False Certificates (Arts. 397-399 CP): Penalties by Who Issues Them

Falsification of certificates is a specific, more lenient form of document forgery. It is regulated by Articles 397 to 399 of the Criminal Code, which graduate the penalty according to who issues or uses the certificate. As specialist criminal defence lawyers in document forgery, we explain each scenario and its penalties.

What Is a Certificate for Criminal Law Purposes?

For the purposes of Arts. 397 to 399, a certificate is a document that attests to a fact with limited legal significance: a medical certificate, an attendance certificate, a minor academic certificate. The legislator treats these with more lenient penalties than ordinary document forgery precisely because of that lesser significance. In practice, the key question is twofold: identifying who issues it (a doctor, an official or a private individual) and assessing whether the document really amounts to a simple certificate or whether, given its significance, it should instead be treated as forgery of an official document under Art. 390 CP.

The Doctor (Art. 397 CP)

Art. 397 CP punishes the doctor who issues a false certificate with a fine of three to twelve months. This is the typical case of a doctor who issues a sick-leave, fitness or attendance certificate that does not match reality. The penalty, a fine, is notably lower than that for forgery of an official document, reflecting the legislator's intention to reserve the more serious response for other documents. That said, when the false certificate is the means of obtaining an unlawful financial benefit, an offence of fraud may also apply in combination.

The Authority or Official (Art. 398 CP)

Art. 398 CP is addressed to the authority or public official who issues a false certificate of minor significance in legal dealings, with a penalty of suspension of six months to two years. The provision itself expressly excludes certificates relating to Social Security and the Tax Authority. This offence applies restrictively: if the official's certificate has real legal significance, the case falls not under Art. 398 but under forgery of an official document under Art. 390 CP, punished with imprisonment of three to six years. Distinguishing between the two is often the core of the defence.

The Private Individual and Use (Art. 399 CP)

Art. 399 CP closes the regime with two forms of conduct by a private individual. Paragraph 1 punishes the private individual who forges one of the above certificates with a fine of three to six months. Paragraph 2 imposes the same penalty on anyone who knowingly uses the false certificate or trades in it in any way, even when the certificate comes from another State or was forged abroad, if it is used in Spain. In this way, both whoever produces the certificate and the beneficiary who presents it face criminal liability.

Concurrent Offences: Fraud and Professional Intrusion

A false certificate is rarely an end in itself. When it is used to induce a mistake and obtain a transfer of assets — an undue benefit, the collection of an allowance — an offence of fraud under Arts. 248 et seq. CP may apply in combination. And if a false academic qualification or certificate is used to practise a regulated profession, the offence of professional intrusion under Art. 403 CP applies, punished with imprisonment of six months to two years. In practice, it is these concurrent offences that significantly raise the criminal response beyond the lenient penalty for the certificate itself.

Defence Strategies

1. Nature of the document: arguing whether the document is a simple certificate (Arts. 397-399) or an official document (Art. 390), which carry very different penalties.
2. Substantive truth: showing that the certified facts were true, even if the form was irregular.
3. Absence of intent: the offence requires knowledge of the falsity; a mistake or good faith excludes the crime.
4. Limitation period: the period for the medical practitioner (Art. 397) and the private individual (Art. 399) is one year; this should be checked before anything else for older certificates.