Forgery of documents (falsedad documental) in Spain: what it is, penalties and liability within companies

Forgery of documents (falsedad documental) covers conduct that alters the authenticity or essential content of a document capable of producing legal effects. The offence protects the trust that individuals, businesses and public authorities place in documents as a means of proving facts, statements, rights or obligations.

In a business context, forgery of documents may affect contracts, invoices, accounting books and records, certificates, banking documents, negotiable instruments, corporate minutes, documents relating to grants or supporting documents submitted to a public authority or a court.

Not every inaccuracy in a document is an offence. The alteration must concern a relevant element and be carried out knowingly and with the intention of misrepresenting reality, so that the document is capable of producing a legally relevant effect.

What conduct can amount to forgery of documents?

The Spanish Criminal Code provides for four main forms of forgery:

• Altering a document in any of its essential elements or requirements.

• Simulating a document, in whole or in part, in such a way that it may mislead as to its authenticity.

• Recording the involvement of persons who were not involved, or attributing to them statements other than those they made.

• Misrepresenting the facts in the narrative, a form whose scope differs depending on whether the offender is a public authority or official or a private individual.

It may also be an offence knowingly to use a forged document, to submit it in court proceedings, or for a person not entitled to do so to use a genuine document.

Liability is not limited to whoever physically alters the document: it may also extend to whoever commissions, directs, facilitates or uses the forgery knowing its purpose.

Forgery of a public, official or commercial document: what is the penalty?

Where the offender is a private individual and the forgery concerns a public, official or commercial document, Art. 392 of the Criminal Code applies. The penalty is imprisonment of six months to three years and a fine of six to twelve months (day-fine system) where the conduct consists of altering essential elements, simulating the document or attributing to a person an involvement or statement they did not make.

When is a document commercial for criminal-law purposes?

In the case of commercial documents, it is not enough that the document was issued within a company or relates to a commercial transaction. The forgery must be capable of affecting the security of legal and commercial dealings to an extent that goes beyond the specific relationship between two persons.

Negotiable instruments, certain accounting books and records, corporate minutes, certificates intended for the Commercial Registry and certain contracts subject to public regulation or supervision may have that relevance.

An invoice, quotation, delivery note, receipt or proof of payment does not automatically qualify as a commercial document under criminal law merely because it is used in a business activity. Where the document has no wider public dimension and affects only a specific contractual relationship, the conduct may be classified as forgery of a private document, without prejudice to the possible existence of fraud (estafa) if it was used to bring about a transfer of assets.

Use of a forged document

Knowingly using a forged public, official or commercial document, where it is submitted in court or used to harm another person, is punishable by a penalty one degree lower than that for the forger. Anyone who traffics in a false identity document receives the same penalties as the forger.

Knowingly using a false identity document carries a specific penalty of imprisonment of six months to one year and a fine of three to six months.

Forgery of a private document: requirements and penalty

Forgery of a private document requires the document to be forged in order to harm another person. Art. 395 of the Criminal Code punishes this conduct with imprisonment of six months to two years where an essential element is altered, the document is simulated or someone is attributed a statement or involvement they did not make.

For example, forgery of a private document may be committed where a person alters a signed contract to record an obligation that was never agreed, produces a receipt purporting to prove a non-existent payment or alters a private document in order to cause financial harm to a partner, supplier or customer.

The mere inclusion of inaccurate data in a private document is not enough in itself. There must be a criminally relevant alteration and an intention to cause harm. Furthermore, if the forged document is merely the instrument used to commit fraud, the final legal classification will depend on the relationship between the two acts and on the facts as a whole.

Certificates and other specific documents

Forgery of certificates is dealt with separately. A private individual who forges a certificate, uses it knowing it to be false or traffics in it may be punished with a fine of three to six months. This provision refers to certificates of lesser significance.

Certificates relating to the Public Treasury or Social Security have specific significance and may fall under more serious offences depending on their content, purpose and manner of use.

A medical practitioner who issues a false certificate may be punished with a fine of three to twelve months. If the false certificate is issued by a public authority or official and is of little significance in legal dealings, the penalty is suspension from public employment or office for six months to two years.

The manufacture, acquisition, possession, distribution or marketing of tools, materials, data, computer programs or instruments specifically designed or adapted for forging documents is also punishable. The instrument need not actually be used, provided that its intended use for forgery is proven.

Can forgery of documents be committed through negligence?

Negligent forgery is expressly provided for in the case of a public authority or official who, through gross negligence, commits a forgery or allows another person to commit one. The penalty is a fine of six to twelve months and suspension from public employment or office for six months to one year.

For private individuals and in the private business sphere, forgery of documents requires, as a statutory rule, knowing conduct. An accounting error, an administrative mix-up or a lack of diligence may give rise to civil, commercial, tax or administrative liability, but does not automatically turn the matter into criminal forgery of documents.

Falsification of company accounts and documents

Forgery of documents should not be confused with the specific corporate offence of falsifying company documents. De facto or de jure directors who falsify the annual accounts or other documents intended to reflect the legal or financial position of a company may be liable under Art. 290 of the Criminal Code where the falsification is capable of causing financial loss to the company, its members or a third party.

The penalty is imprisonment of one to three years and a fine of six to twelve months. If financial loss actually occurs, the penalties are imposed in their upper half.

Whether this offence applies depends on the content of the document, the function it serves and whether the falsification is capable of causing the loss; not every accounting irregularity is criminally relevant.

Can the company be criminally liable for forgery of documents?

The forgery offences in Articles 390 to 400 of the Criminal Code, except the forgery of cards and other payment instruments under Art. 399 bis, are not among the offences that give rise to direct criminal liability of a legal person (company) under the general regime of Art. 31 bis. Accordingly, the company is not automatically convicted for a forgery committed by a director, employee or associate.

This does not mean that the company is shielded from all consequences. The director, manager, employee or third party involved may be personally liable. In addition, the company may be harmed, may incur civil liability or may be subject to other liability where the facts are linked to other offences, administrative infringements or breaches of corporate, accounting, tax or commercial rules.

For example, if a finance director orders proofs of payment to be altered in order to conceal withdrawals of funds, criminal liability will be directed at the persons who decided, carried out or facilitated the forgery. The company may claim from them the loss caused and, depending on the circumstances, claims may also be brought by members, creditors, customers or public authorities.

Civil liability and other consequences

A conviction for forgery of documents may carry an obligation to make good the damage caused. Civil liability may include restitution of property, reparation of the harm and compensation for financial loss directly caused by the conduct.

In a business context, the following may be claimed, among other heads of loss:

• the amount wrongly obtained;
• payments made as a result of an error induced by the forged document;
• the costs needed to remedy the situation;
• proven financial loss; and
• other losses directly linked to the forgery.

The amount will depend on proof of the loss and of the causal link with the forged document.

Other offences may also be committed at the same time, such as fraud (estafa), misappropriation (apropiación indebida), an offence against the Public Treasury, subsidy fraud, criminal insolvency or corporate offences. Using forged documents to obtain financing, justify non-existent expenses, conceal payments or improperly obtain public aid may significantly increase criminal and financial liability.

Example in a business context

The person in charge of a company alters several invoices to record that materials were purchased for the business when, in reality, the goods were put to personal use. If the invoices are used to have the company pay for those goods or to justify a deduction or a grant, forgery of documents and other offences may be committed, depending on the loss caused, the type of document and the purpose pursued.

By contrast, an invoice containing a clerical error that is corrected transparently, a commercial dispute between the parties or an accounting deficiency without any intention to falsify does not in itself amount to criminal forgery of documents.

Preventing forgery of documents within the company

To reduce the risk of forgery of documents, it is advisable to:

• establish controls over the preparation, review and approval of invoices, contracts, certificates, banking documents and accounting records;
• keep a trail of amendments;
• separate preparation and authorisation functions;
• restrict the use of signatures and digital certificates; and
• document extraordinary transactions and transactions involving directors and employees.

Where there is a suspicion that false documents have been created, altered or used, it is necessary to preserve the original files, emails, metadata, access logs and physical media. Subsequently destroying or altering that information may aggravate the problem and hinder the investigation of the facts.

Frequently asked questions