Counterfeit and forgery

In Spain, it is punishable by 8 to 12 years’ imprisonment and a fine of one to ten times the apparent value of the currency:

– Whoever alters or manufactures counterfeit currency.
– Whoever brings into the country or exports counterfeit or altered currency.
– Whoever transports, sells or distributes counterfeit or altered currency.
– If the currency is put into circulation, the upper half of the penalty shall be imposed.

If a person receives counterfeit currency in good faith and subsequently distributes it knowing it to be counterfeit, the penalty in Spain is imprisonment for 3 to 6 months and a fine of 6 to 24 months. We are all familiar with examples of this scenario, where someone receives a counterfeit banknote back without realising it at the time.

In this respect, it is essential to point out that it must be the prosecution who proves that at the time of putting the received banknote into circulation, the subject knew that it was counterfeit. This is a difficult circumstance to prove.

In Spain, the counterfeiting or issuing of stamps with the connivance of the counterfeiter is punishable with a prison sentence of 6 months to 3 years.

The purchaser of stamps who knows that they are counterfeit and distributes or uses them in a quantity of more than 400 euros, will be punished with a prison sentence of 3 to 6 months.

Exception: If the amount is less than 400 euros, a fine of 1 to 3 months is imposed.

There are two kinds of forgery in Spanish Criminal Law:

– Material forgery: This affects the authenticity of the document, and is a forgery in which either the document has been altered or it is a partial or total simulation of the document. For example, a person who falsifies a medical certificate.

-Ideological forgery: This affects the veracity of the document, and involves forgery in which the document is authentic, but does not reflect reality. For example, a notary attesting to the intervention of persons who have not been involved in the document.

The authority or public official who, in the exercise of his duties, commits forgery, will be punish with a prison sentence of 3 to 6 years, a fine of 6 to 24 months and special disqualification for a period of 2 to 6 years.

It must be during his activity as a civil servant. If the official commits the forgery in his private sphere, this rule does not apply.

There are cases that have raised doubts and finally the Courts have decided to declare that they do not constitute an offence:

– Signature in blank: the conduct of a person who consents to sign in blank does not constitute this type of forgery.

– Signing with the name of another but with their consent: in this sense, it makes no difference whether or not there has been an imitation of the real signature.

There are other doubtful cases in which, a priori, case law has repeatedly pointed to the existence of forgery:

– Attributing false statements or declarations to participants in a meeting or act, provided that these affect the function of the document. In other words, anecdotal or irrelevant statements are not forgeries.

– Ideological forgeries provided that they refer to facts, not to legal evaluations, since the latter are not susceptible to a judgement of veracity.

This is the same type of forgery as in the previous section, but committed by a private individual. In Spain, penalties for this kind of cases go from 6 months to 3 years and a fine of 6 months to 12 months.

With regard to the preparation of false invoices, there are two lines of interpretation:

– On the one hand, the Courts that affirm that by falsifying an invoice there is a total simulation of the document in order to mislead about its authenticity and therefore entails a lack of correspondence with reality. In short, the conduct is punishable under Art. 390.1.2.2.
– On the other hand, those who point out that the invoice is authentic because it was recognised by the person signing it and what exists is a lack of truth in the narration of the facts, so that the conduct is unpunishable under Art. 390.1.4.

-The cases that already have a unanimous solution are those in which the forgery affects the signature of the private individual. If the private individual disfigures his own signature, the essential elements of forgery are missing, because neither the veracity nor the legitimacy is altered.

– Another case that has also been resolved is where a private individual leads a third party, e.g. a notary, to believe that the person appearing before him is another person. In such cases, we are talking about forgery i.e. by using a public official as a mere means.

Those who, without having been involved in the forgery, traffic in it will be charged with the same offence. According to the Spanish Civil Code, the penalties are prison from 6 months to 3 years.

Those who merely use the forged identity documents will be sentenced to 3 months to 1 year imprisonment.

Identity documents also include passports and driving licences. More doubtful cases are foreign identity documents and international permits.

Art. 395 of the Spanish Penal Code stipulates penalties of 6 months to 2 years for anyone who, in order to harm another, commits forgery in a private document.

Forgery is understood as:

– Alteration of a document in any of its essential elements or requirements.
– Simulation of a document in whole or in part, in such a way as to mislead as to its authenticity.
– Assumption in an act of the intervention of persons who have not been involved.

Similarly, those who merely use the document will be subject to a lesser penalty.

There are several types:

– Forged certificate by a medical practitioner: this would be the case of health professionals such as doctors. The penalties are 3 to 12 months imprisonment.
– Forgery of a certificate by a public official: in this case, from 6 months to 2 years imprisonment.
– Forgery of a certificate by private individuals: this would be the case e.g. of the president of a housing cooperative. Penalties of 3 to 6 months fine.

Spanish Criminal law protects all means of payment: cheques, cards and other payment instruments.

Anyone who alters, copies or reproduces these means of payment is punished. A common example is card cloning, counterfeiting, fraud, hacking, swiping, skimming or any other way to commit the crime. The penalties are 4 to 8 years imprisonment.

The penalties are aggravated in cases where they affect a multitude of persons or are committed within a criminal organisation.

In these cases, the most important thing is to identify the movements of the bank accounts in order to locate the defrauded funds.

Those who, without possessing the corresponding academic degree issued or recognised in Spain, pass themselves off as a professional in this activity. Academic qualifications are understood to be university degrees: diploma, graduate, degree, architect, engineer or doctorate).

The penalty is a fine of 12 to 24 months.

Those who, without having an official qualification, pass themselves off as having a degree. A degree is understood to be any other academic certificate issued or recognised by the State that enables the exercise of a profession.

For example, the following would fall under this heading: real estate agent or administrative manager.

In this case, it is punishable by 6 to 12 months imprisonment.