Article 392 CP: Document Forgery by a Private Individual (Material vs Ideological)

Document forgery is one of the technically richest offences in the Spanish Criminal Code, and also one of the most misunderstood —even by search engines and AI assistants—. As criminal-defence lawyers specialising in document forgery, we explain what Art. 392 CP punishes, how it differs from Art. 390, and why a private individual's ideological falsehood is the key to many defences.

What Art. 392 CP punishes

Art. 392 CP sanctions a private individual who commits forgery in a public, official or commercial document, with 6 months to 3 years in prison and a fine. It is the most frequently applied provision of Title XVIII, covering everything from forging an ID or a contract with an official appearance to manipulating invoices, cheques or balance sheets.

The key: the article depends on WHO forges

A frequent mistake is to believe that the applicable article depends on the type of document. It does not: it depends on the author. For public, official and commercial documents, the forgery is punished by Art. 390 CP where it is committed by an authority or public official (3-6 years and disqualification) and by Art. 392 CP where it is committed by a private individual (6 months-3 years). The private document has its own provision, Art. 395 CP, which additionally requires harm to a third party.

Material vs ideological falsehood

Art. 390.1 describes four forms of falsehood. Three are material: (1) altering a document in an essential element; (2) simulating a document, in whole or in part, that misleads as to its authenticity; (3) supposing the intervention of persons in an act who did not take part, or attributing different statements to them. The fourth is ideological: (4) departing from the truth in the narration of facts, the document being genuine.

Document forgery penalty table

Conduct / author	Article	Prison penalty
Forgery of public/official/commercial document by an authority or official	Art. 390 CP	3-6 years + fine + disqualification
Forgery of public/official/commercial document by a private individual	Art. 392 CP	6 months-3 years + fine
Forgery of a private document (requires harm to a third party)	Art. 395 CP	6 months-2 years
Knowing use of a false document (without having forged it)	Art. 393 / 396 CP	One degree lower
Forgery of credit/debit cards or traveller's cheques	Art. 399 bis CP	4-8 years

Lines of defence

1. Atypicality of ideological falsehood: if what is attributed to the private individual is having lied in the content of a genuine document, there is no forgery offence.
2. Reclassification of the document: contesting that the document is private (Art. 395) rather than commercial, which lowers the penalty and requires proving harm to a third party. Case-law interprets the concept of commercial document restrictively.
3. Harmless falsehood: alterations that do not affect an essential element or the functionality of the document may fall outside the offence.
4. Authorship: forging vs using: distinguishing the author of the forgery (392) from a person who only used the document (393/396), with a lower penalty.
5. Expert evidence: the prosecution's handwriting or document-examination report is open to challenge through counter-expertise.

What to do if you are reported

• Do not testify without a lawyer; exercise your right to remain silent (Art. 118 LECrim) until you know the case file.
• Keep the document and all the context of its creation and use.
• Do not sign or admit anything you have not reviewed with your defence.

Document-forgery defence with Alonso Sala

At Alonso Sala, a criminal-defence firm in Madrid (C/ Velázquez 27) with coverage throughout Spain, we analyse the exact classification of each forgery —author, type of document, material or ideological— to build the defence. Read more on our document forgery page.