Using Another Person's ID Document with the Police Is a Crime: The Supreme Court Sees Real Harm

Using another person's identity document is punished through Article 400 bis of the Criminal Code, which treats the use of a genuine document by someone not entitled to it as the use of a false document, in conjunction with Article 393. Supreme Court judgment 368/2026 of 27 May (appeal 3897/2023) recalls that this provision requires the document to be used to harm another and that the harm sought must be real and effective, not merely hypothetical. But it does not acquit: it upholds the conviction of a driver who showed police officers another person's driving licence as his own, because it sees real harm in that conduct. In this commentary we examine what Article 393 punishes, where the requirement of real harm comes from, why showing the document to the police meets it, and what room is left for the defence.

What Article 393 CP punishes and what Article 400 bis adds

Article 393 punishes anyone who, knowing it to be false, presents in court or, in order to harm another, uses a false document of those covered by the preceding articles: public, official or commercial documents. It does not mention another person's genuine document. That case comes in through Article 400 bis, which, in the cases covered by Articles 392, 393, 394, 396 and 399, also treats as use of a false document the use of a genuine document by someone not entitled to it. The elements of the offence follow from the two provisions together:

• Use of the document. Presenting it, showing it or employing it in legal dealings as one's own.
• Lack of entitlement. The document belongs to another person and the user knows it.
• The purpose of harming another. Outside court proceedings, the use must be made "to harm another". Presenting the document in court does not require that purpose.

The penalty is one degree lower than that set for forgers. For an official document used by a private individual, the reference is Article 392.1: six months to three years' imprisonment and a fine of six to twelve months. In the two cases the Supreme Court decided in 2026, the sentence was three months' imprisonment and a three-month fine.

What about Article 392.2? It punishes trafficking in false identity documents and, with six months to one year's imprisonment and a fine of three to six months, knowingly using one, without requiring any purpose of harm. In judgment 152/2026 of 23 February, the majority of the Chamber refused to bring the use of another person's genuine document under that provision: Article 400 bis does not turn a genuine document into a false one or lower the elements of Article 393, which is the provision that applies. A dissenting opinion argued for Article 392.2.

Real harm versus hypothetical harm

The requirement of real harm comes from Plenary judgment 396/2021 of 6 May. The case concerned a person who parked using her brother's disabled parking card without him being with her. The Plenary held that the card is an official document, but found that the conduct fell outside the offence for two reasons:

• The harm sought must be real and effective. It need not materialise, but it is not enough that the use might, in the abstract, harm someone. Article 393 does not say "knowing that it might harm another" but "to harm another". The Plenary grounded that restrictive reading in the principle of minimum intervention.
• Harm to another is not the general interest. It cannot be equated with the interest of the State, or of people with disabilities as a group, in the rules being respected: on that argument, any use of a false document would be an offence.

Judgment 368/2026 reproduces that doctrine: the harm need not materialise, but what is sought must be effective, not hypothetical, harm. The question is what happens when the document is not a parking card but an identity document shown to the police.

Showing another person's document to police officers

This is where the judgment makes its practical contribution, and it goes against the appellant. A driver who had lost all the points on his licence was stopped by the police and showed a driving licence in another person's name to hide that he was not allowed to drive. The criminal court convicted him of driving without a licence (Art. 384 CP) and of using another's official document (Arts. 400 bis and 393 CP), and the Madrid Provincial Court upheld the conviction. On cassation, the defence relied on the parking card doctrine: no identified third party could be harmed. The Supreme Court rejected it:

• The case is different. It concerns another person's identity document shown to the police, not a parking card, which does not identify its holder.
• The harm sought is real. The display was meant to make the officers believe the document was his and so avoid a police report for the offence he was committing. And, as judgment 152/2026 had held, the use also implicates the person identified in the document.
• The harm need not materialise. The officers discovered that the driver was not the holder, but the harm sought was effective, not hypothetical.

Judgment 152/2026 had decided an almost identical case in the same way: the driver showed his brother's driving licence as his own. The Barcelona Provincial Court had acquitted him for lack of harm to a third party, and the Supreme Court reinstated the conviction: using another person's document means accepting the risk of drawing that person into the consequences of the criminal proceedings opened on the basis of that identification, and in that case the licence was actually seized. For the Chamber, a driving licence serves to identify its holder.

The principle of minimum intervention: where it applies and where it does not

The principle of minimum intervention holds that criminal law is the last resort of the legal order and should intervene only against the most serious attacks. It is the reason the 2021 Plenary required real rather than hypothetical harm, and the reason using a relative's parking card was left outside the Criminal Code, for administrative sanctioning law to deal with.

That principle does not, however, take outside the offence the display of another person's identity document to the police. In judgment 368/2026 it appears as the appellant's argument, and the Chamber rejected it. It keeps its force for uses that seek no concrete harm to anyone and in refusing to equate harm with the State's general interest in false documents not being used.

Takeaways for the defence

After judgments 152/2026 and 368/2026, simply arguing that there was no intention to harm anyone has little prospect of success where another person's identity document was shown as one's own to police officers: the Supreme Court sees in that conduct the real harm Article 393 requires. The defence analysis shifts to other points:

• Whether the document was really used as one's own and whether the user knew they were not entitled to use it.
• Whether, outside a display to the police, the use sought anything more than hypothetical harm, which is the line the Plenary drew in 2021.
• The position of the dissenting opinion in judgment 152/2026, which regarded the harm to the holder as indirect and denied that the display sought to harm him. It is currently a minority view.
• The penalty, which is one degree lower than the forger's. If, in addition, another person's identity is persistently assumed, usurpation of civil status under Article 401 may come into play.

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.