 ; 651/2007, de 13-7 ; 73/2010, de 10-2 ; 354/2014, de 9-5 ).»”
The second scenario is the simulation of “a document in whole or in part, inducing to error about its authenticity”. We see that, in this number there are two different hypotheses, the whole simulation of a document and the simulation of a document in part. In the former, the document is drafted with the intention of proving in the legal transactions a legal relationship which does not exist, in these cases, the behavior is going to be always unlawful, since it is always able to harm the legal good protected by the norm, due to the fact that, none of the elements which form the contract reflect the reality. In the latter, we should add something that the precept does not say, the simulation of part of the official or public document has to be referred to one of its essential elements, otherwise, the simulation would be harmless, for it would not affect the legal good protected by the norm. The Spanish Provincial Court of Valencia´s sentence number 826/2024 explains it very well: “The falsification of document in which is based the accusation is the one established in the second point of the article 390.1: to simulate a document in whole or in part, inducing to error about its authenticity. Like the SSTS 1647/1998, of 28 January 1999 and 1649/2000, of 28 October, point out, there is simulation of the second point of the article 390.1 when there is more than alterations of the truth regarding some of the elements of the document, which would constitute the decriminalized modality for the private persons who does not say the truth giving an account of the facts, the falsification must affect to the document as a whole in the sense that it has to be drafted with the purpose of proving in the legal transactions a legal relationship which does not exist altogether, like in the cases in which an invoice is drafted simulating that it was a proving document of works which were not rendered, not existing the legal transaction which the simulated document tried to prove. The partial simulation may also be penally relevant if it affects to an essential element and provokes an appearance, in the legal transactions, which does not correspond with the reality.
There is no, on the contrary, crime of falsification of document, in the mere inclusion in a document of an erroneous or uncertain price, when the rest of the elements -the essential- are true; in such cases, the document is not generated for feigning in the legal transactions a non-existent business, a business is not simulated altogether; it is declared, regarding a business which existed, in which two parties intervened, elements which are truth and some uncertain. There is no, with this, an alteration of the essential elements or requisites of the document, nor a simulation in whole or in part of the document, nor supposition of intervention of persons who has not intervened or attribution of declarations different from those made, cases of the 1º, 2º and 3º points of the article 390.1 of the Penal Code-, but a lack of truth in the account given of the facts, point 4º of the article 390.1 of the Penal Code.-“
Let us study the third scenario, “Supposing in an act the intervention of persons who have not had it, or attributing to those who have intervened in it declarations or manifestations different from those which they have made.” This also contemplates two possible behaviors, to suppose in an act the intervention of persons who did not intervene, or to attribute to those who have intervened declarations or manifestations different from those that they have made. Here, we have to add that which is common in all the falsification of documents, and which we have already seen before. To say that determined person has intervened in an act, or to attribute to the person who has intervened a declaration different from the one he has made, has to have important repercussions in the legal transactions, damaging it. Otherwise, the behavior would be harmless.
The last behavior, is “Not saying the truth giving an account of the facts.” This behavior consists in either reflecting in a document facts which are not true or omitting true facts which are relevant for this document. Besides, the falsification has to entail mutations or alterations about the truthfulness of the fact, not mere manifestations of opinion which are not relevant for affecting the legal good protected by the norm. In relation with the above, this excerpt from the Spanish Provincial Court of Pontevedra´s resolution number 1081/2024 is very interesting: “The Spanish Supreme Court Sentence´s number 359/2019 of 15 July says that, the falsehood established in the article 390.1.4 CP, to give a false account regarding the facts, attributable only to authority or public servant, consists in either giving an account of facts which are false or omitting true facts which are not relevant for the purposes of the document. That said, the concept and scope of this lack of respect to the truth which shapes the penal precept has to be delimited. With a broad character, it is understood by official documents those coming from the Public Administrations, for satisfying the necessities of the service or the public function, and the rest of the entities or legal public persons, for fulfilling the institutional aims (STS 4 January 2002). Concretely, the report discussed in this trial, is framed withing those denominated “Administrative Documents of Trial”, whose end is to provide the administrative organs advice, data, assessments and opinions necessaries for taking decisions, and which are generally denominated “reports”.
…
This nuance is important, for like it is deduced from the jurisprudential doctrine (SSTS number 417/2010 of 7 May and 245/2020 of 27 May), the penal precept requires that the action attributed to the author should be something more than mere professional opinions or simple personal assessments, it has to entail true mutations or alterations about the truth of the fact (referred in the case to classifications regarding the urban nature of the building built by who has attributed this function for providing the concerned person with a legal title). And this resolution insisted that “Thus, the ideological falsehood, conceived as not saying the truth in the account given of the facts and which, therefore, supposes “the proving of that which is not truth”, without requiring for its consummation a physical intervention upon the own document, since here the document is not modified, but it is included something that is not truth and there is a notorious, evident and conscious lack of truth, because it is a document drafted ad hoc for purpose sought of giving the urban classification to something which does not have it. It is not, to give an opinion about the legal classification of the ground, but to certify that it was something that it was not. It was not, thus, an opinion, but an evident alteration of the truth for achieving an objective within the legal transactions.”
Lastly, regarding this first point of the article 399.1, we have to talk about the subjective elements of the crime. In each of these behaviors, besides the generic malice, it is required that the author of the facts should act with the so-called falsifying malice, in other words, he should want that the document has effects within the ambit of the legal transactions. For the sake of clarity, we are going to repeat the following excerpt from the Spanish Provincial Court of Badajoz´s sentence number 228/2024: “The malice in the falsification of documents does not stop in the material or ideological alteration of the content of the document, it requires, for considering the action penally reproachable, the will of altering the “effects” of the document, in other words, the idea or purpose that this seems authentic in the legal transactions; this malice is the deliberate consciousness of the falsification of the document and the purpose that it has the effects of a genuine document -without being one- in the legal transactions (Spanish Supreme Court´s sentences of 6 October 1993 and 12 June 1997 and more recently in the sentence 893/21, of 18 November.”)
Art. 390.2:
The second point of the article 390, punishes with the same punishments than the established in the first point of the same article, to the persons responsible for any religious affiliation who incurs in some of the behaviors of this first point, regarding acts or documents which may have effects in the state of the persons or the civil order.
Again, we have to classify this crime as a special own crime, which in this occasion, can only be committed by the persons responsible for any religious affiliation. Like we said before, that the author of the facts should be the person responsible for a religious affiliation does not exclude other participants in the crime, although as instigators or necessary cooperators (art. 28 CP).
Here, the more difficult is to determine who is a person responsible for a religious affiliation. For this purpose, the article 58 bis of the Law of the Civil Register, “…religious ministers are considered the physical persons dedicated, with stable character, to the functions of cult or religious assistance and who accredits the fulfilment of these requisites through certification issued by the church, confession or religious community which has obtained the acknowledgement of notorious roots in Spain, with the conformity of the federation which in such case has requested the acknowledgement.”
The main function carried out by these persons responsible for religious affiliations with civil efficacy is to officiate the religious wedding, although the military testament is another act with civil efficacy which the ministers of cult may carry out, according the article 716 of the Spanish Civil Code.
Therefore, we should understand that, the article 390 is referring to these acts and the documents related with them.
Beyond that, we have no more to add to the already stated regarding the first point, the elements which form this concrete crime of falsification of documents are exactly the same than those which we saw in the introduction, and we have no more to add regarding the malice, which will also require the specific falsifying malice, besides the generic malice.
– Article 391:
Let us first read the article 391:
“Article 391.
The authority or public servant who by grave imprudence incurs in any of the falsehoods established in the previous article or gives rise to its commission by another, shall be punished with the punishment of fine from six to twelve months and suspension of employment or public office from six months to one year.”
Pay attention to the fact that, in the previous point, we have continually talked of the crime of falsification of document committed by authority or public servant as it was only a malicious crime, clearly, it was my fault for nor remember this article 391. Indeed, we have to take into account that there exists the possibility of fulfilling the subjective element of the behaviors described by the article 390 by grave imprudence. It seems that the article 391 was designed thinking only in the first point of the article 390, for it only talks of an authority or public servant as possible authors of the grave imprudence. However, in my opinion, it does not seem the most adequate interpretation, having to be extended the commission by grave imprudence, to the cases in which the person responsible for a religious affiliation alters a document with efficacy in the civil order.
On the other hand, we have to clarify the concept of grave imprudence and concretely the concept of grave imprudence. The imprudence has been shaped by our doctrine, as the infringement of a duty of care, which may be imposed by a norm, or simply by a custom socially accepted. But not any imprudence is punishable according the article 391, like we said before, it has to be grave, therefore, the infringement of the duty of care has to be of an essential norm, important, only the gravest and most notorious mistake can provoke its infringement.
Nevertheless, the line separating the malice from the guilt is not always clear, we are referring to the cases of eventual malice and conscious guilt. In the eventual malice, the author of the facts acts being conscious of the risk he is generating for the legal good protected by the norm, the admits the risks derived from his behavior. On the contrary, in the conscious guilt, the author of the facts, is conscious of the risk, but he rejects the idea that with his behavior the result forbidden by the norm is going to be produced, for example, because he has confidence in his skills or the tools he is using. Yes, the line separating both cases is very, very thin, and it is going to be the job of judges and courts to determine when there is eventual malice or conscious guilt. Although, being a subjective element of the crime, this inference should be achieved through external evidences, which allow the judges and courts to know what was thinking the author of the facts during their commission.
Another important aspect of the article 391 is that, the person who commits the grave imprudence may be also punished by the article 391 when the material author of the facts, of the falsified document, has committed this falsehood as consequence of his grave imprudence, in other words, it punishes the author of the grave imprudence even when he is not the material author of the falsified document, if this is a consequence of his grave imprudence. This, in principle, perfectly suits with the doctrine which does not classify the crime of falsification of document as a crime of own hand, although in this case, it is evident that we are in a different ambit than the treated by that doctrine.
– Article 392:
The article 392 punishes the private person who commits any of the three falsehoods described by the first point of the article 390, what unavoidably entails that, the fourth, “Not saying the truth giving an account of the facts”, can only be committed be public servant or authority. The article 392 says:
“Article 392.
1. The private person who commits in public, official or commercial documents, any of the falsehoods described in the first three numbers of the point one of the article 390, shall be punished with the punishments of imprisonment from six months to three years and fine from six to twelve months.
2. The same punishments shall be imposed to whoever, without having intervened in the falsification, traffics in any way with a false identity card. Shall be imposed the punishment of imprisonment from three to six months to whoever, knowingly, makes use of a false identity card.
This disposition is applicable even when the false identity card appears as belonging to another State of the European Union or to a third State or has been falsified or acquired in another State of the European Union or a third State if it is used or trafficked in Spain.”
Art. 392.1:
Beginning with the active subject, the first point of the article 392 is referred to the “private person”, what includes any person, although leaving aside the public servants or authorities, because they are covered by the article 390. This also indicates that, it is a common crime, since any person may commit this crime, regardless, for example, his profession.
The material object upon which the crime must be committed is a public, official or commercial document. Like we saw before in the article 390, according to reiterated jurisprudence from the Second Chamber of the Spanish Supreme Court (STS 120/2016, of 22 February) “official documents are considered those which come from the Public Administrations (State, Autonomous Regions, Provinces, Municipalities) for satisfying the necessities of the service or public function and the rest of entities or legal public persons for fulfilling their institutional aims. And, besides, it is also pointed out that when the document is made with the only and exclusive end of having effect in the official order and within the Public Administrations, it deserves to be classified as official document (STS 835/2003, of 10 June).”
On the other hand, we should consider commercial document, all document which proves the commercial relationships of a company, like for example, a check, a bill of exchange, or invoice.
Regarding the criminal behaviors, we do not have much more to add to the already said in the article 390, beyond, something which we have already mentioned too, that the article 392 limits the falsifications of documents which a private person may commit to those established in the first three numbers of the point 1 of the article 390. This means that, the private person who does not state the truth giving an account of some facts is not committing any crime.
Regarding the subjective elements of the crime, besides the generic malice, the specific falsifying malice is also required, through which, the private person should want that the falsifying document has effect in the legal transactions. In relation with these subjective elements, we have to take into account too that, unlike the article 390 through the application of the article 391, it is not possible to punish the private person who commits any of the actions described by the three first points of the article 390.1 by grave imprudence, since the article 391 is only applicable to the article 390 and it is not possible to extend its effects to the article 392.
Art. 392.2:
The second point of the article 392 establishes two different scenarios: 1) Without participating in the falsification, to traffic in any way with a false identity card, and; 2) Knowingly, to make use of a false document of identity. Of both scenarios, the second is much less punished.
1) Without participating in the falsification, to traffic in any way with a false identity card:
The legislator has decided to punish the trafficking with a false identity card, whatever the degree of connivence between forger and trafficker. Remember that, when the degree of collaboration between both is high, the trafficker of a false document of identity may be punished as coauthor of a crime of falsification of official document, whenever, both have the control upon the facts.
On the other hand, according to the Dictionary of the Spanish Royal Academy of the Language (DRAE), to traffic means: 1. To trade, with the money or the goods, and; 2. To make illicit business. In this case, the behavior described by the precept is a combination of both.
Regarding the subjective elements of the crime, it is a malicious crime, which cannot be committed by imprudence, since it is not expressly established (art. 12 CP).
2) Knowingly, to make use of a false document of identity:
It punishes, to make use of a false identity card for identifying yourself in the legal transactions. Nevertheless, the subjective elements of the crime have1/*9 two particularities which we should add to the generic malice, one is the falsifying malice, the intention of who uses the false identity card that it should have relevant effects in the legal traffic, and the other, is the previous knowledge of the active subject that the identity card which he is using is false, a fact which should be also proven.
Let us now focus on the material object upon which the crime should be committed. The article 392.2 only mentions the identity cards, which serve to prove the identity and personal data of his owner, as well as his nationality. However, the jurisprudence has understood that, a driving license can be considered an identity card. Pay attention to this excerpt of the Spanish Provincial Court of Barcelona´s sentence number 4979/2024: “Lately, was ratified that doctrine in a way broadly reasoned by the Spanish Supreme Court´s sentence number 573/2020, of 4 November, in which it was summed up as follows: “The driving license is an official document which enables the exercising of driving a motor vehicle with the ensuing incidence of his falsification in the road safety; but it also enables, leaving aside it concrete efficacy in different administrative ambits, the identification of his owner,
b) Consequently, peacefully, the driving license has been constantly considered by the jurisprudence, even before the entry into force of the current Penal Code, besides official document, an identity card.
c) Among its different modalities we find those issued by foreign authorities or those on their delegates, which by international covenant, whether multilateral or unilateral, are recognized by our legal order.
d) Concerning the competence for trying them by the Spanish courts, it is indifferent whether the falsification was carried out in or outside Spain. The jurisprudential position against this, product of the non-jurisdictional Agreement, of 27 March 1998, was definitely abandoned a long time ago.
e) The jurisdictional attribution consequence of the article 23.3.f) is currently justified, mainly, in the state interests derived from the requirements of the article 6 of the Schengen Convention and in any case, derived from the social reality and its multiples international connotations, to a country can be never indifferent the identification of persons with false identity cards, for this affects to the visa, immigration or security policies. From the strict consideration of the road safety too, it directly affects the interests of the Spanish state.
f) The article 23.3.f) points out that the Spanish jurisdiction shall know of the facts committed out of the national territory which are susceptible of being classified, according to the Spanish Law in reference to the falsifications which directly damage the credit or interests of the State, and introduction or issuing of the falsified; therefore, when the document which affects to these interests, is utilized in Spain by who has participated in its falsification, is generally fulfilled the link of attribution whatever may be its place of falsification, for it entails that it has been at least introduced with his functional control.”
This excerpt is also interesting, because it contemplates the attribution of competence to the Spanish courts of the article 23.3.f) of the Organic Law of the Judicial Brach (LOPJ), which states that: “The Spanish jurisdiction shall know of the facts committed by Spaniards or foreigners outside national territory when they are susceptible of being classified, according to the Spanish penal law, as one of the following crimes:
f) Any other falsification which directly harms the credit or interests of the State, and introduction or expedition of the falsified.”
This article has to be put into relation, with the stated by the second paragraph of the article 392.2, “This disposition is applicable even when the false identity card appears as belonging to another State of the European Union or to a third State or has been falsified or acquired in another State of the European Union or a third State if it is used or trafficked in Spain.”
Then, we should understand that the general rule is the contemplated in the article 23.3.f) of the LOPJ, that makes competent the Spanish Courts of the falsifications of documents made by Spaniards or foreigners outside the Spanish territory, when they directly harm the credit or interests of the State, or when the falsified is introduced or issued in Spain.
And the particular rule for the trafficking or use of false identity cards in Spanish territory, is the contemplated in this second paragraph of the article 392.2, which is just the application of the general rule contemplated in the article 23.1 of the LOPJ, “In the penal order corresponds to the Spanish jurisdiction the crimes and misdemeanors committed in Spanish territory or on board Spanish ships or airplanes, without prejudice of the established in the international covenants in which Spain is a party.” Because the punished by this second paragraph of the article 292, is not the trafficking or use of false identity cards belonging to the Spanish State in Spain, but to traffic or use any false identity card whatever the country to which it belongs, this is also the meaning, which we have to give to the article 393.2.
We cannot end with this article without giving a good example of at least one of the behaviors punished by the article 392. This is a good example, indeed, we have already mentioned it at the beginning in the introduction, because it explains very well the doctrine concerning the falsification of documents, and how, using this doctrine the court acquitted an accused of falsification of a public or official document, for understanding that the false document was expressing something which was true, since the accused used a false Venezuelan driving license which she had obtained according to the legal procedure. The Spanish Provincial Court of Barcelona´s sentence number 3955/2024 states: “Therefore, after the evidence tested at trial, we can notice that it incurred in formal unlawfulness, but not material unlawfulness, because there exists the driving license which is reflected in the used by the accused. None of the documents functions was affected. Upon using the document, she did not cause any damage to third parties, nor did she alter the function that the document fulfils in the legal life. The alteration of the document lacked any relevance because it reflected a fact which coincided with the reality: that the accused was the owner of the driving license which reflected the document, coinciding the data and date of issuing and expiry. It did not entail a mutation of the objective truth, nor did it affect the legal good protected by the norm, for it lacks the harmfulness here relevant. Therefore, for understanding that the behavior carried out is susceptible of being classified as a crime of document falsification it is necessary to include in the document a simulated or untrue sequence of affirmations which legal transcendence trying to appear that the holder is the owner of such document. However, in the present case, all the affirmations which appear in the document are true, according to the own Venezuelan authorities. In other words, there is no evidence of a mutation of the truth, which is an objective or material of the falsehood, which is essential for punishing the behavior. According to the above, we must uphold the appeal, agreeing the acquittance of the appellant.”
– Article 393:
Let us first study the article 393:
“Article 393.
Whoever, knowing its falsehood, presents at trial or, for harming another, makes use of a false document of those comprehended in the preceding articles, shall be punished with the punishment inferior in degree of that established for the forgers.”
The first that we see is that, it is a common crime, since it can be committed by anyone.
The criminal behavior may consist in two different actions: 1) Knowingly, to present at trial a false document of those comprehended in the preceding articles, or 2) In order to harm another, to make use of a false document of those comprehended in the preceding articles.
In the first case, this a crime of mere activity which is consummated as soon as a false document of those comprehended in the previous points is presented at trial. Since the precept does not say much more, we should understand, that the false documents comprehended in the previous points are the specified in the four numbers of the first point of the article 390. Here, the question is that, if who falsifies the document, in the case of the fourth behavior of the first point of the article 390 he has to be a public servant or authority, is a different person than the person who presents it at trial, we have two authors of two different crimes, easy. But when who presents the document at trial, is the same person who falsified it, we have the doubt of what is the relationship between both crimes? Is there a concurrence or crimes or of norms? In my opinion there is a concurrence of crimes, concretely a medial concurrence of norms of the article 77, the falsification is the necessary means for later presenting it at trial.
But, what happens when who presents the false document at trial is one of the parties of the criminal procedure? This fact is considered a crime of procedural fraud (art. 250.1.7º CP), now the question is, to find out the relationship between this crime, the crime of the article 393, in relation with the article 390, and with the crime of falsification of public or official document of the article 390. The relationship of the crime of procedural fraud (art. 250), with the crime of presenting a false document at trial (art. 393), is of a concurrence of norms of the article 8, in which the rule that should be applied is the third, “The broader or more complex penal precept shall absorb those which punish the infringements included in it.” And the relationship between the crime of falsification of public or official document (art. 390 CP) and the crime of procedural fraud (art. 250 CP), seems to be a relationship of medial concurrence of crimes, the falsification of document would be the necessary means for committing the procedural fraud. In fact, this is the solution that we have adopted before for solving the relationship between the crime of presenting a false document at trial (art. 293 CP) and the crime of falsification of document (art. 290 CP). But this is not the solution, that the jurisprudence has found for this problem. According to the Second Chamber of the Supreme Court, between these crimes there exists a concurrence of norms of the article 8 CP, which should be solved according to its fourth rule, “In the absence of the previous criterions, the harshest penal precept shall exclude those which punish the facts with softer punishment.” At least this is what I understand by analogy, since the example that we have is concerning the falsification of private document by particular, and not of falsification of public or official document. The Spanish Provincial Court of Albacete´s sentence number 394/2024: “Sixth.- Although we could understand that we are before two crimes, one of falsification of private document and another of procedural fraud, which should be punish as an ideal concurrence of crimes, according the article 77 of the CP, since it is a fact which constitutes two different penal infringements, the truth is that both crime constitute a concurrence of norms which should be punish according to the article 8.4 of the Penal Code, like the jurisprudence has repeatedly established. Thus, the Second Chamber of the Supreme Court has declared that the falsification of private document when concurs with the fraud, whatever its degree of execution, supposes a concurrence of norms which is solved by the principle of alternativity in favor of the behavior with a harsher punishment, according to the established in the number fourth and not the third of the article 8 CP; and this because it is a jurisprudential tendency invariably sustained that, the falsehood in private document, which works as deception to deceive the swindled, is included and covered by the crime, since the deception is the same falsehood and harm of the third party (aiming tendency included in the article 395 CP) also incorporated by the article 248 as a shaping element of the crime, while other thing happens in the cases in which the document is falsified when the patrimonial displacement has already occurred, and is aimed therefore for producing in the third a different harm… (thus: SSTS 1298/2002, of 4 July ; 702/2006, of 3 July ; 640/2007, of 6 July; 352/2012, of 2 July; 161/2013, of 20 February; 196/2014, of 19 March or 11/2015, of 29 January). Of analogous application to the present case, when the false documents are used at trial art. 396 CP in relation with the article 390.1.1º and 4ª and the procedural fraud contemplated in the article 250.1.7º, traying to base their allegations for obtaining a judicial resolution to the prejudice of another. Moreover, like the Spanish Supreme Court´s sentence number 860/2013, of 26 November, points out: “the falsification of private document is only a crime when it is carried out for harming another, thus, if the harm is of patrimonial character and it gives rise to a crime of fraud, the falsehood which would form part of the deception cannot be punished along this, or the same infringement would be punished two times. There is a concurrence of norms -not a medial concurrence of crimes- in which the falsehood of private document is part of the deception…, since we have to take into account that for shaping the crime of falsification of private document as it is in the article 395 CP, it is not only necessary a mendacious alteration of one of the elements of the document, but it is also necessary to harm a third party, a harm which coincides with the harm of the swindle this is the motive of why it is necessary to apply the concurrence of norms, like the art. 8 CP establishes (…); otherwise, there would be a duplicity contemplating the harm, which is required by both the crime of falsification of private document (art. 395 CP) and the crime of fraud (art. 248 CP)”.
More recently, the Spanish Supreme Court´s sentence number 754/2023, of 11 October, in a case in which a document was altered for neutralizing and opposing an execution based on a judicial title, trying to appear at court that a debt was completely settled which, in reality, only had been partly settled, considered right the penal classification of the facts as a crime of falsification of private document of the article 395 of the Code, in a concurrence of norms of the article 8.4 of the same text with an attempted crime of procedural fraud of the article 248 and 250.1.7º in relation with the 16 and 62. And this, taking into account that, “The accused after manipulating the payment receipt, adding in addition to its text the false existence of a pink slip of the debt declared and claimed in civil execution, the presentation of such altered document to the executive procedure, with evident intention of deceiving the judge in order to obtain a resolution rejecting the monetary execution, since it was extrajudicially fulfilled, with evident economic harm to the claimant, with this deception would be denied to him the judicial protection which he claims.” The sentence says that, “It is plain that such behavior sought a harm for the creditor who, in the case of having obtained a resolution in the sense sought by the debtor here accused due to his manipulation of the document, would have been affected in his expectations of receiving the payment, suffering an evident economic harm for privation of his right of credit.” According that concurrence of norms, the facts should be punished as a crime of fraud, which absorbs the crime of falsehood.”
In the second case, the author of the facts has to have the intention of harming another person, making use of a false document of those included in the preceding articles. Pay attention to the fact, that this is the scenario where better fits the concurrence of norms between the crime of procedural fraud and the crime of use of false public or official document at trial, since in both cases is required the intention of harming a third person as an element of the crime.
In any case, this is a crime of tendency or cut result, since it is required as one of the subjective elements of the crime, that the author of the facts has to act with the intention of harming another person. This means that, the crime is going to be consummated when the active subject executes the behavior described by the precept and it is proven that the he acted with this intention of harming another person, but without being necessary that this third person suffers a real harm. Subjective element, which belonging to the private sphere of the active subject, has to be proven through external elements from which may be inferred that intention.
On the other hand, what would be the relationship between the crime of falsification of public or official document (art. 290 CP) and the crime of using false official or public document to the prejudice of another (art. 293 CP)? It should be, a relationship of medial concurrence of crimes (art 77 CP), since the falsification of the document would be the necessary means for committing the other crime. Relationship, which will be different when the concurring crimes are of falsification of document (art. 290 CP) and of procedural fraud (art. 250 CP), for like we saw before, in these cases there is going to be a concurrence of norms (art. 8 CP), solved by its fourth rule.
Regarding the subjective elements of the crime, in the first case, to the generic malice, we should add the knowledge that the document presented is false. In the second case, to the generic malice, we have to add the intention of harming another person and the knowledge that the document is false.
– Article 394:
Let us first read the article 394:
“Article 394.
1. The authority or public servant in charge of the telecommunication services which supposes or falsifies a telegraphic dispatch or another belonging to that services, shall be punish with the punishment of imprisonment from six months to three years and special disqualification from two to six years.
2. Whoever, knowing its falsehood, makes use of the false dispatch for harming another, shall be punished with the punishment inferior in degree to the established for the forgers.”
Art. 394.1:
When we start reading the first point of the article 394, the first thing that we realize is that, it is a special own crime, in other words, which only can be committed by an authority or public servant who is in charge of the telecommunication services.
Therefore, when the same behavior is carried out by a person who is not a public servant or authority, or even, a public servant or authority who is not in charge or the telecommunication services, this behavior is not going to be contrary to the law.
The forbidden action consists in supposing or falsifying “a telegraphic dispatch or another belonging to that services”.
According to the DRAE, the second meaning of the verb “to suppose” is: “To consider as truth or real something which is not or there is no reason to believe that it is.”
And, the first meaning of the verb “to falsify”: “to adulterate or distort something”.
In both cases, this is a crime of mere activity, which is consummated as soon as the forbidden action is carried out.
Besides, the material object of the crime must be a telegraphic dispatch or others belonging to that service. Like, for example, letters, writings, telegrams.
On the other hand, it has to be a malicious crime which cannot be committed by imprudence (art. 12 CP).
Art. 394.2:
Unlike the crime of the first point of the article 394, the one which is established in the second is a common crime, this means that anyone can commit it, regardless, for example, of his profession, or any other characteristic which may distinguish him from the rest of the people.
The forbidden behavior consists in making use of a false dispatch. I understand that, the dispatch to which is referred this second point is the same than the mentioned in the first, it has to be a telegraphic dispatch or another belonging to that services.
Then, if an authority or public servant falsifies a telegraphic dispatch and later makes use of it for harming another person, he has committed two crimes, the classified in the first and second point of the article 394, respectively. In principle, the relationship between both is of a medial concurrence of crimes (art. 77 CP). Nevertheless, when the person who falsifies and makes use of the telegraphic dispatch is a private person, he is going to be able of committing the crime of the second point of the article 394.
Besides, in the case of the second point, this is a crime of tendency or of cut result. Therefore, it is going to be consummated regardless of whether the result sought by the active subject is produced, whenever, the behavior described by the precept is carried out and it is proven that the intention of active subject was to harm a third party.
With regard to the subjective elements of the crime, we have just mentioned one, the active subject has to have the intention of harming a third party. But there are two more, the active subject must know that the dispatch he is using is false, and the generic malice of every malicious crime, to know and want to execute the objective elements of the crime, which applied to the case means, to make use of a false dispatch knowing that it is a crime.
Section 2ª. Of the falsification of private documents:
– Article 395:
The article 395 punishes the private person who commits in a private document any of the falsehoods established in the first three numbers of the point 1 of the article 390. The article 395 states:
“Article 395.
Whoever, for harming another person, commits in private document any of the falsehoods established in the first three points of the point 1 of the article 390, shall be punished with the punishment of imprisonment from six months to two years.”
Like we said before, the crime established in the article 395 is a common crime, therefore, which can be committed by anyone.
The forbidden behavior consists in committing in private document any of the falsehoods established in the first three numbers of the point 1 of the article 390. Conversely, the falsification of document established in the last number of the point 1 of the article 390, “Not saying the truth giving an account of the facts.”, is only a crime when is carried out by a public servant, authority, or person responsible for a religious affiliation.
Pay attention to the fact that, in this case, this is a crime of tendency or cut result, since the precept requires that the falsehoods have to be carried out with the intention of harming another person. Nevertheless, it is not necessary the causation of this harm, being enough with proving that it was the intention of the active subject.
We are not going to talk in detail about the falsehoods of the point 1 of the article 390, because we already talked about them in this article. Who wants to know more about them, has to read it.
Although, we have already mentioned it too, I think that it is convenient to remember the said by the Spanish Provincial Court of Albacete´s sentence number 394/2024, according to which, the falsification of private documents, which always have to be carried out to the prejudice of another, along a crime of fraud, which also requires the causation of a harm to another, have to be punished as a concurrence of norms of the article 8 CP, concretely, according to its fourth rule, “In the absence of the previous criterions, the harshest penal precept shall exclude those which punish the facts with softer punishment.” Summing up, the Spanish Provincial Court of Albacete´s sentence number 394/2024 states that: “Thus, the Second Chamber of the Supreme Court has declared that the falsification of private document when concurs with the fraud, whatever its degree of execution, supposes a concurrence of norms which is solved by the principle of alternativity in favor of the behavior with a harsher punishment, according to the established in the number fourth and not the third of the article 8 CP; and this because it is a jurisprudential tendency invariably sustained that, the falsehood in private document, which works as deception to deceive the swindled, is included and covered by the crime, since the deception is the same falsehood and harm of the third party (aiming tendency included in the article 395 CP) also incorporated by the article 248 as a shaping element of the crime,…”.
With regard to the subjective elements of the crime, leaving aside the generic malice, the crime requires that the behavior has to be carried out for harming another. Subjective element of the crime, which has to be proven along the rest.
– Article 396:
The article 396 is only the version for private documents of the article 393. The article 396 says:
“Article 396.
Whoever, knowing its falsehood, presents at trial or, for harming another, makes use of a false document of those comprehended in the previous article, shall be punished with the punishment inferior in degree of that established for the forgers.”
Let us repeat its more important aspects:
– Common crime.
– It can be committed by two different behaviors: 1) Knowing its falsehood, to present at trial a false private document, or; 2) Knowing its falsehood and for harming another person, to make use of a false private document.
– The first is classified as a crime of mere activity.
– The second, as a crime of tendency or cut result.
– When the private document is presented at trial by one of the parties of the criminal procedure with the aim of provoking an error in the judge, the facts should be punished as a concurrence of norms between the crime of the article 396 and of the article 250, which should be solved by the third rule of the article 8.
– When the crime of procedural fraud (art. 250 CP), concurs alongside a crime of falsification of private document (art. 296 and art. 290 CP), there is going to be a concurrence of norms, solved according the fourth rule of the article 8.
– Malicious crime, with two special qualities as subjective elements, the knowledge of the falsehood and the intention of harming another person.
For more information, read the article 393.
Section 3ª. Of the falsification of certificates:
– Article 397:
With the article 397, we begin the Section 3ª dedicated to the falsification of certificates.
“Article 397.
The medical practitioner who issues a false certificate shall be punished with the punishment of fine from three to twelve months.”
When we begin reading the precept, we realize that this is a special own crime, in other words, which only can be committed by a medical practitioner. Notwithstanding, there may be other participants in the crime, as instigators or necessary cooperators (art. 28 CP). According to the Panhispanic Dictionary of Legal Spanish, a medical practitioner is “any person who carries out a sanitary or sociosanitary activity, veterinaries, psychologists or pharmacist.”
The forbidden action consists in issuing a false certificate. A certificate according to the DRAE is a, “Document which assures the truth of a fact.” And “to issue” means, “to give or dispatch something”.
Then, the article 397 punishes, the medial practitioner or similar who asserts a fact which is false.
It is plain that, it is a crime of mere activity, which is consummated as soon as the forbidden behavior is carried out.
Besides, it is a malicious crime, which cannot be committed by imprudence (art. 12 CP).
– Article 398:
The article 398 says:
“Article 398.
The authority or public servant who issues a false certificate with scarce relevance in the legal transactions shall be punished with the punishment of suspension from six months to two years.
This precept shall not be applicable to the certificates relative to the Social Security and Public Treasury.”
We start reading the article 398, and the first that we realize it that, it is a special own crime, since it can only be committed by authority or public servant. Nevertheless, we cannot reject other ways of participation, like instigators or necessary cooperators (art. 28 CP).
The forbidden behavior consists in issuing a false certificate with scarce relevance in the legal transactions. We remember here, what we said in the article 397, to issue, here means to give or dispatch a certificate, which, on the other hand, is a document which guarantees the truth of a fact.
What may be of little confusing is the fact that, the certificate should be of scarce relevance for the legal transactions. It is confusing, because the precept does not define which certificate are those with scarce relevance for the legal transactions, and because the precept does not mention, how the behavior should be punished otherwise, in other words, when the certificate is relevant for the legal transactions. The first question should be analyzed on a case-by-case basis, but for answering the second we can venture to say that we could understand, that these cases should be punished according to the general scenario established by the article 290, which punishes the falsification of public or official document by public servant or authority.
Another interesting thing that the article 398 says is that, this precept is not applicable to the certificates relative to the Social Security or Public Treasury. Here we have the doubt of whether this means that the behavior in those cases is licit, or has to be punished according to the general provision of the article 290 CP. I choose the first option, if the legislator wanted to punish such behaviors, he would have to do it expressly, respecting the principle of legality and connected with this principle, the principle of minimal intervention of the penal law, which advices to limit the punitive power of the State to the gravest cases, and in this case, the legislator does not seem to have granted them this importance.
Lastly, we have to say that this is a malicious crime which cannot be committed by imprudence (art. 12 CP).
– Article 399:
The article 399 says:
“Article 399.
1. The private person who falsifies a certificate of those designated by the preceding articles shall be punished with the punishment of fine from three to six months.
2. The same punishment shall be imposed to whoever makes use, knowingly, of the certificate, as well as whoever, without having intervened in the falsification, traffics with it in any way.
3. This disposition is applicable even when the certificate appears as belonging to other another State of the European Union or to a third State or has been falsified or acquired in other State of the European Union or in a third State if this is utilized in Spain.”
Art. 399.1:
The first thing that we observe reading the first point of the article 399 is that, it is a common crime, because anyone may be the author of the crime.
The forbidden behavior consists in falsifying “a certification of those designated by the preceding articles”. Therefore, it has to be a certification which has to be issued by a medical practitioner or issued by an authority or public servant with scarce relevance in the legal transactions. Again, then, the question is, what happens when the certification is relevant for the legal traffic? Then I understand, that the behavior should be punished according to the general scenario established in the article 392.
On the other hand, it is a malicious crime, which cannot be committed by imprudence (art. 12 CP).
Art. 399.2:
In the second point of the article 399, we are again dealing with a common crime, which besides, is punished with the same punishments than the established in the first point.
What is different than in the first point is the forbidden behavior. It punishes who makes use, knowingly, of a false certificate, and who, without having intervened in the certification, traffics with it in any way.
Let us focus in the first scenario, which punishes to make use, knowingly, of a false certification. What happens if who makes use of the false certification is the same person who has falsified it? In my opinion, there would be a medial concurrence of crimes (art. 77 CP). In which, the falsification of the certification, would be the necessary means to make use of it later.
The second scenario punishes who without having intervened in the falsification, traffics with it in any way. Then, what happens with who has intervened in the falsification and traffics with it later? By the way in which the legislator has drafted the precept, I would say that there is a concurrence of norms between both crimes, which should be solved by the third rule of the article 8, “The broader or more complex penal precept shall absorb those which contain the infringements included in it.” Understanding that, the trafficking with a certification belongs to the stage of exhaustion of the crime of creating it.
Regarding the subjective elements of the crime, in the first case it is required that who makes use of the certification should know that it is false. This knowledge should be added to the generic malice, of making use of a certification knowing that it supposes a crime. With regard to the second case, it is not required that who traffics with the certification knows its falsehood, I suppose that this is because the fact of trafficking with it, has implicit the knowledge of its falsehood. In any case, in this last scenario, we are dealing with a malicious crime again. Neither behavior can be committed through negligence.
Art. 399.3:
The third point of the article 399, specifies that the article 399 is going to be applicable when the certified “appears as belonging to other another State of the European Union or to a third State or has been falsified or acquired in other State of the European Union or in a third State if this is utilized in Spain.”
Pay attention to the little change that we find in this article in relation with the article 392, where we find a very similar disposition. In this case, the precept only punishes the use of false certificate, regardless its origin or place where it has been falsified, whereas the article 392 does the same, although covering either the use or trafficking of false public, official or commercial document.
For more comments, please read the article 392.
Section 4ª. Of the falsification of debit or credit card, traveler´s checks and other payment methods different from cash.
– Article 399 bis:
In the article 399 bis is punished the falsification, use or possession of debit or credit cards, traveler´s checks and other payment methods different from the cash. The article 399 bis says:
“Article 399 bis.
1. Who alters, copies, reproduces or in any other way falsifies debit or credit cards, traveler´s checks or any other payment method different from cash, shall be punished with the punishment of imprisonment from four to eight years.
The punishment in its superior half shall be imposed when the falsified effects affect to a generality of persons or when the facts are committed within a criminal organization dedicated to these activities.
When according to the established in the article 31 bis a legal person is responsible for the previous crimes, it shall be punished with the punishment of fine from two to five years.
Attending to the rules established in the article 66 bis, the judges and courts may also impose the punishments established in the letters b) to g) of the point 7 of the article 33.
2. The possession or credit or debit cards, traveler´s checks and other payment methods different than cash falsified, destined to the distribution or traffic shall be punished with the punishment established for the falsification.
3. Whoever without having intervened in the falsification uses, to the prejudice of another and knowing their falsehood, falsified credit or debit cards, traveler´s checks or any other methods of payment different than cash, shall be punished with the punishment of imprisonment from two to five years.
4. Whoever, for their fraudulent use and knowing their falsehood, possess or obtain, for him or a third party, credit or debit cards, traveler´s checks or any other payment method different than cash shall be punished with the punishment of imprisonment from one to two years.”
Art. 399.1 bis:
When we start reading the article 399 bis, the first thing that we realized is that it is a common crime, therefore, which can be committed by anyone.
The forbidden action consists in, altering, coping, reproducing or in any other way to falsify a credit or debit card, traveler´s checks or any other payment method different from cash.
A good example of this, is the so-called skimming, which the Spanish Supreme Court´s sentence defines as “the manipulation of data of the magnetic band of the genuine card once it has been copied, altering the name of the owner for engraving them in a card originally issued by the bank which coincides with the name of the person who is going to use the card.”
Like we are able to observe, it is a crime of mere activity, which is consummated as soon as the forbidden behavior is carried out.
Now, we have to determine what happens when the forger subsequently uses the credit or debit card or payment method different from the cash, for paying something, what is the relation between both crimes? Like we have already seen, the falsification of credit cards is punished by the article 399 bis CP, while their use for paying for something is considered a crime of fraud of the art. 259.1.b). In this case, the relationship between both crimes is of a medial concurrence of crimes (art. 77 CP), since the falsification is going to be the necessary means for later commit the fraud. The Spanish Supreme Court´s resolution number 4761/2023 states that: “This idea was already proclaimed by the Spanish Supreme Court´s sentence number 366/2013, of 24 April, when it pointed out that the conscious alteration of credit cards by the appellant, either executed by himself or offering other data for their fraudulent substitution, integrates the crime of falsification of the article 399 bis 1 of the CP, either as author or necessary cooperator. If, besides, this manipulation is conceived for serving as instrument for the deception in establishments open to the public, inducing the shop keeper to an error which determines a patrimonial displacement (art. 248 CP), the relation between the falsifying crime and the fraud is of a medial concurrence of crimes (art. 77.1 CP)”
On the other hand, in relation with the subjective elements of the crime, it is a malicious crime, which cannot be committed by imprudence (art. 12 CP).
The first point of the article 399 bis, is formed by other two paragraphs. The former states that, “The punishment in its superior half shall be imposed when the falsified effects affect to a generality of persons or when the fact are committed within a criminal organization dedicated to these activities.” There are no many problems, when the criterion used for imposing the punishment in its superior half is that the falsified effects affect a generality of persons. On the contrary, we cannot say the same when the criterion for imposing the punishment in its superior half is that the facts have been committed within a criminal organization dedicated to these activities. We cannot say the same, because the membership to a criminal organization is independently punished by the article 570.1 bis of the CP, and it is not possible to punish the same fact, membership in a criminal organization, as an aggravating factor of the article 570.1 bis and as an independent crime of the article 570.1 bis, because otherwise, the principle non bis in idem would be infringed. We find the solution to this problem in the article 570.2 quarter, “In any case, when the behaviors established in such articles are comprehended in another precept of this Code, it is going to be of application the established in the fourth rule of the article 8 CP”. In other words, we have to apply the criterion of alternativity, according to which the harshest penal precept shall exclude the application of those which punish the facts with a softer punishment. This translated to the our present case means that, the judge or court trying the facts should choose between punishing them as a crime of falsification of credit card (art. 399.1 bis) in a concurrence of crimes (art. 73 CP) with a crime of membership in a criminal organization (art. 570.1 bis CP), or as a crime of falsification of credit card, with the specific aggravating factor of being a member of a criminal organization (art. 399.1 bis CP), having to choose the option which applies the harshest punishment to the facts.
Lastly, in relation with this first point, its third paragraph establishes the possibility that the crime of falsification of credit card may be committed by a legal person, in a way that it is fulfilled the established in the article 31 bis CP, which requires that for considering a legal person responsible for a penal crime, this circumstance has to be expressly established in a precept of the CP.
Art. 399.2 bis:
What is punished by this second point of the article 399 bis, is the possession of falsified credit or debit cards, traveler´s checks or any other payment method different than cash, but only when they are aimed at being distributed or trafficked.
It is plain that, we are dealing with a crime of tendency or cut result, since it is required that the possession of the falsified payment methods have to have a subsequent end, not depending the consummation of the crime on its fulfilment. Therefore, the crime will consummate itself with the possession of the falsified payment methods, but only when it is proven that this possession was aimed at trafficking or distributing them. A tendency requisite, which should be proven through the external circumstances which surround the crime, since it is an element which belong to the private sphere of the active subject, and except confession of the culprit, there is no other way of proving it.
Now, the question is, what happens when this end is achieved? Or in other words, what happens when the possession is materialized in the distribution and trafficking of the credit cards? In these cases, the facts should be still punished according to the second point of the article 399 bis, for the CP does not contemplates any specific precept to punish this behavior. Then, the CP advances the barrier of penal protection, to the possession of falsified payment methods different than cash for their subsequent distribution or trafficking. Furthermore, their subsequent distribution or trafficking should help to prove this subjective element of the crime which demands the active subject´s intention of distributing or trafficking them.
Beyond that, this is a malicious crime. We should add to the generic malice, the intention of the active subject of distributing or trafficking with these falsified payment methods different from cash.
Art. 399.3 bis:
The third point of the article 399 bis punishes who without having intervened in the falsification, uses, to the prejudice of another and knowing their falsehood, falsified payment methods different from cash.
In my opinion, it is difficult to distinguish between the behavior described by this third point of the article 399 bis, and the described by the article 249.1.b). In order to refresh our memories, this is what the article 249.1.b) says:
“Those who, using fraudulently credit or debit cards, traveler´s checks or any other material or immaterial payment method different than cash or their data, carry out any class of operations to the prejudice of their owner or a third party.”
Let us try it anyway. In the third point of the article 399 bis, it is required that who carries out the forbidden behavior has not participated in the falsification. Therefore, all those cases in which who has participated in the falsification, subsequently, has made use of it to the prejudice of another, has to be punished according to the crime of fraud of the article 249.1.b). In these cases, there is a relationship of medial concurrence of crimes (art. 77 CP), between the crime of falsification of credit card and the crime of fraud, since the falsification is the necessary means to commit the fraud.
But, what happens when who uses the payment method different than the cash is not the person who has falsified it? Which one is the precept applicable, the article 399 bis or the article 250 CP? In my opinion, taking into account the similarity between both precepts, there is a concurrence of norms, which has to be solved according to the fourth rule of the article 8 CP, therefore, the facts should be punished according to the article 399.3 bis, which is the one with the harsher punishment.
All this helps us to conclude that, only in the cases in which the forger of the payment method different than cash and who makes use of this payment method are the same person, there is no doubt that the precept applicable is the article 250, whereas in the rest of the cases, we have to solve the overlapping between both precepts with a concurrence of norms between them.
Beyond that, this is malicious crime which cannot be committed by imprudence.
Art. 399.4 bis:
In the fourth point of the article 399, we are dealing with a common crime, since it can be committed by anyone, and which punishes the possession or obtention, for him or a third party, of payment methods different than cash, for their fraudulent use and knowing their falsehood.
Then, another aspect which defines this crime is its character of crime of tendency or cut result, for it is not enough with the possession or obtention of payment methods different than cash. It has to be proven that the acquisition or possession has been done with the end of fraudulently using them and knowing their falsehood.
This last two elements, are subjective elements of the crime, which, as such, can only be inferred through external elements. We have to add them to the generic malice too.
The question now is to determine, what happens when this payment methods different than cash and false has been utilized. In these cases, the facts should be punished according to either the article 250 or the article 339.3 bis, because there is a concurrence of norms between those precepts and the article 399.4 bis. Therefore, this fourth point is advancing the penal protection to cases which otherwise would be licit.
Pay attention to the fact that, in this fourth point and in the article 249.2.b) we have exactly the same problem than with the article 250 and the 399.3 bis. The article 249.2.b) states: “b) Those who, for their fraudulent utilization, illicitly steal or acquire credit or debit cards, traveler´s checks or any other material or immaterial payment method different than cash.”
A problem which again should be solve according a concurrence of norms of the article 8 CP.
– Article 399 ter:
The article 399 ter, gives a definition of what we must understand by payment method different than cash. The article 399 ter says:
“Article 399 ter.
For the purposes of this Code, it is understood by payment method different than cash any device, object or protected register, material or immaterial, or a combination of them, excluding legal tender, which, by itself or in combination with a procedure or set of procedures, allows the owner or user to transfer the money or monetary value even through digital means of exchange.”
CHAPTER III
General Dispositions
– Article 400:
The article 400 says:
“Article 400.
The manufacture, receipt, obtention, possession, distribution, put at disposal or marketing of tools, materials, instruments, substances, data or computer programs, devices, elements of security or any other means specifically designed or adapted for the commission of the crimes described in the previous points, shall be punished with the punishment established for the authors in each case.”
Pay attention to the fact that, the commission of these behaviors described by the article 400, is equivalent to the commission of the crimes which these behaviors facilitated. Therefore, in these cases, we are dealing with another case which advances the penal protection to preparatory acts.
The question now which may arise is, what happens when these preparatory acts, independently punished by the article 400, are committed by the same person who later commits the crime they facilitate. We have two possible solutions, either a concurrence of norms (art. 8 CP) or a concurrence of crimes (art. 77 CP). I choose the latter, since the preparatory acts are the necessary means for committing the other crimes.
Again, we seem to be facing a case of overlapping, where two precepts of the CP are punishing the same behavior. We are referring to the evident resemblance between the article 400 and the article 249.2.a), which says:
“2. With the same punishment that the previous article shall be punished:
a) Those who manufacture, import, obtain, possess, transport, market or in another way facilitate to third parties devices, instruments or data o computer programs, or any other means specifically designed or adapted for the commission of the frauds established in this article.”
A resemblance which should be solved according a concurrence of norms between both precepts.
– Article 400 bis:
The article 400 bis, extends the concept of false document, dispatch, certification or identity card, to the use of the corresponding authentic documents, dispatches, certificates or documents by who is not allowed to do it. The article 400 bis says:
“Article 400 bis.
In the cases described by the articles 392, 393, 394, 396 and 399 of this Code shall be understood by use of false document, dispatch, certification or identity card the use of the corresponding authentic documents, dispatches, certifications or identity cards by who is not allowed to do it.”
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com