Forgery of Postage Stamps and Stamped Effects (Art. 389 CP)

The forgery of postage stamps and stamped effects is one of the classic forms of forgery, set out in Article 389 CP among the offences against public faith. It protects neither the privacy nor the property of an individual, but the collective trust in the signs the State issues to evidence payment of a tax or of a postal service, and the public funds those effects finance. As criminal defence lawyers in document forgery, we explain what Article 389 CP punishes, how the penalty is graded by the role of the offender and the value of the effects, the forward protection of Article 400 CP and the lines of defence.

What Article 389 CP Punishes

Article 389 CP punishes two conducts of differing gravity, according to the position of the person involved:

• Forging or distributing in collusion with the forger. Anyone who forges, or distributes in collusion with the forger, postage stamps or stamped effects, or imports them into Spain knowing they are false, faces six months to three years in prison. This is the most serious limb: it reaches the person who creates the false effects and the person who, by agreement, puts them into circulation or imports them.
• Buyer in good faith who later distributes or uses them. Anyone who, having acquired them in good faith, distributes or uses them knowing they are false, faces three to six months in prison or a fine of six to twenty-four months. Where the apparent value of the effects does not exceed 400 euros, the penalty is only a fine of one to three months.

The structure of the provision therefore distinguishes the forger and the accomplice in distribution — a harsher reproach — from the person who was initially deceived and, having discovered the falsity, decides to exploit it. In this second case the legislator reduces the penalty and further calibrates it according to the apparent value of what was forged.

The Legal Interest: Public Faith

Postage stamps and stamped effects are official signs issued by the State that evidence payment of a postal service or of a tax. They include, among others, franking stamps, stamped paper, stamp duties and fiscal effects whose amount belongs to the public Treasury. Their forgery harms a twofold interest:

• Public faith, that is, the general trust in the authenticity of the signs the State puts into circulation.
• Public funds, because using false effects evades the payment those signs represent and which should have entered the State's coffers.

That is why the offence sits among the forgery offences rather than the classic property crimes: what matters is not harm to a specific victim, but the impairment of an instrument of collective guarantee. Settled case law of the Supreme Court — in the abstract and without the need to cite particular rulings — stresses that in these forgeries the reproach attaches to the potential harm of the false effect to fiduciary dealings, regardless of whether an actually quantifiable economic loss arises. That nature as an offence against public faith explains why the legislator moves protection forward and punishes both the creation and the putting into circulation of the effects.

The Elements of the Offence

For the conduct of Article 389 CP to be complete, the following must concur:

• Object of the offence. A postage stamp or a stamped effect in the legal sense; private documents or signs that do not evidence a payment to the State fall outside.
• Forging conduct. Forging (creating or altering the effect), distributing it in collusion with the forger, importing it into Spain knowing it is false or, in the reduced limb, distributing or using it after acquiring it in good faith.
• Capacity to induce error. The imitation must have forging aptitude, that is, the ability to pass as genuine before an average observer. A crude, useless imitation may fall outside the offence.
• Intent. The offender acts knowing of the falsity. In the good-faith buyer limb, the provision expressly requires that they act knowingly that the effects are false.

Penalties by Role and Value

Article 389 CP grades the penal response on three levels:

• Forging or distributing in collusion / importing knowing of the falsity: six months to three years in prison.
• Buyer in good faith who distributes or uses them knowingly: three to six months in prison or a fine of six to twenty-four months.
• Same conduct where the apparent value does not exceed 400 euros: a fine of one to three months.

The apparent value of the effects — not their cost of manufacture — is the criterion that marks the boundary between the ordinary reduced penalty and the mere fine, on a logic close to the one the Code uses to distinguish between offences and minor conduct in other forgeries.

Tools and Means to Forge: Article 400 CP

Article 400 CP moves the line of protection forward and punishes the material preparatory acts of these forgeries. It penalises the manufacture, receipt, obtaining, holding, distribution, making available or marketing of tools, materials, instruments, substances, data, computer programs, devices, security elements or other means specifically intended for the commission of the forgeries of the chapter, including those in Article 389 CP. The penalty is the same as that laid down in each case for the perpetrators of the corresponding forgery.

Two ideas matter for the defence. First, the means must be specifically designed or adapted to forge; common, lawful instruments do not make out the offence on their own. Second, Article 400 CP requires an orientation towards committing the offence, so the mere possession of multi-purpose material, without that destination, is not enough.

Distinction from Other Forgeries

Forging stamps and stamped effects must be distinguished from neighbouring offences within the same chapter:

• Counterfeiting of currency and of cards or cheques, which have their own offences and an autonomous reproach, distinct from that of stamped effects.
• Forgery of an official, public or commercial document, which falls on documents reflecting declarations or transactions, not on State payment signs.
• Forgery of official marks, seals or passes of another kind, where the protected object is not the fiscal or postal stamped effect.

Precisely classifying the object on which the forgery falls is decisive, because the penalty range and the defence strategy change substantially depending on the applicable offence.

Evidence in These Offences

The evidential core usually turns on the documentary expert examination of the questioned effect and on the knowledge the accused had of its falsity. Typically there are:

• The expert report analysing the medium, the inks, the security features and the quality of the imitation, to determine whether it was capable of inducing error.
• Proof of intent, especially in the good-faith buyer limb, where the prosecution must show that the person acted knowing of the falsity.
• Proof of collusion with the forger in the aggravated limb, which cannot be presumed from the mere fact of distributing the effects.

Lines of Defence

The defence against a charge of forging stamps or stamped effects is built on several verifiable lines:

• Object outside the offence. If the item does not legally qualify as a postage stamp or stamped effect, the conduct does not fit Article 389 CP.
• Lack of forging aptitude. A crude imitation, with no real capacity to induce error, may fall outside the offence.
• Absence of intent. Use or distribution without knowing of the falsity — good-faith purchase and use — is outside the offence; knowledge is an essential element.
• No collusion. In the aggravated limb, disputing the agreement with the forger, which the prosecution must prove.
• Apparent value of the effects to correctly frame the penalty, in particular the 400-euro threshold.
• Challenging the documentary expert evidence and the chain of custody of the seized items.

Each case calls for its own technical and legal analysis, without anticipating outcomes and with the utmost discretion.

Criminal Defence in Document Forgery

The criminal-law firm Alonso Sala, based in Madrid (calle Velázquez 27) and acting throughout Spain, takes on the defence in proceedings for forging postage stamps and stamped effects, as well as for holding tools to forge under Article 400 CP. We analyse the status of the object, the aptitude of the imitation, the presence of intent and the apparent value that fixes the penalty range, and we design a rigorous evidential strategy. You can read more about this service on our page on criminal defence for forgery of stamps and stamped effects.