“Of the falsification of currency and stamped effects” is the title of the Chapter I, of the Title XVIII, of the Book II, of the Spanish Penal Code (CP). It is the first chapter in which the CP talks about the misrepresentations, crimes which has in common to try to misrepresent something as something else, and the resulting damage to the legal good protected, in this concrete case, the economic exchange.
The Chapter I is formed by four articles: the article 386, which treats the falsification of currency; the article 387, which defines what we should understand by currency; the article 388, which extends the effects of the recidivism to the convictions coming from foreign courts for the crimes of the same nature than those contemplated in this Chapter I, and; the article 389, which punishes the falsification of stamped effects.
Let us comment in detail, each of these articles.
– Article 386:
As we pointed out before, the article 386 punishes, broadly speaking, the falsification of currency. Let us first read it.
“Article 386.
1. Shall be punished with the punishment of imprisonment from eight to twelve years and fine of the ten times the seeming value of the currency:
1º Whoever alters the currency or manufactures false currency.
2º Whoever exports false currency or altered or imports it to Spain or to any other State member of the European Union.
3º Whoever transports, sells or distributes false or altered currency knowing its falsity.
2. If the false currency is put into circulation the punishment shall be imposed in its superior half.
The possession, receiving or obtaining of false currency for its selling or distribution or put into circulation shall be punished with the inferior punishment in one or two degrees, attending to its value and the degree of connivance with the forger, alterer, introducer or exporter.
3. Whoever having received in good faith false currency sells or distributes it after realizing its falsity shall be punished with the punishment of imprisonment from three to six months or fine from six to twenty-four months. Notwithstanding, if the seeming value of the currency does not exceed the 400 euros, shall be imposed the punishment of fine from one to three months.
4. If the culprit is a member of a company, organization or association, including of transitory character, with the aim of carrying out these activities, the judge or court may impose some of the consequences established in the article 129 of this Code.
5. When, according to the established in the article 31 bis, a legal person is responsible for the previous crimes, shall be punished with the punishment of fine of three times to ten times the seeming value of the currency. Attending to the rules established in the article 66 bis, the judges and courts may impose the punishments established in the letters b) to g) of the point 7 of the article 33.”
Art. 386.1:
We can consider that, in the first point of the article 386 we find the basic crime of the crime of falsification of currency, for it describes the behavior and establishes the punishment which later are going to be adulterated by the second point, establishing two subtypes an aggravated and an attenuated.
The first that we notice is that, it is a common crime, since it can be committed by anyone, irrespective of other qualities, whenever he fulfils the objective and subjective elements of the crime.
Another important aspect we realize as soon as we start reading the precept, is the severity with which the legislator punishes the behaviors included in it, “imprisonment from eight to twelve years and fine of the ten times the seeming value of the currency.” This implies that, they have to be behaviors with enough importance to harm the legal good protected by the norm, the economic exchange, not any susceptible of harming it may be punished, they have to relevant for the intensity with which they attack and affect it.
The first point describes three behaviors: 1) To alter currency or manufacture false currency; 2) To export false or altered currency or to import it to Spain or any other state member of the European Union, and; 3) To transport, sell or distribute false or altered currency knowing its falsity.
1) To alter currency or manufacture false currency:
As always, we are going to make use of the Dictionary of the Spanish Royal Academy of the Language (DRAE), for finding out the scope of the verbs which are the basis of the forbidden action.
According to the dictionary “to alter” means in its first meaning: “To change the essence or shape of something”
And “to manufacture” in its first meaning: “To produce objects in mass production, generally by mechanic means.”
Then, in one case, the shape or form of the currency has to be changed, while in the other the currency has to be produced, existing an essential difference between both, the former is referred to original currency, whereas the latter is referred to false currency. According to the DRAE, “false” when it is used to refer to a thing is: “That it is made to purport to be something else which is original and authentic, normally with criminal intention”.
We should understand that, in this case, this is a crime of mere activity, therefore, the crime is consummated as soon as the active subject carries out the behavior described by the precept.
With regard to the subjective elements of the crime, it is a malicious crime, this implies that the active subject has to have a clear intention of fulfilling the objective elements of the crime, at least, in the cases of direct malice. Sincerely, for me it is very difficult to imagine a scenario in which such malice would be eventual, in other words, when the active subject notices the possibility of harming the legal good protected by the norm with his behavior, and despite this, he acts, since in these cases, the alteration of the currency or its falsification is aimed at obtaining an economic benefit, which is sought by the active subject, leaving no room to doubts about his intentions. Then, do we have to contemplate the possibility of fulfilling the subjective element of the crime by eventual malice? Yes, although in the practice this never is going to happen, or at least, almost never. In any case, we have to admit the possibility of committing this crime by eventual malice.
2) To export false or altered currency or to import it to Spain or any other state member of the European Union:
In the second scenario, the legislator has decided to punish another two behaviors related with false or altered currency, although punished separately from the acts of alteration or falsification of currency, in a way that, those who have not participated in its alteration or falsification my be punished too, by the article 386.1, when they import to Spain or export to any other state member of the European Union altered or false currency.
To import is, to introduce in Spain something, normally a product of consumption, in this case, false or altered currency. And to export is, to bring it out of Spain, Spain because it is the state where the facts take place (art. 23.1 of the Organic Law of the Judicial Branch), although this scenario is limited to an exportation to a state which has to be a member of the European Union, then being excluded from the ambit of application of the article 386, the exportation of false or altered currency to countries which are not members of the European Union.
Like before, this is a crime of mere activity, which is consummated as soon as the active subject carries out the behavior described by the precept.
Now the question is, what happens when the active subject has participated in both, the falsification or alteration of the currency and in its exportation or importation? Should the facts be punished as two different crimes two times (art. 73 CP), for two crimes of the article 386.1 CP? Yes, it seems to be the case, although I cannot help myself thinking that punishing the facts in this way, there may be problems with the principle of non bis in idem. But, on the other hand, they seem different behaviors altogether, one to falsify currency and another to export or import currency, being the more adequate solution a medial concurrence between both, the falsification of the currency is the necessary crime in order to export them.
If we talk about the subjective elements of the crime, we have little to add to the already said in the first scenario. It is a malicious crime, whose behavior fits better with the direct malice than with the eventual malice, since normally the action is carried out by the active subject with all the intention.
3) To transport, sell or distribute false or altered currency knowing its falsity:
Pay attention to the fact that here there is a strange element, for the previous scenarios only describe objective elements of the crime, to which we have added the generic malice of all crime which cannot be committed by imprudence (art. 12 CP). But here we have something strange or new, the behavior described by this third point has to be carried out knowing that the currency is false.
The forbidden behavior consists in transporting, selling or distributing false or altered currency. Let us have a look into our dictionary to discover the meaning of these actions.
According to the DRAE, to transport means: “To carry someone or something from one place to another”.
I have translated the Spanish verb “expender” as “to sell”, but the Spanish version has a more dubious meaning, because it can mean:
1. “To spend, to incur expenses.”
2. “To sell effects of alien property at the behest of their owner.”
3. “To sell in retail trade”
Of these three meanings, I would discard the first, because the putting into circulation of false currency is already independently punished by the second point of the article 368 as an aggravating factor, establishing that in those cases the punishment should be imposed in its superior half. With the other two meanings I have doubts, since both can fit well within the described behavior, I am not able to choose only one, and you?
Something similar happens to me with the verb “to distribute”, since it can mean:
1. “To divide something among various persons, designing what correspond to each, according to will, convenience, rule or right.”
2. “To give something its proper placement or the convenient destination.”
3. “To deliver a merchandise to the sellers and consumers.”
For me, any of these meanings are valid to describe the behavior punished by the precept. Therefore, in the action of distributing can be comprehended either, who uses the currency for buying a good in a regular shop, or who uses the currency for selling it to others who are going to be the ones buying a good in a regular shop.
And all these have to be carried out knowing the falsity of the currency which is being transported, sold or distributed. This requirement adds an additional subjective element to the generic malice of knowing and wanting to fulfil the objective elements of the crime, it has to be proven during the oral trial, the only place in which a proof can be proven in order to sustain a conviction, that the active subject knew that the currency was false, and this, being part of the private sphere of the active subject, can only be proven by proving the concurrence of external objective elements from which can be inferred that the active subject knew that the currency he distributed, sold or transported was false. Pay attention to this excerpt from the Spanish National High Court´s sentence number 2008/2024: “The subjective element of the unlawful consists in the intention of having the false currency with the end of selling or distributing it, that, like the Spanish Supreme Court´s sentence of 28 May 2020 points out, as internal factor of intellectual character, it has to be deduced from all the concurring circumstances, and quoting the Spanish Supreme Court´s resolution 126/2018 of 7 December 2017 points out that “In relation with the referred subjective element of the unlawful we said that the Spanish Supreme Court´s sentence number 523/2012, of 26 June, in a similar scenario (possession of false currency for its distribution) that “the question is referred to the proving of the subjective elements, concretely the knowledge of the falsity of the possessed currency, a fact of consciousness, a subjective element needed of proof, whose existence, save in the cases in which there is a credible confession of the author, cannot be proven by direct proof, being necessary a judgement of inference for affirming its presence on the basis of a inductive judgement built on factual data duly proven”. And this judgement of inference is the explained and obtained by the Court how it has been referred.”
In the present case has been proven that Valle y Almudena knew that the bills of 500 euros which they gave for paying in the shops mentioned above, in connivence with other persons which in some occasions waited for them at the exit of them in a vehicle in which they left, were false. This is drawn from the following circumstances: the plurality of false bills which they gave and which were seized that had the same characteristics; the connivence and division of roles with other persons, the stability of time (from the end of 2017 to the beginning of 2018); the same modus operandi seeking the confusion of the cashiers and causing great disturbances accusing them of racism and paying with a bill of great value a purchase of little value.”
Art. 386.2:
The second point of the article 386 can be divided in two parts, a first paragraph that works as an aggravated subtype of the behaviors described in the first point, and a second paragraph which punishes a new behavior, independent altogether from the behaviors established in this first point.
Starting with the first point, like we saw before, it establishes that the punishment has to be imposed in its superior half when the false currency has been put into circulation. It is true, that it does not specify the behaviors to which this aggravating factor is applicable, hence, we are going to stick to which we say before, it seems to be referred to the behaviors described in the first point. Now the question is, should we exclude any of these behaviors from the ambit of application of this aggravating factor? After thinking it, I would say that the specific aggravating factor of putting into circulation false currency only can be applied to the third scenario of the article 386.1, the one which punishes the distribution of false currency, since in many cases to distribute false currency and to put into circulation false currency will be the same. Then, if someone manufactures false currency and afterwards puts it into circulation, is he committing two crime, one of the article 386.1.1º and another of the article 386.1.3º? Yes, it seems to be the case, though for me this way of classifying the facts is still difficult to swallow, it may affect to the principle non bis in idem. But, on the other hand, they seem two different behaviors altogether, one to falsify currency and another to distribute it, what may imply to put it into circulation, being the more adequate solution a medial concurrence of crimes (art. 77 CP) between them, the falsification of currency is the necessary means to distribute it afterwards.
But there is more, because in many of the cases in which the false currency is put into circulation, this putting into circulation will suppose to commit a crime of swindle. For example, the shop keeper who is paid with a false bill has been swindled. The article 248 CP says: “Whoever, with profit motive, utilizes enough deception for producing error into another, inducing him to carry out an act of disposal in his own prejudice or the prejudice of another, commits a swindle.”
Its shaping elements are: 1º) The preceding or concurring deception. 2º) The sufficiency of the deception. 3) The production of an essential error in the passive subjects. 4º) An act of patrimonial disposal and subsequent prejudice for the person who carries out this act, consequence of the error and in the end of the deception which provoked it. 5º) The profit motive, as subjective element of the crime. 6º) The relation of causality between the provoked deception and the prejudice suffered.
Then, in the majority of the cases in which is punished the distribution of false currency (art. 386.1.3º CP), with the aggravating factor of putting it into circulation (art. 386.2 CP), there is going to be a crime of swindle. But, what kind of relation do these crimes have between them? There is going to be a relationship of medial concurrence of crimes (art. 77 CP), for the swindle (art. 248 CP) is going to be the necessary means to distribute the false currency (art. 386.1.3º CP).
Let us start with the second paragraph of the article 386. Like we also said before, the behavior described and classified by the second paragraph of the second point of the article 386 is independent altogether from the described in the first point of the same article. Besides, this is a singular case, for unlike the crimes described in the first paragraph, which we classified as crimes of mere activity, in the second paragraph we find a crime of cut result, since the crime is consummated before and regardless that which motivated it.
The forbidden behavior consists in possessing, receiving or obtaining of false currency, but only when this is done either for selling or distributing or putting it into circulation. From this we draw two consequences, one, that the possession, receiving or obtaining of false currency is not a crime as such, and two, that it is going to be a crime only when it is fulfilled the additional subjective element to the generic malice, these behaviors are going to be illicit if they are carried out with the intention of selling, distributing or putting into circulation false currency.
Then, as we pointed out, there exists an additional subjective element, which as part of the private sphere of the active subject, save the cases of confession, can only be inferred from objective and external elements which allow to infer that the possession, receiving or obtaining of false currency was with the intention of later selling, distributing or putting into circulation. Like, for example, a great amount of false currency, greater of what would be necessary for just its collection, or what would be even better, emails between who possesses the false currency and the would-be buyer. The more and stronger the evidences, the better, for in some cases they may not be enough for destroying the presumption of innocence which protects every accused.
The question now is, what happens when the intention of the active subject is finally consummated? For, the facts should be punished as a crime of the article 386.1.3º, since the more evident function of this second paragraph is to advance the penal protection to cases which otherwise would be licit, the second paragraph of the article 386 rather than punishing the harmfulness of the behavior to the legal good protected by the norm, punishes its potential to be harmful for this legal good. Furthermore, there will be a concurrence of norms of the article 8 between both scenarios, in which the applicable rule is its third, “The broader or more complex penal precept shall absorb those which punish the infringements comprehended in it.”
We should add that, although the behavior described in this second paragraph of the article 386 is independent altogether from the established in the first point, it takes as the basis of its punishment the established in the first point of the article 386, for it punishes the behavior with the punishment of the first point but decreased in one or two degrees, attending to the value of false currency and the degree of connivence with the forger, alterer, importer or exporter. When it talks about the value of the false currency, it seems to be referring to the value of the original currency which it is purporting to be, in other words, the value it would have in the case of being original currency and not false currency, not to the value that it has due to the material with which it has been made or the artist who has participated in its creation, for example.
On the other hand, when it talks about the degree of connivence between possessor and forger, alterer, importer or exporter, the precept seems to be referring itself to the degree of cooperation that there is between them. The question here is that, when there is a great deal of cooperation between them, there may be a case of coauthorship. I explain myself, if who possesses the false currency for later putting it into circulation has assumed this paper because he has previously planned it with who falsifies it, he should not be punished as an author of the crime of cut result of the second paragraph of the second point of the article 386, and in this way be beneficiary of a decrease in his punishment of one or two degrees, he should be punished as coauthor of a crime of falsification of currency (art. 386.1.1º), for there has been a previous division of roles and a shared control of the criminal action.
Art. 386.3:
In the third point of the article 386, we also find an independent behavior from the punished in the first point of the same article.
It punishes who having received false currency in good faith, sells or distributes it after knowing that it is false. A person receives false currency in good faith, when he does not know that it is false, in other words, who has been swindled with it (art. 248 CP).
Once you have been swindled and being conscious that you have been swindled, you should sell or distribute the false currency, what may also imply its putting into circulation, but it does not mean that the aggravating factor of the second point of the article 386 may be applied in the cases that this happens, for, as we have already said, the application of this aggravating factor is limited to the scenarios established in the first point of the article 386.
When the precept requires that the active subject should know its falsity, it is requiring a subjective element additional to the generic malice, which consists in wanting to sell or distribute false currency. As subjective element of the crime, it belongs to the private sphere of the active subject, and it has to be proven by external objective elements from which could be inferred that the active subject knew that the currency which he was selling or distributing was false.
In any case, we see how the punishment established in the third point of the article 386 is much less severe than the established for the behaviors of the first and second point of the same article.
Art. 386.4:
The fourth point of the article 386, expressly applies the article 129 CP, but, on the other hand, if this express application had been omitted, it would not have impeded its application.
The most interesting of this fourth point is that, it does not contemplate an aggravation of the punishment for those cases in which the crimes contemplated in the article 386 are committed within a criminal organization. It is interesting, because it is a usual practice in other precepts of this CP, and because it avoids the inconveniency of having to use the mechanism established in the second point of the article 570 quarter, for solving the problem which these cases suppose since classifying the membership to a criminal organization as an independent crime and as an aggravating factor would infringe the principle non bis in idem. Hence, in the cases in which there has been a crime of falsification of currency committed within a criminal organization, there always is going to be a real concurrence of crimes between those crimes (art. 73 CP), it means that they have to be punished separately.
Art. 386.5 CP:
This fifth point of the article 368 makes the legal persons responsible for the crimes contemplated in this article, fulfilling, in this way, the article 31 bis, which imposes the obligation of expressly establishing this possibility.
– Article 387:
The article 387 provides a definition of what we should understand by currency for the purposes of the article 386. The article 387 says:
“Article 387.
For the purposes of the previous article, it is understood by currency the metallic and the paper currency of legal tender and that which has not been issued or officially put into circulation yet, but which is aimed at it as legal tender. The national currency is on the same level with the currency from others countries members of the European Union or foreigners.
It is also understood as false currency that which, despite being made with legal materials and in legal premises, is made not fulfilling, knowingly, the issuance conditions established by the competent authority or when it is issued not existing any order of issuance.”
What the article 387 does not tell us, is what we should understand by false currency for the purposes of the article 386. To put it differently, not all falsification of currency is punishable, only those which pose a threat for the legal good protected by the norm, the economic exchange safety. For this, the false currency has to be very similar to the original currency, therefore, the bad forgeries, those of little quality which at first sight reveal its falsity, cannot be punished according to the article 386.
The Spanish Supreme Court´s sentence number 1014/2023 says: “Indeed, the crime of the article 386 CP claims, due to the severity of the penal punishment which it contemplates -from eight to twelve years of imprisonment- that the falsifying action has to have particularly suitable conditions for harming the protected legal good.
The falsifying creation has to have a strong appearance of originality in so far as it has to be aimed at being put into circulation. It is not enough, therefore, the simple imitation. It is necessary that the forged currency has to be enough similar to the original for deceiving a regular person. In other words, it has to be suitable to get access to the economic exchange and its use as a means of payment between persons.
The crime of falsification of currency, indeed, requires that the false currency may be confounded as original, although it cannot be translated as a requirement of “falsifying virtuosity” which would make impossible to distinguish the false currency from the original currency.”
– Article 388:
The article 388 says:
“Article 388.
The conviction of a foreign Court, imposed for a crime of the same nature than the comprehended in this chapter, shall have the same effects than the sentences from the Spanish Judges or Courts for the purposes of recidivism, save when the criminal record has been cancelled or may be cancelled according to the Spanish law.”
We should recall that, the recidivism is a generic aggravating circumstance of the article 22 CP, according to which, there is recidivism, “when, committing a crime, the culprit had been executorily convicted for a crime comprehended in the same title of this Code, always that it is of the same nature.” Then, we have to add to the said by the article 388, that the conviction by the foreign court has to be firm, thus, in the stage of its execution.
The article 22 CP extends the effects of the recidivism to the “Firm sentences from judges and courts imposed in other States members of the European Union”, thereby, the article 388 extends its effects to any firm sentence from a foreign Court, regardless of whether it is a member of the European Union or no, although only for the crimes of the same nature than those comprehended in this Chapter I, and not all of the Title XVIII.
The criminal records can be cancelled according to the established in the article 136 CP.
– Article 389:
In the article 389 we find the version for stamped effects and stamps, of the article 386.
The article 389 says:
“Article 389.
Whoever falsifies or sells, in connivence with the forger, stamps or stamped effects, or introduces them into Spain knowing that they are false, shall be punished with the punishment of imprisonment from six months to three years.
The acquirer of good faith of stamps or stamped effects who, knowing their falsity, distributes or uses them shall be punished with the punishment of imprisonment from three to six months and fine from six to twenty-four months. Nevertheless, if the apparent value of the stamps or stamped effects does not exceed the 400 euros, shall be imposed the punishment of fine from one to three months.”
Like we are able to observe, the article 389 is divided into two paragraphs, each describing a different crime.
In the first paragraph is punished the falsification or selling of stamps or stamped effects in connivence with the forger, or their introduction in Spain knowing that they are false. Let us focus ourselves, in the action of falsification or selling in connivence with the forger. Here, we should stress the possibility that this connivence may be considered a coauthorship, whenever there have been a previous agreement and division of roles, although, this distinction does not have any practical effects, since the punishment for who falsifies and who only sells in connivence with the forger is the same.
Regarding the action of introducing the stamps and stamped effects in Spain, knowing that they are false. We should emphasize the importance of the additional subjective element required by the precept, knowing that they are false. Therefore, it is not enough with the generic malice of introducing the stamps in Spain, besides, it is required that the active subjects should know the falsity of the stamps or stamped effects. Due to the fact that, this is an element belonging to the private sphere of the active subject, this can only be proven by external objective elements, save when the author confesses his authorship, which may prove the concurrence of this subjective element of the crime.
The second paragraph punishes those who acquire in good faith stamps or stamped effects “who, knowing their falsity, distribute or use them”. Again, here the most relevant is the requirement of this subject element alien to the generic malice, the active subject should know the falsity of the stamps or stamped effects before distributing or using them.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com