Criminal Lawyers in Commercial Documents

The offence of commercial document forgery, regulated in Art. 392 in relation to Art. 390 of the Spanish Criminal Code, protects the security of the legal-economic traffic and the collective trust in commercial instruments. Invoices, cheques, promissory notes, bills of exchange, delivery notes, commercial contracts, balance sheets and other accounting documentation circulate daily through the economy generating obligations to third parties, banking financing and tax credit; but not all of them count as commercial documents for criminal purposes. Since Plenary judgment STS 232/2022, the Supreme Court reserves Art. 392 CP for those that, because of the trust they generate in third parties, can affect the security of commercial dealings at large (negotiable instruments, accounts, banking or insurance contracts, documents prepared to defraud the Tax Agency or Social Security); delivery notes, receipts or contracts with no relevance for third parties without that reach fall under private document forgery, Art. 395 CP. Consolidated Supreme Court case-law has precisified that the commercial document enjoys the same criminal protection as the public and official document, in view of its reinforced probative relevance in legal traffic. As criminal lawyers specialising in document forgery, we articulate coordinated criminal-tax defence.

Typical Forms

The typical modalities under Art. 390 CP, applicable to the commercial document by reference of Art. 392 CP, are exhaustively listed. The material alteration of essential elements of the document (amounts, dates, concepts, signatures, stamps). The integral simulation: complete fabrication of a non-existent commercial document (phantom invoice for services not rendered, simulated contract between related parties, fictitious balance sheet). The attribution of intervention to persons who have not partaken (simulating signatures of guarantors, parties in operations, endorsees). The most recurring modalities in forensic practice include false invoices to inflate deductible expenses or feign intra-community purchases in VAT carousel schemes; cooked balance sheets to obtain banking financing or attract investment; altered promissory notes and cheques in amount, maturity or endorsement; fictitious delivery notes in mass-consumption or construction operations; and backdated commercial contracts to defraud creditors or partners.

Penalties (Art. 392 CP)

The penalties are severe. The basic type under Art. 392.1 CP sanctions with prison from 6 months to 3 years and fine from 6 to 12 months. The concurrence with other economic offences is common and multiplies the criminal reach: the tax offence (Art. 305 CP), when the defrauded amount exceeds EUR 120,000 per tax and year, adds prison from 1 to 5 years (up to 6 years in its aggravated form); fraud (Arts. 248-250 CP) in its aggravated form adds 1 to 6 years' prison; the corporate offence of account falsification (Art. 290 CP) adds prison from 1 to 3 years. In continued-offence cases of document forgery (multiplicity of false invoices or manipulated documents within a single criminal unit), penalties are imposed in their upper half under Art. 74 CP. The criminal liability of the legal entity (Art. 31 bis CP) does not extend to document forgery or account falsification, but it can be activated against the involved companies for the related tax offence (Art. 310 bis CP) or fraud (Art. 251 bis CP), with substantial fines and a ban on contracting with public authorities.

Defence Strategy

The technical defence articulates several complementary lines. First, the atypicality of ideological forgery committed by individuals: settled Supreme Court case-law holds that lying in the narration of facts contained in a commercial document by an individual is generally unpunished; it is only punishable when integral simulation of the document concurs or when the subject has a special duty of veracity (corporate administrators with respect to annual accounts). Second, the technical discussion of the altered essential element: if the modification affects accessory or secondary elements, it does not integrate the type (principle of minimum intervention). Third, the absence of capacity to harm: manifestly innocuous alterations or those without real capacity to affect legal traffic lack criminal relevance. Fourth, the effective delegation to the financial team and advisors with the benefit of the principle of trust for the signing administrator. Fifth, the handwriting and computer expert challenge of the material authorship of the forgery.

Current Forensic Practice

In current forensic practice we observe a strong increase in commercial-document forgery proceedings, especially linked to VAT carousel-fraud schemes, frauds against banking institutions through inflated balance sheets to obtain credit, frauds against investors in company-sale operations with manipulated accounts, and corporate frauds between partners. Act 11/2021 on anti-fraud measures, EU Directive 2017/1371 on the protection of financial interests, EU Directive ATAD 2016/1164 and recent Supreme Court case-law on document forgery and concurrence with tax offence have reinforced the sanctioning regime. Organic Law 1/2025 on the efficiency of the Public Justice Service is a procedural and organisational statute: it does not amend the Criminal Code or its penalties. At Alonso Sala, we tackle each file with a multidisciplinary criminal-tax-accounting team: we conduct forensic audit of the questioned documentation, articulate handwriting and economic expertise, manage coordination with auditors and tax advisors, and build defence that minimises the criminal qualification and the scope of real concurrence.