Using Another Person's ID Document: Only a Crime if It Seeks Real Harm
Last updated:
listIn this article
lightbulbKey Takeaways
- check_circleArt. 393 CP requires real harm, not hypothetical
- check_circleThe harm need not actually materialise
- check_circleShowing another's ID without harm is not an offence
- check_circleThe principle of minimum intervention weighs in
Quick answer
The offence of using another person's official identity document under Article 393 of the Criminal Code requires the conduct to pursue real and effective harm to a third party, according to the Supreme Court, in a judgment of 27 May 2026 (appeal 3897/2023). That harm need not actually materialise, but it must be concrete and not merely hypothetical. Under the principle of minimum intervention, showing another person's identity document to police officers, without that prospect of real harm, falls outside the offence: it is not criminal conduct. The provision punishes the knowing use, to the detriment of another, of someone else's document, so the harmful purpose forms part of the offence itself.
The offence of using another person's identity document under Article 393 of the Criminal Code is often linked to apparently simple situations: someone shows another person's identity document. But the provision does not punish every use of a document that is not one's own. The Supreme Court, in a judgment of 27 May 2026 (appeal 3897/2023), has narrowed the offence and recalled a decisive requirement for the defence: the conduct must pursue real and effective harm to a third party, not merely hypothetical harm. In this commentary we examine the scope of the provision, the difference between real and hypothetical harm, and the role of the principle of minimum intervention.
What Article 393 CP punishes
Article 393 of the Criminal Code sits among the documentary forgery offences, but it describes conduct distinct from forgery itself: the use of the document. It sanctions a person who, knowingly and to the detriment of another, makes use of an identity document belonging to a different person. It is therefore not the person who creates or alters the document, but the person who employs it knowing that it belongs to someone else. From that formulation flow the elements regarded as central to the offence:
- Use of the document. The criminal act is to make use of an identity document belonging to another, whether by presenting it, showing it or employing it in legal dealings.
- Knowledge that it belongs to another. The author must act in the knowledge that the document is not theirs; intent encompasses that awareness.
- The purpose of harming another. The provision itself requires that the use be made to the detriment of a third party. This harmful orientation is not an external addition: it forms part of the offence and conditions its application.
The consequence is important: if that last element is missing — the pursuit of harm — the conduct that the legislator intended to punish is not complete, however much a document that was not one's own has been used.
Real harm versus hypothetical harm
The core of the Supreme Court's judgment lies in clarifying what kind of harm Article 393 requires. And the answer is clear: the harm must be real and effective. The Chamber distinguishes two levels that should not be confused:
- The harm need not materialise. The offence does not require the damage to come about in full. It is enough that the conduct genuinely pursues it for the offence to be capable of being made out.
- The harm must be concrete. What the doctrine does not allow is to be satisfied with merely hypothetical harm: an imagined, abstract or simply possible injury. The action must be directed at effectively injuring a right or interest of a third party.
The distinction matters in practice. It is one thing to require the harm to materialise — which the judgment does not demand — and quite another to treat as an offence the simple use of another's document under the general idea that it "might" harm someone. That generalisation is what the Supreme Court rejects: without real harm towards which the conduct is aimed, the behaviour does not fit Article 393.
Showing the document to police officers
The situation that illustrates this doctrine is a common one: a person shows another's identity document to police officers. Is that fact enough to find the offence of using another person's identity document? The Supreme Court's answer is no, if that display is not accompanied by the prospect of real harm to a third party.
The reasoning is consistent with the structure of the offence. If Article 393 calls for use to the detriment of another, the mere presentation of someone else's document — detached from any concrete harmful purpose — does not complete the conduct. Where the orientation towards causing effective harm is missing, the behaviour is not an offence, that is, it falls outside the criminal provision. This does not mean that every display of another's documentation is irrelevant in every context, but that its fit within Article 393 requires more than the external fact of having shown a document that is not one's own.
For the defence, this criterion offers a clear guide against charges of using another's documentation: the analysis cannot stop at whether the document was shown, but must ask about the purpose of the conduct and, specifically, about the existence of real harm at which it was directed.
The principle of minimum intervention
The Supreme Court grounds this delimitation in the principle of minimum intervention, one of the pillars that guide the application of criminal law. Under this principle, criminal law is the last resort of the legal order: it should intervene only against the most serious attacks on the most relevant legal interests, leaving outside its scope conduct that does not reach that threshold of harmfulness.
Applied to Article 393, this principle reinforces the restrictive reading of the offence. Extending the crime to a person who uses another's document without seeking real harm would mean deploying the criminal tool against conduct that lacks the gravity justifying its intervention. That is why the Chamber reserves criminal reproach for uses effectively aimed at harming a third party. In practical terms, it operates as an interpretive criterion that prevents the expansion of the offence and that the defence may invoke to argue that the conduct is not criminal where the harmful purpose required by the provision is absent.
Takeaways for the defence
The doctrine set out by the Supreme Court in the judgment of 27 May 2026 offers a useful guide for examining charges of using another person's identity document. The central conclusion is that the offence under Article 393 is not made out by the mere use of the document: it requires the conduct to pursue real and effective harm to a third party, even if that harm does not materialise.
From this flow some keys to the analysis. It is worth checking whether the conduct charged was aimed at causing concrete harm to another person or whether it concerned merely hypothetical harm, in which case the conduct does not fit the provision. As with any criminal question, the precise fit depends on the facts of each case and their assessment; this commentary is informative in nature and does not constitute legal advice on a particular matter.
Frequently asked questions
What exactly does Article 393 of the Criminal Code punish?expand_more
Article 393 of the Criminal Code punishes a person who, knowing it to be false, presents in court or uses to the detriment of another an identity document belonging to someone else. The criminal conduct is not forging the document but using it. The essential elements are knowledge that the document corresponds to another person and the purpose of harming a third party. Without that orientation towards causing harm, as the Supreme Court has clarified, the behaviour falls outside the provision even where a document that is not one's own has in fact been shown.
What does it mean that the harm must be real and effective?expand_more
It means the conduct must aim to cause concrete harm to another person, not imaginary or merely possible harm. The Supreme Court clarifies that the harm need not materialise: it is enough that the action genuinely pursues it. What excludes the offence is the absence of any prospect of effective harm. For that reason, a person who simply presents another's identity document, without thereby seeking to injure any right or interest of a third party, does not commit the offence under Article 393 of the Criminal Code.
Is it a crime to show someone else's ID to the police?expand_more
Not necessarily. According to the Supreme Court judgment of 27 May 2026, showing another person's identity document to police officers, without that prospect of real harm to a third party, is not an offence, under the principle of minimum intervention. The conduct may have other consequences, but it does not, on its own, fit the offence of using another person's identity document. The classification depends on the specific purpose: if it seeks to cause effective harm to another person, the analysis changes.
What is the principle of minimum intervention and why does it matter here?expand_more
The principle of minimum intervention expresses that criminal law is the last resort of the legal order and should apply only to the most serious and harmful conduct. The Supreme Court invokes it so as not to extend Article 393 to behaviour that does not seek real harm to a third party. It matters because it lets the defence argue that the conduct is not an offence when that harmful purpose is missing: not every display of another's documentation deserves criminal reproach, only that effectively aimed at injuring another.
Case law discussed
Using another person’s ID document is only a crime if it seeks real harm
This analysis discusses a ruling of the Criminal Chamber of the Spanish Supreme Court. You can see its summary and full citation on our case-law page.
balanceView the ruling· Appeal 3897/2023arrow_forward