Criminal Lawyers in Use of False Document

The offence of using a false document, regulated in Arts. 393, 396 and 400 bis of the Spanish Criminal Code, closes the circle of criminal protection of document falsehoods. The Criminal Code sanctions not only the artisan who manufactures the mendacious document (forger), but also the user who, knowing its falsity, introduces it into legal traffic taking advantage of its authentic appearance. Consolidated Supreme Court case-law has precisified the contours of the type: it requires effective knowledge of the falsity by the user and typical exploitation of the document through presentation before authority, exhibition in relevant legal operations or probative use. As criminal lawyers specialising in document forgery, we articulate strategic defence from the first procedural step focused on the subjective element of the type: knowledge of the falsity.

The typical modalities are varied and distributed across several articles. Art. 393 CP sanctions individuals who, knowing its falsity, present in court or, to harm another, use a false document of those covered in Art. 392 CP (public, official, commercial). Art. 396 CP regulates the knowing use of a false private document under Art. 395 CP, requiring intent to harm. Art. 400 bis CP, introduced by Organic Law 5/2010, autonomously typifies the manufacture, receipt, obtaining or possession of false documents for distribution: the so-called document trafficking. The most recurring cases include the presentation of forged IDs or driving licences before authorities, driving with a permit bought online from imaginary or irrelevant countries, the presentation of false academic degrees in public examinations, the filing of false invoices before the Tax Authority or courts, procedural fraud through false documents in civil litigation and the possession of documents for trafficking in organised groups.

The penalties equate the user to the material forger. Art. 393 CP sanctions the use of false public or official document with prison from 6 months to 3 years, the same penalty as material forgery. Art. 396 CP sanctions the use of false private document with prison from 6 months to 2 years. Art. 400 bis CP (document trafficking) imposes prison from 6 months to 3 years and fine for mere possession for distribution. When the use is framed within procedural fraud (Art. 250.1.7 CP), penalties rise to 1 to 6 years' prison due to consideration as an aggravated fraud modality, in instrumental concurrence with the forgery. In cases of using false documents to access public examinations, in addition to penalties, annulment of the obtained position and special disqualification from public employment are foreseen. The reparative civil liability covers patrimonial and moral damages caused to the harmed party and, where applicable, full procedural costs.

The technical defence articulates several complementary lines focused on the subjective element of the type. First, the mistake of fact on the falsity (Art. 14.1 CP): when the client received the document without knowing its false nature and used it in the reasonable belief of its authenticity (for example, hired a manager who delivered the residence permit presented as legal), intent is absent and the conduct falls outside the criminal type. Second, crude or innocuous forgery: if the used document lacks real capacity to deceive the average recipient, it does not affect public faith and acquittal is appropriate. Third, the challenge to wilful blindness: when the Public Prosecutor seeks to apply the wilful blindness doctrine alleging that circumstances were suspicious (abnormally low price, irregular acquisition place, evidently deficient quality), we articulate counter-arguments on the buyer's reasonable diligence. Fourth, in possession-for-distribution cases (Art. 400 bis CP), we discuss the purpose: possession for own personal use does not integrate the trafficking type. Fifth, prescription: given the penalty, the period is 5 years from the last use, frequently useful when discovery is very late compared to manufacture.

In current forensic practice we observe exponential growth in proceedings for using false documents, especially linked to driving licences bought online from exotic jurisdictions, false academic degrees for public examinations and Administration competitions, manipulated COVID-19 vaccination cards during the pandemic, simulated employment contracts for foreigner-status family reunification, false invoices filed in civil litigation to inflate claims and photocopied disabled-parking cards. Organic Law 1/2025 on Justice Service Efficiency, EU Regulation eIDAS2 (2024/1183) on European digital identity, Act 39/2015 on Common Administrative Procedure and consolidated Supreme Court case-law on electronic evidence, digital chain of custody and wilful blindness doctrine have transformed the evidentiary framework. At Alonso Sala, we tackle each file with certified handwriting, documentoscopic and forensic computer experts, articulate procedural strategy focused on the subjective element and build solid technical defence that neutralises or substantially modulates the charge.