This is the fourth post in a series about European law and policy on criminal records by Professors Jacobs and Larrauri.  Prior posts noted that public access is never allowed where a record has been expunged.  This post discusses the types of records that are eligible for expungement, how the expungement process works, and what the effect of expungement is.   (Professor Larrauri’s more detailed discussion of “judicial rehabilitation” in Europe is available here.)  – Eds. 

Just as there are variations in eligibility for and consequences of expungement in U.S. states, there are differences in detail in continental European countries. We focus on Spain, which we know best, though we have no reason to believe that Spain is an outlier when it comes to European countries’ law and policy.  (As in most all criminal record matters, the U.K. is more like the U.S. than continental Europe, making expunged records more accessible to the public than they are on the Continent.)

A preliminary point is that in Spain, as in all other continental European countries, “criminal record” refers to convictions. There are no national databases of arrests, at least none that are accessible to anyone other than the police. In Europe, a “criminal record” is the record of convictions held by each country’s National Criminal Register (NCR).  Arrest records do not circulate beyond the police and may not be organized at the national level.

In Spain, all convictions are eligible for expungement.  Some European countries make the most serious offenses and sex offenses ineligible for expungement.) As in the U.S., a conviction becomes eligible for expungement after passage of a certain amount of time, depending upon the severity of the sentence —  6 months, 2 years, 3 years or 5 years — after completion of sentence without a new charge. In addition, the defendant must have paid any required restitution or civil compensation unless he has been found indigent.

Sometimes the NCR itself expunges the record after the passage of time without any action from the convicted person. More often, the defendant must petition the Ministry of Justice, which will order the expungement as long as the sentence has been served and the waiting period and restitution requirements have been met. When a petition is necessary, the Ministry of Justice must make a decision within 3 months. If the petitioner has not received an answer within that time frame, she can assume that the conviction has been expunged. This is what the law on the books requires. We hasten to add that we do not know if the expunction processes actually works efficiently and as it is supposed to. This empirical question is especially important for non-E.U. immigrants who need to have a clean record to remain in Spain.

In Spain, an expunged conviction is legally equivalent to “never convicted.” Once the conviction has been expunged, a subsequent sentencing judge cannot use it to enhance a sentence; it must be disregarded. Indeed, only the investigative police (and, of course, the record-subject herself) are permitted to find out about the expunged conviction.  Neither public nor private employers can ask for or obtain information about an expunged conviction.

However, there remain a few contexts in which an expunged conviction might become “unexpunged.” For example, some commentators believe that an expert witness (and, in some circumstances, other witnesses) must reveal their own expunged conviction if queried by the trial judge.

In sum, Spanish expungement law and policy reflects and furthers the general attitude toward privacy that applies in most European countries.  Once a person has fully served her sentence, and has gone without further criminal activity for a required period of time, she is entitled to start over with a clean slate.