Criminal Defence for Forgery of Stamps and Stamped Effects

Forgery of Postage Stamps and Stamped Effects: Arts. 389 and 400 CP

Forgery of postage stamps and stamped effects is punished under Article 389 of the Criminal Code, within the forgery offences of Title XVIII. This provision protects the public faith attached to the signs by which the public administration certifies the payment of fees, the franking or the official origin. The possession of forging tools is punished, on a cross-cutting basis, under Article 400 CP. At Alonso Sala, as criminal defence lawyers specialising in document forgery, we defend those investigated for this conduct.

Unlike public document forgery, which concerns the content of the document, here the conduct affects the postage stamps and stamped effects that certify the payment of a tax or the franking. These figures are closely linked to the rest of the document forgery offences in Title XVIII of the Criminal Code.

Conduct and Penalties (Art. 389 CP)

Article 389 CP distinguishes several types of conduct and penalties depending on the involvement:

• Forging, distributing or importing (Art. 389, paragraph 1): Anyone who forges postage stamps or stamped effects, distributes them in collusion with the forger, or brings them into Spain knowing they are forged faces imprisonment of 6 months to 3 years.
• Good-faith acquirer (Art. 389, paragraph 2): A good-faith acquirer who, once aware of the forgery, distributes or uses them is punished with imprisonment of 3 to 6 months or a fine of 6 to 24 months.
• Lower penalty by value (Art. 389, paragraph 3): If the apparent value of the stamps or stamped effects does not exceed €400, a fine of 1 to 3 months is imposed.

Stamped Effects: Postage Stamps and Policies

Stamped effects are the signs issued by the public administration that certify the payment of a tax, fee or service. They include, among others:

• Postage stamps and official franking.
• Policies and effects for the payment of administrative fees.
• Stamped paper and official paper bearing authenticity marks.

The forgery of these effects, or their distribution or use knowing them to be forged, constitutes the offence under Article 389 CP. The conduct requires that the imitation has suitability to pass as genuine in commerce.

Tools and Programs for Forging (Art. 400 CP)

Article 400 CP advances criminal protection to preparatory acts: it punishes the manufacture, receipt, obtaining or possession of tools, materials, instruments, substances, data and computer programs intended for the commission of any of the forgery offences in the title. The penalty is that laid down for the forgery itself.

This means that possessing machinery, templates or software specifically designed to forge stamps, marks or effects may be punished with the same severity as the completed forgery. The defence must examine whether the seized tools were genuinely intended for forging or had a lawful use.

Defence Strategy

1. Unsuitability of the imitation: Demonstrate that the forged stamp or effect was crude and incapable of passing as genuine in commerce.
2. Lawful purpose of the tools: Under Article 400 CP, establish that the seized instruments were not intended for forging.
3. Absence of intent: Prove the lack of knowledge of the forgery on the part of whoever acquired or used the stamped effect.
4. Lower penalty by value: Where the apparent value of the stamps or effects does not exceed €400, seek the reduced fine of 1 to 3 months (Art. 389, paragraph 3 CP).

Criminal procedure stages and the competent court by penalty

The forgery of postal stamps and stamped instruments (Article 389 of the Criminal Code) and the manufacture, possession or trade of tools specifically designed for forgery (Article 400) are generally investigated as preliminary proceedings before the Investigating Court of the place where the offence was committed. The investigation phase aims to define the subject matter of the case, secure the sources of evidence (seizure of the instruments, tools, plates or printing means) and clarify each participant's role. Once the investigation closes, the abbreviated procedure moves towards the indictment and the opening of trial, at which point the defence may propose evidence and articulate its strategy.

Jurisdiction to try the case is determined by the maximum abstract penalty laid down for the offence (Article 14 of the Criminal Procedure Act). Since Article 389 provides for imprisonment of six months to three years, and Article 400 refers to the penalties of the offence sought to be committed, the penalty does not by itself exceed five years, so the trial falls to the Criminal Court (Juzgado de lo Penal). Only where, through an express statutory connection or concurrence with more serious offences, the maximum penalty exceeds five years would the Provincial Court hear the matter. It should be noted that these offences do not fall to the National High Court (Audiencia Nacional) unless a legally provided ground of connection applies.

Correctly identifying the competent court from the outset has practical consequences: it conditions the time limits, the appeals regime and the possibility of a plea agreement. A defence that rigorously delimits the maximum applicable penalty can object to inflated charges that seek to shift the case to a collegiate court or artificially aggravate the defendant's exposure, and may request dismissal where the evidence does not support the charge.

Material versus ideological falsehood: the boundary for private individuals

Within forgery offences, two levels must be distinguished. Material falsehood physically alters the medium or creates a document or instrument that appears genuine when it is not: this is the core conduct of the forgery of stamps and stamped instruments under Article 389, where what is imitated is the genuineness of the official instrument itself. Ideological falsehood, by contrast, consists of misrepresenting the facts narrated in an otherwise authentic document, without manipulating its medium.

This distinction is decisive in the related documentary forgery offences. Article 392, which punishes the private individual, refers only to the first three numbers of section 1 of Article 390 (altering a document, simulating a document, or pretending the involvement of persons), but leaves out number 4 (misrepresenting the facts in the narration). Hence the settled doctrine: pure ideological falsehood committed by a private individual in a document is, as a rule, not punishable, because the citizen is not bound by the duty of truthfulness that binds public officials. This does not, however, make every conduct that might doctrinally be labelled ideological exempt from punishment if it fits another of the material modalities of Article 390.1.

Applied to stamps and stamped instruments, the reproach of Article 389 focuses on the creation or distribution of false instruments, not on a mere narrative inaccuracy. A technical defence can exploit this boundary to argue that the facts do not cross the threshold of criminal relevance, or that they should be redirected to a charge different from the one brought, with consequent effects on the penalty and the competent court.

Expert and documentary evidence: handwriting, document examination and chain of custody

In these offences the prosecution evidence usually rests on technical reports. Document-examination expertise assesses the authenticity of the stamped instrument or stamp —inks, security papers, watermarks, dies, printing systems— to determine whether it was genuinely issued by the competent authority or reproduced by spurious means. Handwriting expertise, where there are associated manuscript markings, analyses the authorship of the strokes. Article 400 adds its own object of proof: the existence of tools, plates or instruments specifically intended for forgery, whose mere possession is punished independently.

The reliability of these reports depends on the integrity of the chain of custody. From the seizure of the instruments or tools to their laboratory analysis, every link must be documented: identification, packaging, sealing, transfer and preservation. A break in traceability —mislabelled samples, absence of records, undocumented handling— may compromise the evidentiary value of the report and open lines of defence, without this amounting to a predetermined outcome.

The defence may propose a counter-expert report, question the experts at trial about their methodology and margins of error, and challenge the sufficiency of the reference material used. Disputing the scientific basis for attributing authorship or for classifying an instrument as false is often the ground on which the case is decided, together with examining the knowledge the accused had of the falsity.

Boundary with fraud, the subjective element, prescription and plea agreement

Forgery of stamps and stamped instruments (Article 389) or possession of tools for forgery (Article 400) may appear as the instrument of a fraud. Where the false instrument is used to obtain a transfer of assets through deception, it may concur with fraud (Articles 248 et seq.), with the documentary forgery operating as the means of the fraud. The classification —concurrence of offences, concurrence of rules, or a single charge— significantly alters the penalty and therefore the competent court and the defendant's exposure, which is why precise delimitation matters.

These offences are intentional: they require knowledge of the falsity and the will to carry out the conduct. Article 389 expressly demands acting knowingly, and case law rules out negligent commission. The absence of such knowledge —for instance, in someone who receives or handles instruments without noticing their falsity— excludes intent and, with it, criminal liability for these offences, making proof of the subjective element a central pillar of the defence.

Prescription is governed by Article 131 according to the maximum penalty laid down: where it does not exceed five years, the limitation period is five years; between more than five and ten years, it prescribes after ten; between more than ten and fifteen, after fifteen. Since Article 389 and Article 400 do not by themselves exceed five years, the ordinary applicable period is five years, save for concurrence that raises the penalty framework. Finally, where the facts are firmly established, a plea agreement may be considered: acknowledging the facts and repairing the harm caused can operate as a mitigating circumstance and allow a more measured criminal response, a decision that must always be taken after a rigorous review of the file.