The expungement of a criminal record is a process that takes place when a person has served their sentence without reoffending. One of the most common situations in which it is used is in cases involving a restraining order or a no-contact order.
Depending on the sentence imposed, there are different time limits for expunging a criminal record, as governed by Articles 136 and 137 of the Spanish Criminal Code.
Requirements for the expungement of a criminal record
Currently, there are three requirements that must be met for a person to apply to have their criminal record expunged, which are:
- The Extinction of Criminal Liability. Article 130 of the Penal Code defines it as the moment when a person is no longer subject to prosecution or punishment for a crime. This same article lists the circumstances that lead to this outcome, such as the death of the convicted person, the completion of the sentence, etc.
- Compliance with cancellation deadlines. The Penal Code provides that, once the sentence has been served, a period of time begins that depends on the type of sentence.
- No repeat offenses. Third, the convicted person must serve the full sentence without reoffending in the crime that led to the conviction.
What is a restraining order?
A restraining order is a penalty classified under Article 39 of the Penal Code as a deprivation of rights, which entails the following:
- A prohibition on approaching the victim, their family members, or other persons designated by the judge for a specified period of time.
- Similarly, the convicted person may not approach the victim’s residence, workplace, or places the victim frequents during the term of their sentence.
- Finally, it also prohibits any form of communication, such as phone calls, social media, emails, etc.
When a restraining order is issued, any existing arrangements regarding communication, residence, or visitation with the children are suspended. Currently, the duration of this order depends on the type of offense, as detailed below.
- Misdemeanors. The maximum duration of the restraining order may not exceed 6 months.
- Less serious offenses. The restraining order is valid for a period of 6 months to 5 years.
- Serious crimes. The restraining order may last between 5 and 10 years.
Once the period ordered by the judge has elapsed, the time limits for expunging the criminal record related to the restraining order begin.
Time limits for expunging a criminal record related to a restraining order
As explained above, in order to request the expungement of a criminal record, the defendant must meet the three basic conditions set forth in the Penal Code.
One day after the restraining order period ends, a new period begins, the length of which depends on the length of the sentence. In Spain, the law stipulates that, in the case of restraining orders, the periods that must be served are:
- For minor offenses: 6 months
- For sentences imposed for negligent offenses of up to 12 months: 24 months
- For less serious offenses punishable by less than 3 years: 36 months
- For less serious offenses punishable by more than 3 years: 5 years
- For serious crimes: a 10-year sentence must be served
Steps to Request the Expungement of a Criminal Record
To request the expungement of a criminal record, you must complete Form 790, which is available on the Ministry of Justice’s website. In addition, you must pay the fee for this procedure at any bank that works with the Tax Agency.
Next, the lawyer Submit Form 790 and proof of payment to the Cancellations Department of the Ministry of Justice. From the date of the request, you must wait no longer than three months to receive a decision; otherwise, the lack of a response shall be considered a tacit approval.
