Police Records vs Criminal Records in Spain: What They Are, Who Holds Them and How to Clear Them

«Will this show up on my certificate?» That is the question that comes after a detention that ended without charges, a complaint that was shelved, or a stop in the street. The short answer is that there are two distinct trails, with two distinct custodians, two distinct sets of rules and two distinct ways of clearing them. Confusing them means applying at the wrong counter and losing months.

You were detained and worry about what stays on file: what police records are

Criminal records are entries of final judicial decisions. They arise from a conviction and from nothing else.

Police records are internal entries in the databases of the law enforcement bodies: identification files, police reports, arrests, complaints processed. They exist even where the case is shelved, where the trial ends in acquittal and where no proceedings are ever opened. They do not establish that an offence was committed; they establish that there was police activity.

That difference is not rhetorical: it is in the very rule governing the processing of those data. Art. 9 of Organic Law 7/2021, of 26 May (BOE-A-2021-8806), requires the controller to distinguish, as far as possible, between categories of data subjects — persons in respect of whom there are well-founded reasons to presume that they have committed or may commit a criminal offence; persons convicted or sanctioned; victims; and third parties involved — and expressly adds that this must not prevent the application of the right to the presumption of innocence as guaranteed by Article 24 of the Constitution.

Who keeps what

Criminal records live in a system of registers created by Royal Decree 95/2009, of 6 February (BOE-A-2009-2073), under the ministry responsible for Justice. Its Art. 1.2 makes it up of six registers: the Central Register of Convicted Persons, the Central Register for the Protection of Victims of Domestic and Gender Violence, the Central Register of Precautionary Measures, Warrants and Non-Final Judgments, the Central Register of Civil Defaulters, the Register of Judgments on the Criminal Liability of Minors, and the Central Register of Sex Offenders.

Art. 2.1 defines it as a non-public information system whose purpose is to support the courts, the public prosecution service, the law enforcement bodies and other administrative authorities. And Art. 2.3(a) delimits the content of the Central Register of Convicted Persons: the entry of final decisions imposing penalties or security measures, handed down by the criminal courts. Nothing else goes in.

The entry is not made by the police: Art. 13.1(a) of the same royal decree entrusts the transmission of the data to the court clerk, within a maximum of five days from the date the judgment becomes final. And Art. 9 sets out what is recorded: the date of the judgment and of its finality, the sentencing court, the offence and the provision applied, principal and accessory penalties, suspension, revocation, final remission, service of the sentence and civil liability, among other data.

Police records, by contrast, are not in that system. They are files belonging to each police force, subject to Organic Law 7/2021, whose Art. 6.1 requires data to be accurate and kept up to date, and stored for no longer than is necessary for the purposes for which they are processed.

The four differences that matter

• Origin. A criminal record arises from a final conviction. A police record arises from police activity, with or without subsequent proceedings.
• Who holds them. The Central Register of Convicted Persons, within the remit of the ministry responsible for Justice. Police files, within each force.
• Applicable rules. Art. 136 CP and Royal Decree 95/2009 for criminal records; Organic Law 7/2021 for police records.
• External effect. Only criminal records are certified to the data subject under Art. 17 of Royal Decree 95/2009. A police entry is not recorded in the Central Register of Convicted Persons, because that register is reserved to final decisions.

Expunging a criminal record (Art. 136 CP)

Art. 136.1 CP grants convicted persons who have discharged their criminal liability the right to obtain expungement, of the authority's own motion or on application, once the following periods have elapsed without reoffending:

• Six months for petty penalties.
• Two years for penalties not exceeding twelve months and those imposed for negligent offences.
• Three years for the remaining less serious penalties of under three years.
• Five years for the remaining less serious penalties of three years or more.
• Ten years for serious penalties.

The periods run from the day after the penalty is extinguished (Art. 136.2 CP), with the specific rule on conditional remission that the same paragraph sets out. Art. 19.1 of Royal Decree 95/2009 translates those requirements into procedure: expungement is carried out of the authority's own motion, on application by the data subject or on notification by the court, where criminal liability has been extinguished, the periods have elapsed without reoffending and the other requirements of Art. 136 CP are met. Art. 19.2 sets a maximum of three months to decide and notify, with a negative silence rule and subsequent access to judicial review.

Criminal records, unlike police records, can be cleared once these periods have elapsed: the full procedure is on our expungement of criminal records page.

Two caveats save disappointment. First, Art. 19.3 provides that information on expunged entries shall be kept in a special, separate section available only to Spanish courts, and Art. 25 confirms that expungement removes the personal data without prejudice to that reservation. Expunged is not invisible to the judge. Second, Art. 136.5 CP requires that, where the requirements are met and expungement has not taken place, the court, once those circumstances are established, shall not take those records into account.

The step-by-step procedure is in the guide to expunging a criminal record and in the article on how to check it; the position of non-nationals is covered in the guide for foreign nationals. To work out the date you can use the record expungement calculator.

Deleting police data (Organic Law 7/2021)

Here Art. 136 CP is of no use: there is no penalty to extinguish. The regime is that of Organic Law 7/2021, and it rests on three elements.

Periods (Art. 8). The controller must keep the data only for as long as necessary for the purposes of the law, and must review whether to keep, restrict or delete them at most every three years, having particular regard to the age of the person concerned, the nature of the data and the conclusion of an investigation or criminal proceedings. As a general rule, the maximum period for deletion is twenty years, unless factors such as open investigations, offences that are not time-barred, the fact that enforcement of the penalty has not concluded, recidivism, the need to protect victims or other reasoned circumstances are present.

Rights (Arts. 22 and 23). The data subject may obtain confirmation as to whether their data are being processed and access them, together with the information listed in Art. 22.1: purposes and legal basis, categories of data, recipients, retention period and the existence of the right to request rectification or erasure. Art. 23 governs rectification of inaccurate data and erasure, which the controller must carry out without undue delay and in any event within a maximum of one month where the processing infringes Arts. 6, 11 or 13 or where the data must be erased under a legal obligation. Instead of erasing, the controller shall restrict processing where the data subject contests the accuracy of the data and it cannot be established, or where the data must be kept for evidential purposes (Art. 23.3).

Limits (Art. 24). The request may be refused in whole or in part where necessary and proportionate to avoid obstructing inquiries, investigations or judicial proceedings, avoid prejudice to the prosecution of criminal offences or the enforcement of penalties, protect public security or national security, or protect the rights and freedoms of others. Any restriction must be notified in writing within one month, indicating the possibility of complaining to the data protection authority.

The silence rule is worth remembering: under Art. 20.4 of the same law, a request is deemed refused if one month after it was filed it has not been expressly decided and notified.

What appears on the certificate and what does not

The certificate requested for administrative purposes is the one under Art. 17 of Royal Decree 95/2009: on the data subject's application, the data concerning them held in the registers of the system are certified, and negative certificates are issued for anyone not registered. A positive certificate contains a transcript of the data recorded as they stand in the Register at the time of issue, and excludes entries which, under a rule having the rank of statute, are available only to the courts.

Apart from the certificate, Art. 5.2 gives data subjects the right to request access, by inspection, solely to the data concerning them held in any of the registers of the system. And Art. 136.4 CP recalls that the entries are not public: while they remain in force, certificates are issued only with the limitations and safeguards laid down in their specific rules.

Public sector competitions, public employment and work with minors

Three specific rules explain why this matters outside the criminal proceedings:

• Access to public employment. Art. 56.1(d) of the consolidated text of the Basic Statute of Public Employees (Royal Legislative Decree 5/2015, BOE-A-2015-11719) requires, in order to take part in selection processes, not to have been dismissed from the service of any public administration through disciplinary proceedings and not to be under absolute or special disqualification from public employment or office by judicial decision. What closes the door is not the record as such but the disqualification penalty in force, whose scope is explained in the article on disqualification penalties.
• Regular contact with minors. Art. 57 of Organic Law 8/2021, of 4 June (BOE-A-2021-9347), requires, for access to and exercise of professions, trades and activities involving regular contact with minors, not to have been convicted by a final judgment of offences against sexual freedom and integrity or of trafficking in human beings, evidenced by a negative certificate from the Central Register of Sex Offenders.
• Calls for applications and administrative formalities. Where a certificate is required, it is the one under Art. 17 of Royal Decree 95/2009, which reflects the state of the register on the date of issue. That is why expungement has an immediate practical effect on the document.

What the defence looks at

• What is recorded and where. Before requesting anything, exercise the right of access: Art. 5.2 of Royal Decree 95/2009 for the system of registers and Art. 22 of Organic Law 7/2021 for police files.
• The date the penalty was extinguished. It is the day from which the periods of Art. 136 CP run, and it is often recorded wrongly or not at all.
• The right counter. Criminal expungement is decided within the remit of the ministry responsible for Justice (Art. 18.1 of Royal Decree 95/2009); deletion of police data, before the controller of the file.
• The silence rules. One month under Organic Law 7/2021 (Art. 20.4) and three months under Art. 19.2 of Royal Decree 95/2009, both with negative silence and a subsequent challenge.
• Invoking Art. 136.5 CP. Where the requirements are met and expungement has not been carried out, the record should be left out of account, particularly when recidivism is argued.
• The accuracy of the entry. A later dismissal or acquittal makes an entry that ignores them inaccurate, and Art. 6.1(d) of Organic Law 7/2021 requires it to be rectified or erased without undue delay.

If you need to know what is recorded in your name, or a record that is already expungeable keeps appearing, the route is documentary and there are deadlines. You can call us on 91 078 65 74.