Credit and Debit Card Forgery Defence Lawyers
Specialist criminal defence in the forgery, alteration, possession and use of credit cards, debit cards and traveller's cheques.
Forgery of credit cards, debit cards or traveller's cheques (Art. 399 bis of the Spanish Criminal Code (CP)) is treated on a par with currency counterfeiting and punished with imprisonment of 4 to 8 years for altering, copying, reproducing or forging the instrument; possession intended for distribution or trafficking carries the same penalty (Art. 399 bis 2 CP), while possession for one's own fraudulent use carries a lower penalty of 1 to 2 years (Art. 399 bis 4 CP), and anyone who knowingly uses a forged card without having taken part in forging it, to another's detriment, faces imprisonment of 2 to 5 years (Art. 399 bis 3 CP). The card must have an appearance suitable for operating in ATMs or terminals: an unusable clone may fall outside the offense for lack of suitability. Fraudulent use to obtain money or goods creates concurrence with fraud (Art. 248 CP), and illegal data capture through skimming may further concur with the disclosure of secrets offense. At Alonso Sala we work on the instrument's unsuitability, the absence of intent in its use, and the correct delimitation of concurrence to avoid double punishment.
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 CP 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 CP): 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
- Unsuitability of the instrument: Demonstrate that the seized card was not capable of operating in commerce and lacked any capacity to defraud.
- Absence of intent in the use: Establish that the user did not know the card was forged (Art. 399 bis 3 CP requires knowing conduct).
- No intended trade: In possession cases, dispute that the cards were intended for distribution or use.
- 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.
Penalties & Consequences: Credit and Debit Card Forgery Defence Lawyers
| Type / Scenario | Criminal Penalty |
|---|---|
| Forgery or alteration (Art. 399 bis 1 CP) | Imprisonment of 4 to 8 years, equated with the counterfeiting of currency. |
| Possession for distribution or use | Lower penalty than that provided for the forgery, where the cards are intended for trade. |
| Knowing use by a third party (Art. 399 bis 3 CP) | Imprisonment of 2 to 5 years for whoever, to the detriment of another, uses a forged card without having taken part in its forgery. |
* Penalties shown are indicative. The actual penalty depends on case circumstances, applicable mitigating and aggravating factors.
Defense Strategy: Credit and Debit Card Forgery Defence Lawyers
Unsuitability to Defraud
Establish through expert evidence that the card could not operate in ATMs or terminals, which excludes its capacity to be used in commerce.
Mistake as to the Forgery
Prove that the accused genuinely believed the card was legitimate when using it, which excludes the intent required by the offence.
Correct Medial Concurrence
Delimit the relationship between forgery and fraud to avoid an undue accumulation of penalties for a single course of conduct.
Document Forgery: Penalties and Defence Strategies
Document forgery (Arts. 390 to 400 CP) is an area where technical expert evidence — handwriting and documentoscopic analysis — dominates the trial. As criminal defence lawyers specialising in documentary offences, we have our own network of experts to counter every report filed by the prosecution.
Penalty Table: Document Forgery (Arts. 390-400 CP)
| Offence | Article | Penalty |
|---|---|---|
| Forgery of a public, official or commercial document by an authority or public official | Art. 390.1 | Imprisonment 3 – 6 years, fine 6 – 24 months and special disqualification 2 – 6 years |
| Forgery of a public, official or commercial document by a private individual | Art. 392.1 | Imprisonment 6 months – 3 years and fine 6 – 12 months |
| Forgery of a private document, in order to harm another | Art. 395 | Imprisonment 6 months – 2 years |
| Knowing use of a false public, official or commercial document | Art. 393 | The penalty one degree lower than that of the forgers |
| Knowing use of a false private document | Art. 396 | The penalty one degree lower than that of the forgers |
| Knowing use of a false identity document | Art. 392.2 | Imprisonment 6 months – 1 year and fine 3 – 6 months |
| Forgery of certificates by a private individual | Art. 399.1 | Fine 3 – 6 months |
| Forgery of credit or debit cards and traveller’s cheques | Art. 399 bis 1 | Imprisonment 4 – 8 years |
| Manufacture or possession of tools for forging | Art. 400 | The penalty laid down in each case for the principals |
Defence Strategies in Document Forgery
Capacity of the document to deceive
Punishable forgery requires the altered document to be objectively capable of deceiving in legal traffic. A crude imitation, with no appearance of authenticity, falls outside the offence for lack of that capacity.
Handwriting expert for the defence
Police handwriting reports carry significant margins of error. An independent expert may refute the attribution of the signature or of the manipulation to the accused, or expose methodological defects in the comparison.
Ideological falsehood by a private individual (Art. 392 CP)
A private individual is liable for the falsehoods in the first three subsections of Art. 390.1, but NOT for failing to tell the truth in the narration of the facts: that ideological form is punished only in public officials. Pinpointing which one is charged may lead to the conduct being outside the offence.
Private documents: harm as an element of the offence
Art. 395 CP requires acting "in order to harm another". Without that purpose, forgery of a private document is not punishable, unlike forgery of a public, official or commercial document.
Using a false document versus forging it
Knowingly using a false document and forging it are separate forms of conduct with separate penalties: Arts. 393 and 396 CP punish the use with the penalty one degree lower than that of the forgers. Establishing that the accused merely used it, without taking part in its production, changes the sentencing framework.
Certificates: the lesser offence of Art. 399 CP
Forgery of certificates has its own framework — a fine of 3 to 6 months for a private individual — appreciably lighter than that for official or commercial documents. Disputing the nature of the document is often the most effective route.
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