Forgery of an ID Card, Passport or Licence: Art. 392 CP

Carrying or using a false identity document —an ID card, a passport or a driving licence— is not a minor breach: it is an offence of forgery of an official document. The core provision is article 392 of the Spanish Criminal Code (CP), which punishes the private individual who forges such documents, anyone who traffics in them and anyone who uses them knowingly. As criminal lawyers specialising in document forgery, we explain the punishable conduct, its penalties and the lines of defence.

What Art. 392 CP Punishes

Art. 392 CP transfers to the private individual the forms of forgery that art. 390 CP defines for an authority or public official, but only the first three (altering, simulating, or supposing the involvement of persons): the private individual is not liable for mere ideological falsehood, that is, for departing from the truth in the narration of the facts.

The provision also distinguishes several forms of conduct with different penalties:

• Forging a public, official or commercial document (art. 392.1): imprisonment of six months to three years and a fine of six to twelve months.
• Trafficking in any way in a false identity document, without having taken part in the forgery (art. 392.2): the same penalties as the forgery.
• Using, knowingly, a false identity document (art. 392.2): imprisonment of six months to one year and a fine of three to six months.

The protected legal interest is public faith and trust in legal dealings: an identity document serves to establish who a person is, and forging it endangers the security of countless relationships (administrative, contractual, border control).

ID Card, Passport and Licence: Official Documents

The ID card, the passport and the driving licence are official documents: they are issued by a public authority in the exercise of its functions and carry security features. That is why forging them fits squarely within art. 392 and not within forgery of a private document (art. 395 CP), which is less serious and requires an intent to cause harm.

The forgery may be material (altering a genuine document —changing the photograph, modifying the date of birth or the name—) or consist in simulating in full a non-existent document so that it appears genuine. Both forms, where they relate to the first three numbers of art. 390.1, make up the offence under art. 392.1.

Using and Trafficking in the False Document

The Code separates manufacture from use and trafficking, precisely because most proceedings are not brought against the person who physically produced the document —often untraceable— but against the person carrying or using it.

• Trafficking (art. 392.2): trading in, distributing or handing over false identity documents, even without having forged them. The penalty is equated to that of the forgery.
• Knowing use (art. 392.2): displaying or presenting the false identity document while aware of its falsity. This is the most frequent form and the one with the lightest penalty.

In every case, knowledge of the falsity is essential: the offence requires acting "knowingly". A person who receives or displays in good faith a document they do not know to be false does not commit the offence by mere possession.

Certificates and Other Documents (Art. 399 CP)

Where what is forged is not an identity document as such, but a certificate (of residence, medical or academic), the criminal response is different and far more lenient. Art. 399 CP punishes the private individual who forges a certificate with a fine of three to six months, a penalty that also reaches anyone who knowingly uses it and anyone who traffics in it in any way. Here too it applies to foreign certificates used in Spain.

The boundary between "official document" (art. 392) and "certificate" (art. 399) is not always clear-cut and is a technical battleground that can radically change the penalty.

Usurpation of Civil Status (Art. 401 CP)

Art. 401 CP punishes anyone who usurps the civil status of another with imprisonment of six months to three years. Giving a false name on a one-off basis is not enough: the settled case law of the Supreme Court requires effectively and durably arrogating the personality and rights of a third party, acting in legal dealings as if one were that person. This figure tends to appear alongside document forgery where, in addition to the false or borrowed document, the perpetrator assumes the victim's full identity.

Link with Irregular Immigration and Fraud

The forgery of identity documents is rarely prosecuted in isolation. It usually appears used as a means to another end, which opens up concurrences of offences worth anticipating:

• Irregular immigration: the false document may be the means to enter or remain in Spanish territory or to obtain benefits or permits. It is important to keep the forgery of art. 392 distinct from offences against the rights of foreign nationals and from mere administrative immigration breaches.
• Fraud (art. 248 CP): where the false document is the deception that brings about a transfer of assets (opening accounts, contracting, defrauding an institution), the forgery and the fraud concur, and their relationship —concurrence of offences or means-end concurrence— bears directly on the penalty.

Correctly identifying the purpose of the document and the applicable concurrence is decisive in avoiding disproportionate penalties.

Lines of Defence

1. No knowledge of the falsity: the offence requires acting "knowingly"; if the accused reasonably did not know the document was false, there is no intent and the conduct is not an offence.
2. Authorship: carrying or using a document is not, without more, the same as having forged it. A rigorous distinction must be drawn between manufacturer, trafficker and mere user, each with its own penalty.
3. Capacity to mislead: a crude or clumsy forgery, incapable of deceiving an average recipient or detectable at a glance, may exclude the offence or downgrade its classification.
4. Nature of the document: arguing whether it is an official document (art. 392), a certificate (art. 399) or a private document (art. 395) changes the penalty entirely.
5. Expert evidence: challenging the prosecution's documentary (forensic-document) examination and the chain of custody of the seized document.
6. Mitigating factors: confession, reparation or cooperation, and the possible suspension of sentences not exceeding two years for a person with no prior record.

In matters of forgery, the settled case law of the Supreme Court stresses the document's capacity to mislead and the need to prove intent, which leaves a technical margin for defence that should be worked on from the very first statement.