Private Document Forgery (Art. 395 CP): Penalty & Defense

The offence of private-document forgery, regulated in Arts. 395 and 396 of the Spanish Criminal Code, protects the mitigated public faith that the legal system attributes to documents without public-officer intervention but relevant in legal relations between individuals. It comprises private contracts, receipts, delivery notes, emails, messages with probative value, employer certifications, documents signed without notary and other probative supports of inter-private traffic. Consolidated Supreme Court case-law has precisified the essential peculiarity of Art. 395 CP versus the public-document regime (Art. 392 CP): it requires harm to a third party as a subjective element of the offence. While forging an ID is a crime even if not used, forging a private contract is only punishable if done with intent to cause harm to another person. As criminal lawyers specialising in document forgery, we intervene from the first procedural step with specialised technical strategy.

Typical Forms

The typical modalities of private-document forgery are exhaustively listed under Art. 390 CP by reference. The simulation of a third party's signature in contracts, receipts or private documents (the most recurring conduct: impersonating the signature of a spouse, ex-partner, partner or family member). The material alteration of essential document elements (modifying the amount of a receipt, altering the date of a contract to backdate it, changing names of parties). The integral simulation: complete fabrication of a contract, receipt or delivery note never granted. The attribution of non-existent interventions: including as signatories persons who did not participate in the document. A growing variant is digital forgery: PDF editing with graphic software, simulated digital signature or manipulation of screenshots with probative value. And backdated contracts: typical in divorce operations, hereditary succession, corporate conflicts or creditor defraudation in insolvency cases.

Penalties (Art. 395 CP)

The penalties under Art. 395 CP are significantly more lenient than those for public or commercial documents: prison from 6 months to 2 years. Art. 396 CP sanctions with the same penalty the knowing use of a private document forged by a third party. When the document forgery is instrumentally used to commit other offences (procedural fraud, tax defraudation, Social Security defraudation, asset stripping), real or instrumental concurrence proceeds with significant aggravation of the criminal response. Despite the relative leniency of the custodial penalty, its impact should not be underestimated: it generates a criminal record that may affect regulated professions, public examinations, executive positions and professional licence applications, and opens the door to reparative civil liability for patrimonial and moral damage caused to the harmed third party, frequently substantial in operations of significant economic content.

Defence Strategy

The technical defence articulates several complementary lines. First, the absence of typical harm: if the document modification was made without intent to harm a third party (correction of material error, adaptation to the parties' economic reality, consensual regularisation), the subjective element of Art. 395 CP is not present and acquittal is appropriate. Second, the impunity of ideological forgery in private documents by individuals: settled case-law considers that the individual has no special duty of veracity in their private documents; only material alteration or integral simulation integrate the type. Third, tacit authorisation: in cases of signing for a spouse, partner, business associate or relative with prior express or presumed consent, the forgery intent is absent. Fourth, handwriting and forensic computer expertise to challenge the material attribution of the forgery when authorship is questioned. Fifth, statute of limitations: given the penalty, the prescription period is 5 years from commission of the offence, frequently activated in late-discovery cases.

Current Forensic Practice

In current forensic practice we observe sustained growth in private-document-forgery proceedings, especially linked to divorce conflicts with simulation of economic contracts, hereditary successions with manipulation of holographic wills or codicils, corporate conflicts with backdated contracts between partners, simulated employment contracts to obtain SEPE benefits, fictitious rental agreements for family reunification in foreigner-status cases, and manipulated receipts in debt claims. Organic Law 1/2025 on Justice Service Efficiency, recent Supreme Court case-law on digital evidence and the consolidation of criteria on documentary chain of custody have hardened the evidentiary regime. At Alonso Sala, we tackle each file with handwriting, documentoscopic and forensic computer experts to challenge the proof of falsity or, where applicable, articulate strong private prosecution when representing the victim.