Credit and Debit Card Forgery Defence Lawyers

Card Forgery: Article 399 bis of the Criminal Code

Forgery of credit and debit cards is governed by Article 399 bis of the Criminal Code, within the chapter on counterfeiting of currency. The legislator has chosen to protect with particular intensity the means of payment that replace cash in economic transactions. As criminal defence lawyers specialising in document forgery, at Alonso Sala we defend those investigated for the forgery, alteration, possession and use of cards and traveller's cheques.

The provision covers both credit and debit cards and traveller's cheques. The reason for its severity is that these means of payment circulate like money: their forgery directly affects confidence in the financial system and is therefore punished with penalties comparable to those for counterfeiting of currency and far higher than those for ordinary public document forgery.

Equated with Counterfeiting of Currency

Article 399 bis 1 CC punishes whoever alters, copies, reproduces or in any way forges credit or debit cards or traveller's cheques with imprisonment of 4 to 8 years. This penalty is the same as that for counterfeiting of currency, making this one of the most serious forgery offences in the Criminal Code.

• Material forgery: Manufacturing a card from scratch, imitating the security features (magnetic stripe, chip, holograms, numbering).
• Alteration: Modifying the data of a genuine card (re-recording the stripe, manipulating the chip).
• Cloning (skimming): Copying the data of a legitimate card onto a different medium in order to operate with it.

The criminal organisation dedicated to card forgery constitutes an aggravated subtype with higher penalties, given the scale and professionalisation of this conduct.

Possession and Use of Forged Cards

The Criminal Code punishes not only the person who manufactures the card, but also whoever possesses or uses it:

• Possession for distribution or use: Possession of forged cards or traveller's cheques intended for distribution or trade is punished with the lower penalty than that provided for the forgery.
• Knowing use by a third party (Art. 399 bis 3 CC): Whoever, without having taken part in the forgery and to the detriment of another, knowingly uses a forged card faces imprisonment of 2 to 5 years.

The suitability of the instrument is essential: the forged card must be capable of operating in commerce (ATMs, point-of-sale terminals, e-commerce). A crude and unusable reproduction may lack criminal relevance for unsuitability.

Concurrence with Fraud and Disclosure of Secrets

Card forgery is rarely committed in isolation; it is usually a means to a financial end. It therefore frequently concurs with other offences:

• Fraud (Art. 248 CP): When the forged card is used to obtain money, goods or services by deception, concurrence with fraud arises.
• Disclosure and revelation of secrets: The unlawful capture of card data (skimming, installation of readers in ATMs) may constitute an offence of disclosure of secrets through unauthorised access to protected data.

The correct delimitation of these concurrences is decisive, since it determines the final penalty and makes it possible to challenge any undue accumulation of charges.

Defence Strategy

1. Unsuitability of the instrument: Demonstrate that the seized card was not capable of operating in commerce and lacked any capacity to defraud.
2. Absence of intent in the use: Establish that the user did not know the card was forged (Art. 399 bis 3 CC requires knowing conduct).
3. No intended trade: In possession cases, dispute that the cards were intended for distribution or use.
4. Delimitation of concurrence: Avoid double punishment where the forgery and the fraud respond to one and the same operation.

Criminal procedure stages and the competent court by penalty

Objective jurisdiction over these offences is fixed by the maximum penalty provided in the abstract for the offence, under Article 14 of the Criminal Procedure Act. The basic conduct of manufacturing, altering, copying or duplicating under Article 399 bis 1, punishable by four to eight years' imprisonment, exceeds the five-year threshold, so it is tried before the Provincial Court (Audiencia Provincial). The use of a forged card to another's detriment under Article 399 bis 3, punishable by two to five years, does not exceed that limit and is heard before the Criminal Court (Juzgado de lo Penal). It is worth clarifying that the National High Court (Audiencia Nacional) has no jurisdiction unless an express statutory connection applies, which is not the case in the generality of these matters.

The proceedings follow the ordinary stages of the abbreviated procedure or the sumario, depending on gravity. The investigation seeks to establish whether the forgery actually occurred, the origin of the instrument and each suspect's role; this is where the expert reports are produced and the banking documentation is gathered. Once the intermediate phase concludes, where the court decides whether to open the trial or to dismiss the case, the hearing takes place before the competent court. A rigorous defence intervenes from the first statement, scrutinising the chain of custody of the seized media and the lawfulness of any searches and data extractions.

Material versus ideological falsehood: the limits of punishment

The distinction between material and ideological falsehood is decisive in defining the punishable conduct. Material falsehood physically alters the medium or creates an object that appears genuine, whereas ideological falsehood consists of departing from the truth in the narration of facts within a document that is formally authentic. In the forgery of cards and means of payment the characteristic feature is material falsehood: manufacturing, cloning the magnetic stripe or chip, duplicating data, or tampering with the medium. That creation or alteration of the instrument is precisely the core of Article 399 bis 1.

A general principle in documentary forgery committed by private individuals must be stressed: under Article 392 in relation to Article 390.1.4, mere ideological falsehood, that is, departing from the truth in the narration of facts, is not punishable when committed by a private individual, since such a person is not bound by a general duty of truthfulness. The defence must therefore analyse whether the conduct charged amounts to a genuine material manipulation of the instrument or whether, on the contrary, it reduces to mere untruths that are not criminalised. This classification governs how the act fits the offence and the applicable penalty.

Expert and documentary evidence: authenticity and chain of custody

Proof of the forgery rests largely on expert and documentary evidence. Documentoscopic expert analysis examines the physical medium of the card or cheque, its security features, the magnetic stripe, the chip and the recorded data, to determine whether they have been tampered with, cloned or created from scratch. Where signatures are involved, handwriting expert analysis tests their authorship. To this is added the banking documentation, transaction records and data from capture devices, which allow the origin and use of the instrument to be reconstructed.

The defence must closely scrutinise the chain of custody of the seized items: identification, sealing, transfer and storage of the media, as well as the integrity of any electronic data extractions. Any break or lack of traceability can undermine the evidential value of the expert report and open the door to challenging it, proposing a counter-expert opinion, or requesting that evidence be produced at trial. The presumption of innocence requires that both the authenticity of the forgery and the defendant's involvement be proven beyond all reasonable doubt; generic indications are not enough.

Concurrence with fraud, prescription and the subjective element

Card forgery frequently concurs with the offence of fraud (estafa), where the forged instrument is used as a means to obtain a transfer of assets through deception. The relationship between the forgery as an instrument and the consummated fraud must be resolved under the rules on concurrence of offences, distinguishing whether there is a concurrence of separate offences or a progression in which the forgery serves as the means for the deception. This classification has significant consequences for the resulting penalty and for the defence strategy, so it is essential to pin down precisely which conduct is attributed in each case.

As to prescription, because Article 399 bis 1 provides a penalty reaching eight years' imprisonment, this offence prescribes after ten years, a period to be calculated under the rules of the Penal Code. The subjective element is equally essential: the conduct requires intent (dolo), and the use modality of Article 399 bis 3 requires acting knowingly as to the falsity and to another's detriment, so that a reasonable lack of awareness of the falsity excludes liability. Finally, where appropriate and provided the relevant elements exist, a guilty plea (conformidad) and reparation of the harm may be assessed, as the legal framework treats them as circumstances bearing on the criminal response.