American criminal record exceptionalism (I): A Spanish comparison

spainA comparative perspective is extremely useful for appreciating the status of individual criminal record information in the U.S.   In this and future blog posts, we would like to share information about criminal record law and policy in continental Europe and the U.K., including some important decisions of the European Court of Human Rights.

We begin with Spain, the continental European country we know best. On the basis of past and on-going research, we believe that Spain’s law and policy on criminal records is representative of continental Europe. This is not surprising because, to some extent, all E.U. member states share a legal tradition and are subject to E.U. laws and ECHR’s judgments. However, to be sure, there are some national differences among E.U. member states.

The Spanish constitution contains both a right to honor and a right to privacy. Both rights provide protections against disclosure of discrediting and embarrassing information, including information about arrests and convictions.  Honor can be injured by both truthful and untruthful information because even true information can embarrass and humiliate. For example, even if it is true that X was convicted of prostitution, disclosing that information might violate her right to honor. Therefore, Spanish courts do not focus on the truth or falsity of the injurious communication, but on whether the communicator had a right to disclose the information. Thus, a journalist would be acting unlawfully and in violation of the right to honor by reporting  X’s conviction unless the information is considered “newsworthy,”  that is, relevant to create a politically informed public opinion, in which case the journalist’s free speech right trumps X’s honor right.

The Spanish constitutional privacy right seeks to protect and promote individual dignity. It guarantees the individual a personal sphere shielded from public scrutiny. Disclosure of information about an individual’s personal life, whether by a government official or a private party, violates this right. Unfortunately, to date no Spanish criminal law treatise or law journal writer has addressed whether a criminal conviction is personal information belonging to the individual’s private sphere  However, in one high profile case the Constitutional Court held that the Elections Agency violated an individual’s constitutional right to privacy when it requested and obtained his criminal conviction record from the National Criminal Register. (See Sentencia Tribunal Constitucional (STC) July 22nd, 1999, Numero 144.) While this Constitutional Court decision said that information about a criminal conviction is protected by the right to privacy, another of the Court’s decisions suggested  that publicizing an administrative sanction did not violate the right to privacy. To say the least, the law on this question is unclear.

In Spain, as in continental Europe generally, criminal records are considered personal information and treated confidentially. The conviction database is held in a national criminal register, which receives information from courts, not police. There is no corresponding national database of arrest information. Information about criminal convictions is not available from courts. In fact, while criminal court proceedings are open to the public, the verdict or judgment is generally not announced in open court. It is, of course, communicated to the defendant, but  it is not available to the media or  to curious individuals. Lower court judges are prohibited from publishing criminal judgments.  All superior courts’ judgments are published in a public web, however the defendant’s name and other identifying characteristics are anonymized by a national agency.

The European Convention on Data Protection provides that “Personal data revealing racial origin, political opinions or religious or other beliefs, as well as personal data concerning health or sexual life, may not be processed automatically unless domestic law provides appropriate safeguards. The same shall apply to personal data relating to criminal convictions.” In compliance with the Convention, the Spanish Personal Data Protection Law (PDPL) states that:(1) personal data can only be maintained in a database from which information can be retrieved with the consent of the affected person; (2) judicial judgments are not public data; and (3) only specially designated government agencies can create criminal offender databases. The Spanish Constitutional Court has held that the PDPL provides broader privacy protection than the Constitution. It protects personal data, that if used by third parties could affect an individual’s rights. Although the PDPL does not prohibit publishing data drawn from public sources, the DPA has ruled that a criminal judgment is not a public source. Additionally, only specified governmental agencies can create or maintain databases populated with individual criminal history information. Therefore, posting to a website information about a named individual’s criminal conviction(s) is unlawful. There are no publicly accessible individual criminal history databases or private information vendors who sell.

While Spanish law affirms an individual’s right to control the dissemination of criminal history information that pertains to her, criminal conviction information is used in Spain, e.g. in granting firearms licenses, residence permits and in certain exceptional hiring decisions by private employers. Employment discrimination based on criminal record is not unlawful. Indeed, Spanish law prohibits individuals with (the equivalent of felony) criminal records from a wide range of government employments, but only until the criminal record is expunged (usually within a few years).

 


This post draws from “Are Criminal Records a Public Matter: The USA and Spain,” 14 Punishment & Society 3 (2012).

Elena Larrauri

Elena Larrauri is a professor of Criminal Law and Criminology at Universitat Pompeu Fabra (Barcelona) and past president of the European Society of Criminology.

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