Document Forgery: Art. 390-399 CP ▷ Types and Penalties 2026

The offence of document forgery protects public faith and trust in legal transactions. The penalties vary enormously depending on whether the document is public (an ID document, a notarial deed, a judgment) or private (a contract between individuals, an invoice). Our criminal lawyers experienced in document forgery in Madrid can help you with this type of situation.

Types of Document Forgery

• Forgery of a public or official document (Arts. 390 and 392 CP): forging an ID document, passport or driving licence. Penalties of 6 months to 3 years in prison for private individuals.
• Forgery of a commercial document (Art. 392 CP): altering cheques, promissory notes or invoices. It is as serious as the forgery of a public document.
• Forgery of a private document (Art. 395 CP): forging a tenancy agreement or a private letter. It is only an offence if done "to the detriment of a third party".

Material and Intellectual Forgery

Forgeries are traditionally grouped into two families. Material forgery affects the physical support of the document: altering figures on an invoice, imitating a signature, manipulating a date. Intellectual forgery leaves the document physically intact but makes it lie: it records statements that were never made or facts that never happened. The distinction matters because the available evidence and the defence strategy are different in each case: against an alleged material forgery the central evidence is technical, while an alleged intellectual forgery turns on what was actually true.

The Element of Intent

Document forgery is an intentional offence: the author must know that the document is being altered or fabricated and must intend to introduce it into legal transactions as if it were genuine. Clerical errors, corrections made without concealment, or documents drafted with mistaken but honestly believed content lack that intent. A significant part of the defence work consists precisely in re-framing what the prosecution presents as a forgery into what it often is: an error, a sloppy practice or a discrepancy with an innocent explanation.

The Importance of the Handwriting Expert Report

In many forgery cases (forged signatures, altered documents), the key piece of evidence is the report of the handwriting expert or document examiner. We work with forensic experts to show that the signature does not belong to our client, or that the document is genuine and contains only correctable errors, not deliberate forgeries.

How the Expert Examination Works

The handwriting expert compares the questioned signature or text with undisputed samples of the person's writing, examining pressure, stroke, speed and proportions. Document examiners can also analyse inks, paper and printing systems to detect later additions or substituted pages. The defence may appoint its own expert, and conflicting expert evidence is frequent: when reports disagree, the examination of both experts at trial often decides the issue.

Defence Strategy in Forgery Cases

• Authenticity: the handwriting or documentary expert report showing that the signature or document is genuine, or that it cannot be attributed to the accused.
• Authorship: even if the document is false, the prosecution must prove who falsified it. Possessing or benefiting from a document is not the same as having forged it.
• Lack of intent: showing that the inaccuracy is an error and not a deliberate fabrication.
• No harm to third parties: in private documents (Art. 395 CP), if no detriment to a third party was caused or intended, the conduct is not criminal.
• Irrelevance of the alteration: changes that do not affect the essential functions of the document — its capacity to prove facts or to produce legal effects — are generally not treated as criminal forgery.