Credit Card Forgery: Article 399 bis of the Criminal Code

Credit and debit cards are now among the main means of payment, and forging them —cloning magnetic stripes, skimming or copying card data, manufacturing counterfeit plastics— is severely punished under Spanish criminal law. Article 399 bis of the Spanish Criminal Code (CP) punishes forging, holding for distribution or using forged cards and traveller's cheques, with penalties of up to eight years' imprisonment. As criminal lawyers specialising in card forgery, we explain the conduct the provision punishes, the penalties, the aggravating circumstances and the lines of defence.

What Art. 399 bis CP Punishes

The provision protects the security of and confidence in the circulation of non-cash means of payment. It sits among the documentary forgery offences and, given the severity of its penalties, places these instruments on a par with the counterfeiting of currency. It does not punish a single act, but a scale of conduct with different penalties according to each participant's role.

The subject matter is broad: credit or debit cards, traveller's cheques or any other non-cash means of payment. This open clause makes it possible to cover new media and payment methods as they evolve, provided they perform the function of a means of payment.

The Types of Conduct and Their Penalties

Art. 399 bis sets out four forms, from most to least serious:

• Forgery (paragraph 1): altering, copying, reproducing or in any other way forging cards, traveller's cheques or other means of payment. Penalty of imprisonment of four to eight years.
• Holding for distribution or trafficking (paragraph 2): possessing forged means of payment intended for distribution or trafficking. Punished with the same penalty as forgery (four to eight years), because of its proximity to putting them into circulation.
• Use by a third party (paragraph 3): using, without having taken part in the forgery, to the detriment of another and in the knowledge of the forgery, a forged means of payment. Lesser offence: imprisonment of two to five years.
• Possession or obtaining for fraudulent use (paragraph 4): possessing or obtaining, for oneself or a third party, knowing they are forged and for fraudulent use, forged means of payment. Penalty of imprisonment of one to two years.

The Aggravation for a Generality of People and Organisation

Paragraph 1 itself contains an aggravated form: the penalty for forgery (and for holding for trafficking) is imposed in its upper half in two situations:

• Where the forged items affect a generality of people, that is, where the forgery has a mass or serial dimension.
• Where the acts are committed within a criminal organisation dedicated to these activities.

This aggravation is common in cases of carding and large-scale cloning, where several people act with a division of roles. Determining whether or not there is a genuine criminal organisation —a stable structure, an allocation of roles, an intention of permanence— and whether the accused was part of it is often decisive for the penalty.

Liability of the Legal Person

Art. 399 bis expressly provides for the criminal liability of the legal person under art. 31 bis CP where a company is found liable for these offences. The penalty is a fine of two to five years, and the courts may also impose, in accordance with the rules of art. 66 bis, the penalties set out in letters b) to g) of art. 33.7 (suspension of activities, closure of premises, dissolution, disqualification, judicial intervention, among others). In this scenario, demonstrating the existence and effectiveness of an appropriate compliance programme is a central element of the company's defence.

Relationship with Fraud (Arts. 248 and 249 CP)

Forging the card is usually only the first step: it is typically then used to obtain money or goods. This is where fraud comes in. Art. 248 CP defines fraud as the use of sufficient deceit, with intent to gain, to cause error in another and induce them to make a disposition to their detriment. And art. 249.1.b CP specifically covers those who, fraudulently using credit or debit cards, traveller's cheques or another means of payment, or the data contained in them, carry out transactions to the detriment of the holder or a third party, with imprisonment of six months to three years.

Forgery and fraud protect different legal interests —the security of the circulation of means of payment, on the one hand, and property, on the other— so the manufacture or use of the forged instrument and the subsequent defrauding are usually addressed as a concurrence of offences. The exact charge (concurrence of offences or of rules, which paragraph of art. 399 bis and which form of fraud) depends closely on the facts found to be proven and is one of the areas where the defence is most at stake.

Lines of Defence

1. Knowledge of the forgery: both use (paragraph 3) and possession for fraudulent use (paragraph 4) require acting in the knowledge of the forgery. Showing that the client was unaware that the instrument was forged —for example, someone who receives and uses a card believing it to be genuine— excludes intent and, with it, the offence.
2. Perpetration and involvement: forging (four to eight years) is not the same as using without having forged (two to five years) or merely possessing (one to two years). Precisely delimiting the accused's specific role can substantially reduce the applicable sentencing range.
3. No criminal organisation: challenging the upper-half aggravation where there is no genuine organised structure, but rather an isolated act of joint perpetration or a one-off involvement.
4. Purpose of the instrument: the aggravated holding under paragraph 2 requires that the items be intended for distribution or trafficking; absent that purpose, the conduct may be reclassified under the lesser offence of paragraph 4.
5. Expert evidence: technical analysis of the media, the magnetic stripes and the digital traceability is often decisive in establishing what was actually done and by whom. Expert evidence may challenge the attribution of the acts or the very status of the instrument as "forged".
6. Reparation of the harm to trigger the mitigating factor of art. 21.5 CP where applicable.

In this area, the settled case law of the Supreme Court stresses the requirement of intent (knowledge of the forgery) and the distinction between the different forms of conduct in the provision, which leaves a technical margin for defence that should be worked on from the outset of the proceedings.