Cancelling a criminal record: requirements, time limits and how to apply for it

A criminal conviction can continue to pursue the person who suffered it long after the sentence has been served. A criminal record, that is, the entry of the conviction in the Central Register of Convicted Offenders, can affect access to employment, the obtaining of licences or the possibility of working with minors. It is, in a way, a second penalty that extends beyond the first. But the legal system recognises the right to have that record cancelled once the sentence has been served and a period has elapsed without reoffending.

A criminal record consists of the entries appearing in the Central Register of Convicted Offenders regarding final convictions. They are consulted in various contexts: courts review them to assess recidivism, employers who work with minors are required to request them, and various licences require not having any. It is worth distinguishing them from the criminal record certificate, which is the document that evidences them; from the Register of Sex Offenders, which is specific and independent; and from police records, internal files of the security forces with their own rules.

Article 136 of the Criminal Code establishes the time limits for cancellation according to the severity of the penalty. Six months for minor penalties. Two years for less serious non-custodial penalties and for prison sentences of up to one year. Three years for prison sentences of one to three years. Five years for those of three to five years. And ten years for serious penalties of more than five years’ imprisonment or of absolute disqualification. These periods are counted from the day on which the convicted person extinguished their criminal liability, that is, from when they served the sentence or it was remitted; if there are several convictions, each period is computed independently.

The mere passage of time is not enough. Other conditions must be met: having satisfied the civil liability arising from the offence, or having been declared insolvent with respect to it; not having reoffended during the period, since a new conviction interrupts the count; and that the criminal liability is completely extinguished.

The Criminal Code provides for automatic cancellation once the time limits elapse, but in practice the system does not always operate with that automaticity, which is why it is highly advisable to expressly request the cancellation from the Central Register of Convicted Offenders, accompanied by the documentation evidencing compliance with the requirements.

When a criminal record is cancelled, it cannot be taken into account in future proceedings to assess recidivism, and the convicted person may present themselves as if they had no record. Cancellation, however, does not erase the offence: the judgment still exists in the judicial archives, and in very specific contexts previous convictions may be assessed even if they have been cancelled.

Some special situations deserve attention. The Register of Sex Offenders has its own rules: entries may be retained for up to thirty years from the extinction of the penalty in the most serious offences. Foreign convictions may be registered in Spain under specific rules. And the suspension of a prison sentence shortens the cancellation period, which begins to run when the penalty is declared remitted; if the Register retains a record that should already have been cancelled, rectification may be requested and, where appropriate, an appeal lodged.