ID Card and Passport Forgery Defence Lawyers

Forgery of Identity Documents: Article 392 CP

Forgery of identity documents is one of the most frequent forms of document forgery. The national ID card, passport, driving licence and foreigner ID have the status of official documents, so their forgery by a private individual is penalised under Article 392 of the Criminal Code. At Alonso Sala, as criminal defence lawyers specialising in document forgery, we take on the defence of those investigated for forging or using these documents.

The protected legal interest is public faith and the security of legal transactions: society's confidence that these documents faithfully identify their holder. Identity forgery is usually instrumental to other ends, which gives rise to significant concurrences of offences.

Identity Documents as Official Documents

Because of their official character, the forgery of these documents by a private individual is punished with imprisonment of 6 months to 3 years and a fine of 6 to 12 months (Art. 392 CP). The following are included:

• National ID card: The official identification document par excellence.
• Passport: An international travel document with reinforced security features.
• Driving licence: An official document authorising the holder to drive.
• Foreigner ID number: The identification document for foreign nationals.

Use of a Forged Identity Document

The Criminal Code punishes not only the person who manufactures the document, but also whoever uses it knowing it to be forged. Under Articles 393 and 396 CC, whoever uses a forged identity document knowing it to be forged, without having taken part in the forgery, faces a lower penalty than that provided for the forger.

The essential requirement is knowledge of the forgery: whoever presents a document genuinely believing it to be authentic commits no offence. In addition, the forgery must be suitable to deceive: a crude imitation, easily detectable, may fall outside the offence for lacking any capacity to induce error in commerce.

Concurrence with Usurpation and Immigration

The forgery of identity documents gives rise to relevant concurrences with other figures:

• Usurpation of civil status (Art. 401 CP): Where, beyond forging the document, the identity of a real person is impersonated by assuming their legal position, the offence of usurpation of civil status may concur.
• Immigration offences: The use of forged identity documents to facilitate irregular entry or stay may concur with immigration offences.
• Fraud (Art. 248 CP): If the false identity is used as deception to obtain a financial benefit, it concurs with fraud.

Defence Strategy

1. Unsuitability to deceive: Demonstrate that the document was so crude that it lacked any capacity to induce error.
2. Lack of knowledge of the forgery: Establish that the accused was unaware the document was forged when presenting it (Arts. 393 and 396 CC).
3. Absence of real impersonation: Distinguish mere forgery from usurpation of civil status, which requires impersonating an existing person.
4. Delimitation of concurrence: Challenge the undue accumulation of charges where the forgery is a means to another offence.

Material vs. ideological falsehood: why a private individual is not always liable

Not every departure from the truth in an identity document is criminal for a private individual. The Criminal Code distinguishes between material falsehood, which affects the physical reality or the authenticity of the document (simulating a document, altering its essential features, falsely representing that persons took part in an act, or attributing to those who did take part statements other than those actually made), and ideological falsehood, which consists of failing to tell the truth in the narration of the facts contained in the document. This distinction has a first-order practical consequence when defending someone who has manipulated a DNI, a passport or a driving licence.

Article 392 CP, which punishes the private individual who forges an official document, expressly refers only to the first three modes of Article 390.1 CP, leaving out the fourth, which is precisely ideological falsehood by failing to tell the truth in the narration. The prevailing doctrine holds that a private individual, unlike a public authority or official, has no general duty of truthfulness, and therefore mere ideological mendacity in an official document is not a punishable offence when committed by a private individual. Distinguishing the material element from the ideological one in each specific case can be decisive for the legal classification.

This does not mean automatic impunity: where the private individual creates from scratch a document that appears authentic, simulates its existence or alters its substantial features, there is material falsehood fully punishable under Article 392 CP. The boundary is often subtle and depends on the type of manipulation carried out on the particular card, booklet or licence. For this reason, a technical analysis of the mode of falsehood charged, set against the prosecution's account, is one of the defence's first tasks.

The subjective element and the boundary with fraud: when forgery is merely the instrument

Forgery of identity documents requires intent: the person must know that they are altering or simulating a document and intend to introduce it into legal traffic. Merely careless conduct is not enough; negligence is not punished in this field. For the offence of using a false identity document by someone who did not produce it, Article 392.2 CP requires acting in the knowledge of its falsity and imposes a specific penalty of imprisonment of six months to one year and a fine of three to six months. Proving that effective knowledge is one of the defence's natural battlegrounds, especially where the document reaches the user through intermediaries.

Very often, documentary forgery does not appear in isolation but as a means of committing another offence, typically fraud. In such cases case law has consolidated rules of concurrence: where the forgery of an official document is the instrument used to deceive and to obtain a transfer of assets, the courts usually find a medial concurrence between the forgery and the fraud, with its specific penalty rule. The correct classification of the concurrence has a direct impact on the penalty ultimately applied.

The defence therefore examines not only the reality of the forgery, but its connection to the purpose pursued: whether or not there was a fraudulent intent, whether the document was actually introduced into legal traffic, and whether the conduct fits better within an autonomous offence or a concurrence relationship. Misclassifications between simple forgery, forgery as an instrument of fraud, and use of a false document are frequent and contestable. It is also worth distinguishing forgery of identity documents from neighbouring offences such as counterfeiting of currency (Article 386 CP) or of payment cards (Article 399 bis CP), which follow their own regime.

Documentary and handwriting expert evidence: authenticity and chain of custody

In proceedings for forgery of identity documents, the decisive evidence is usually the expert report. The documentoscopic report analyses the physical medium of the DNI, passport, driving licence or residence card: inks, substrates, holograms, security features, micro-printing, kinegrams and UV elements, in order to determine whether the document is authentic, manipulated or entirely simulated. The handwriting report, in turn, studies the authorship of the disputed signatures or manuscript writing. Both are open to challenge, to a counter-expert report from the defence, and to cross-examination of the experts at trial.

The chain of custody takes on special importance here. The seized document must be correctly identified, recorded and preserved from the moment of seizure through to its analysis, without breaks or doubts as to its identity. Any defect in the collection, transfer, sealing or documentation of the corpus delicti may compromise the evidential value of the expert report. The defence reviews seizure records, police reports and the full traceability of the item.

Alongside the expert report, additional documentary and digital evidence should be assessed: issuance records for the authentic document, administrative databases, metadata where the document is electronic, and the traceability of its use. The evidentiary strategy is not exhausted by disputing whether the document is false; it also covers who produced it, who used it and with what knowledge, matters on which the prosecution bears the burden of proof under the presumption of innocence.

Competent court, stages of the proceedings, limitation and routes to closure

Jurisdiction is set by the abstract maximum penalty of the offence under Article 14 LECrim. Forgery of an official document by a private individual under Article 392 CP is punished with imprisonment of six months to three years and a fine, so that it is tried by the Criminal Court (Juzgado de lo Penal). Use of a false identity document under Article 392.2 CP is punished with imprisonment of six months to one year and a fine of three to six months, also within the scope of the Criminal Court. The Provincial Court tries offences carrying a penalty exceeding five years; given their penalty framework, these offences do not draw the jurisdiction of the National Court unless an express statutory connection justifies it.

The procedure is usually handled as preliminary proceedings and the abbreviated procedure: investigation (with the expert report and the chain of custody at its centre), an intermediate stage with the prosecution and defence pleadings, and the oral trial. Limitation is governed by Article 131 CP according to the maximum penalty laid down: where this does not exceed five years, the period is five years; between more than five and ten years, ten years; and between more than ten and fifteen years, fifteen years. For these identity forgeries, framed within penalty ranges that do not exceed five years, the applicable limitation period is five years, calculated according to the statutory rules on commencement and interruption.

There are routes to closure that the defence assesses case by case. A guilty-plea agreement (conformidad) may, where advisable, allow an early and mitigated criminal response within statutory limits. Repairing the harm caused and subsequent conduct may ground mitigating circumstances that affect the penalty. As for corporate criminal liability, it applies only in those offences for which the chapter itself expressly provides it under Article 31 bis CP; where the law does not contemplate it for these forgeries, prosecution is directed against the responsible natural persons. Each of these options is evaluated on an individual basis.