Document Forgery Lawyers in Marbella

The decriminalization of ideological falsehood committed by private individuals (Article 392 of the Criminal Code)

Article 392 of the Criminal Code punishes a private individual who commits, in a public, official, or commercial document, any of the falsehoods described in the first three numbers of Article 390.1 of the Criminal Code, expressly excluding the fourth form. This exclusion — one of the most significant criminal-policy decisions of the 1995 Code — is one of our principal lines of defense: a private individual who drafts a document and departs from the truth in it, without materially altering its physical support or simulating its authenticity, does not commit a document forgery offence, however reprehensible their conduct may be from other perspectives.

Mendacious invoices and contracts: the Supreme Court's new doctrine

Case law had nonetheless been accepting that a contract or an invoice documenting a nonexistent economic transaction could be classified as "simulation" under Article 390.1.2 of the Criminal Code, and therefore also as a criminal offence for the private individual. This interpretation has been corrected by a recent ruling that marks a turning point in the defense of directors and business owners against this type of charge:

"...un contrato mendaz o simulado, o una factura mendaz, no son constitutivos del delito de falsedad por simulación."

(The Supreme Court held that a mendacious or simulated contract, or a mendacious invoice, does not constitute the offence of forgery by simulation.) This doctrine, confirmed months later by STS 1033/2024, of 14 November 2024, draws a precise distinction between a document that is false in its physical support or its authenticity — criminally relevant — and an authentic document that simply records a mendacious statement or a transaction that does not correspond to economic reality — criminally irrelevant for the private individual, without prejudice to their possible liability through other avenues, such as tax fraud or accounting offences. Its application is decisive in proceedings concerning irregular invoicing, simulated contracts between related companies, or certifications of corporate resolutions that were never formally adopted — scenarios in which we systematically work toward the recharacterization of the facts.

The restrictive interpretation of "commercial document"

Not every document linked to a commercial transaction merits the reinforced protection of Article 392 of the Criminal Code. The Supreme Court has clarified that the legal interest protected by this provision is not individual but collective — the security of legal-commercial dealings — and that, consequently, only documents that, by their function, generate a qualified degree of trust vis-à-vis third parties can sustain this aggravated offence, with the remaining commercial documents left under the more limited protection of Article 395 of the Criminal Code concerning private documents. This distinction, with a direct bearing on the applicable penalty, is another of the technical pillars of our defense.

Falsifying intent (dolo falsario) as the decisive subjective element

Every form of document forgery requires, in addition to the objective element of the distortion of the truth, so-called dolo falsario (falsifying intent): the awareness and will that the altered or simulated document should have effect as genuine in legal dealings, when it is not. The absence of this purpose — for example, where the alteration lacks any bearing on the document's effectiveness, or where the protected legal interest was never actually placed at risk — excludes criminal liability, a matter that the most recent case law requires to be assessed on a case-by-case basis, and to which we pay particular attention when the alteration at issue is ancillary or immaterial to the document's evidentiary function.

Falsification of a private document (Article 395 of the Criminal Code)

Where the forged document is private in nature, Article 395 of the Criminal Code applies, which requires an additional element absent from Article 392 of the Criminal Code: that the falsification be committed with the specific purpose of causing harm to another. The penalty, moreover, is markedly lower — imprisonment from six months to two years — which makes the correct classification of the document as public, official, commercial, or private especially important, and in practice this is one of the first fronts of technical dispute in any forgery proceeding.