Use of a False Document (Arts. 393 and 396 CP): The Penalty for the User, Not the Forger
In this article
Key Takeaways
- Use of an official/commercial document (Art. 393): penalty one degree lower than the forger's
- Common case (ref. Art. 392): imprisonment of 3 to 6 months and a fine
- Use of a private document (Art. 396): imprisonment of 3 to 6 months
- Requires acting 'knowingly' as to the falsity
Arts. 393 and 396 CP punish knowingly using a forged document, in court or to harm another, with a penalty one degree lower than the forger's. For an official document forged by a private individual (Art. 392, 6 months-3 years), use under Art. 393 carries 3-6 months plus a fine; for a private document (Art. 396), use also carries 3 to 6 months. Knowledge of the falsity is decisive.
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It is not only the person who forges a document who commits a crime: so does anyone who knowingly uses one that is false. Articles 393 and 396 of the Criminal Code punish the user, always with a lower penalty than the forger's. As specialist criminal defence lawyers in document forgery, we explain what is punished, how severely, and how it is defended.
What the Use of a False Document Punishes
Art. 393 CP punishes anyone who, knowing it to be false, presents in court or, in order to harm another, makes use of a false official, public or commercial document. Art. 396 CP does the same for a false private document. In both cases the criminal conduct is not creating the document, but making use of it in legal dealings knowing it to be false: presenting it, showing it, or using it to produce an effect. This offence of use targets the beneficiary when there is no evidence they took part in the forgery.
Using Is Not Forging: the Penalty One Degree Lower
The law clearly distinguishes the forger from the user. Whoever creates the document is liable for the forgery (Arts. 390, 392 or 395, depending on the document and the offender); whoever merely uses it is liable under Arts. 393 or 396, with a penalty one degree lower than the one set for the forger. This reduction reflects that using the document is less serious than creating the false document in the first place. However, the penalty for use depends on who forged it: using a document forged by a private individual (Art. 392) is not the same as using one produced by an authority or official (Art. 390), whose reference penalty is higher.
The Penalties (Arts. 393 and 396)
In the most common scenario — an official, public or commercial document forged by a private individual — the reference penalty is that of Art. 392 (imprisonment of six months to three years and a fine of six to twelve months), so that use under Art. 393 carries imprisonment of three to six months plus a proportional fine. For a private document, forgery under Art. 395 is punished with imprisonment of six months to two years, so use under Art. 396 likewise falls to imprisonment of three to six months, also requiring the intent to harm another. If the document used had been forged by an authority or official (Art. 390, imprisonment of three to six years), the penalty for use would be one degree lower than that, considerably higher.
The 'Knowingly' Requirement
The central element of these offences is knowledge of the falsity. The law requires the user to act 'knowingly': anyone who presents a document in good faith, believing it to be genuine, does not commit a crime. Since that knowledge is internal, it is proved through circumstantial evidence: the irregular way the document was obtained, the relationship with the forger, obvious discrepancies between the document and reality, or the user's conduct. The defence is often built around challenging the strength of that inference. When what is used is another person's genuine identity document, the question is governed by its own rules, which we analyse in our article on using someone else's identity document.
Procedural Fraud and Other Concurrent Offences
The use of a false document is often the instrument of another offence. If the document is used to deceive and bring about a transfer of assets, an offence of fraud under Arts. 248 et seq. CP may apply in combination; when the deception is directed at a court to obtain an unjust ruling, the offence is procedural fraud under Art. 250.1.7 CP, with higher penalties. Correctly delimiting these concurrent offences is decisive, since the final sentence depends on it.
Defence Strategies
- Absence of intent: proving that the user was unaware of the document's falsity.
- Crude forgery: if the forgery is crude and incapable of deceiving anyone, the conduct loses criminal relevance.
- The underlying forgery is not an offence: if the document only contains an ideological falsehood by a private individual (which is not a crime), the basis for punishable use falls away.
- Legal irrelevance: showing that the document never actually produced effects in legal dealings.
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Official text: article 393 of the Spanish Criminal Code (BOE)
Frequently asked questions
What is the penalty for using a false official or commercial document?
Art. 393 CP punishes knowingly using a false official, public or commercial document with a penalty one degree lower than the forger's. When the forger is a private individual (Art. 392, imprisonment of 6 months to 3 years), use carries imprisonment of 3 to 6 months plus a fine. The reference penalty is higher if the document was forged by an authority or official (Art. 390).
What about using a false private document?
Art. 396 CP punishes knowingly using a false private document with a penalty one degree lower than that of Art. 395 (imprisonment of 6 months to 2 years), which puts the use at imprisonment of 3 to 6 months. It also requires that the use be intended to harm another person.
Is it a crime if I did not know the document was false?
No. Both Art. 393 and Art. 396 require the offender to act 'knowingly' as to the falsity. Anyone who presents or uses a document in good faith, believing it to be genuine, lacks the subjective element of the offence, and their conduct is not a crime.
What happens if I forged the document myself and then used it?
The use is absorbed by the forgery. When the person who uses the document is the forger themselves, the use is not punished separately, so as not to punish the same conduct twice: they are only liable for the document forgery (Art. 390, 392 or 395, depending on the case).
Is it more serious to present a false document in court?
Knowingly presenting a false document in court amounts to use under Art. 393 or 396, and if it is done to deceive the court and obtain a harmful ruling, procedural fraud (Art. 250.1.7 CP) may also apply, with higher penalties. Both offences can apply together.
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