Article 136 Spanish Criminal Code: Cancellation of Criminal Records

Article 136 of the Spanish Criminal Code gives a person who has served a sentence the right to have the record cancelled once the period corresponding to the penalty has elapsed without reoffending: six months for minor penalties, two years for penalties not exceeding twelve months and for negligent offences, three and five years for the intermediate brackets, and ten years for serious penalties. The fifth paragraph adds a provision of great practical value: where the requirements are met but the cancellation has not been carried out, the court must disregard the record. For a foreign national, cancellation governs residence renewals, nationality applications and employment abroad.

Wording of Article 136 of the Spanish Criminal Code

Elements of the offence

1. Extinction of criminal liability, which requires that the penalty has been served, remitted or otherwise extinguished, including the payment of the civil liability where it conditioned a suspension.
2. The elapse of the period corresponding to the penalty imposed, counted from the day following extinction, with the special rule of paragraph 2 for suspended sentences.
3. Absence of reoffending during that period.
4. For the purposes of paragraph 5, evidence before the court that the requirements are met even though the administrative cancellation has not been effected.

Defence strategy

Invoking paragraph 5 at trial. The Ministry does not always cancel records when the conditions are met, and a certificate showing an entry that ought to have been cancelled is regularly used to support recidivism or to oppose suspension. Paragraph 5 requires the court to disregard such records once the circumstances are established. The defence therefore calculates the periods, obtains the enforcement file of the earlier sentence and places the calculation before the court rather than relying on the certificate.

The computation for suspended sentences. Where the earlier penalty was suspended, paragraph 2 traces the period back to the day the penalty would have been served, taking as the starting point the day after the suspension was granted. This produces an earlier cancellation date than a literal reading suggests, and it is frequently miscalculated. Obtaining the date of the suspension order and of the definitive remission is therefore the first step.

Applying for cancellation before it is needed. Because cancellation is granted on application as well as of the court’s own motion, the correct course for a client with an old conviction is to apply as soon as the period has elapsed, rather than to discover the problem when a residence renewal or a nationality application is refused. The application requires the judgment, the certificate of extinction and evidence of payment of the civil liability.

Non-public character of the register. The register is not public, and certifications are issued only with the limitations of the specific rules. Where a record has been disclosed to an employer, a landlord or a foreign authority outside those cases, the disclosure is unlawful and may found a claim, and it also supports an application for the record to be corrected. This arises with some frequency in relation to certificates requested for work with minors.

• Article 131: limitation periods
• Article 89: expulsion of foreign nationals
• Spanish Criminal Code by article
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.