Article 390 Spanish Criminal Code: Document Forgery (2026)

Article 390 of the Spanish Criminal Code is the central provision on document forgery. It defines the forms of forgery and sets the penalty for the public official who commits it. As criminal defence lawyers, we explain its regime.

The Four Forms of Article 390.1

1. Altering a document in one of its essential elements or requirements.
2. Simulating a document so as to mislead as to its authenticity.
3. Falsely attributing in an act the involvement of persons who did not take part.
4. Departing from the truth in the narration of facts (ideological forgery).

Where committed by an authority or official in the exercise of their functions: prison of 3 to 6 years, a fine and special disqualification.

Forgery by a Private Individual (Art. 392)

Article 392 punishes the private individual who commits, in a public, official or commercial document, one of the forgeries in the first three numbers of Article 390.1. Penalty: prison of 6 months to 3 years and a fine of 6 to 12 months.

The Key: Ideological Forgery by a Private Individual

A private individual is not criminally liable for ideological forgery (departing from the truth, number 4): only for the first three forms. Lying in a document one drafts oneself — without simulating or materially altering it — usually falls outside the offence when the author is a private individual.

Negligent Forgery by an Official (Art. 391)

Document forgery is usually intentional, but Article 391 CP also punishes forgery committed through gross negligence — and only where the offender is an authority or public official. The official is liable where, through gross negligence, they commit one of the forgeries of Article 390 or allow another to commit them. The penalty, far lower than that of the intentional offence, is a fine of 6 to 12 months and suspension from public employment or office of 6 months to 1 year. A private individual, by contrast, is not liable for negligent document forgery.

Using a False Document (Arts. 393 and 396)

The law punishes not only the forger but also anyone who knowingly uses the false document. Article 393 CP punishes anyone who, knowing it to be false, presents in court or, to harm another, uses a false public, official or commercial document, with the penalty one degree below that set for the forgers. For private documents, Article 396 CP lays down the same rule. Distinguishing authorship of the forgery from mere later use of the document matters, because use carries a mitigated penalty compared with the person who produces the false document.

Defence Strategies

1. Atypicality of ideological forgery where the author is a private individual.
2. Irrelevance of the alteration: it does not affect essential elements.
3. No intent or no intent to harm (in private documents).
4. Nature of the document: disputing whether it is public, official, commercial or private, which changes the penalty.
5. Expert evidence: challenging the prosecution's handwriting or document analysis.