Expungement of the criminal record of the restraining order

Expungement is a procedure that takes place when a person has completed his or her time of conviction without reoffending. One of the most frequent cases in which it is used is in the prohibition of approaching the victim or restraining order.

Depending on the sentence received, there are different deadlines for expungement, which are regulated by Articles 136 and 137 of the Spanish Penal Code.

Requirements for expungement of criminal records

judge in possession of documents
judge in possession of documents

Today, there are three requirements that must be met in order for a person to apply for an expungement, which are:

  • Extinction of criminal liability. Article 130 of the Penal Code defines it as the moment when a person ceases to be prosecuted or punished for a crime. This same article lists the causes that trigger this condition, such as the death of the convicted person, the completion of the term of the sentence, etc.
  • Compliance with cancellation deadlines. The Penal Code establishes that, once the sentence has been served, a period of time begins that depends on the type of penalty.
  • Non-recidivism in the crime. Thirdly, the convicted person must serve the established sentence without reoffending in the crime that caused it.

What is a restraining order?

The penalty of distancing is a penalty catalogued in art. 39 of the Penal Code as deprivation of rights that implies the following:

  • Prohibition to approach the victim, his relatives or other persons determined by the judge for a stipulated period of time.
  • Likewise, the offender may not go near the residence, workplace or places frequented by the victim during his or her sentence.
  • Finally, it also prohibits any type of communication such as phone calls, social networks, emails, etc.

When a restraining order is applied, any communication, stay or visitation regime related to the children that existed at that time is suspended. Currently, the duration of this penalty depends on the type of crime, as detailed below.

  • Misdemeanors. The maximum time away may not exceed 6 months.
  • Less serious crimes. The penalty is established between 6 months and 5 years.
  • Felonies. The period of separation can last between 5 and 10 years.

Once the time ordered by the judge has elapsed, the time limits for the expungement of the criminal record of the restraining order begin to run.

Deadlines for expungement of criminal record of the restraining order

Deadlines for expungement of criminal records
As explained above, in order to apply for an expungement, the defendant must meet the three basic conditions stipulated in the Criminal Code.

One day after the end of the time away, a time lapse begins, depending on the length of the sentence. In Spain, the law establishes that, in the case of restraining orders, the time limits to be complied with are:

  • For minor penalties: 6 months
  • For sentences imposed for reckless offenses up to 12 months: 24 months
  • For less serious sentences of less than 3 years: 36 months
  • For less serious penalties of more than 3 years: 5 years
  • For severe penalties: 10 years must be served

Steps to request an expungement of criminal records

To request the cancellation of a criminal record, it is necessary to have the 790 form, which can be obtained from the Ministry of Justice website. On the other hand, the fee for this procedure must be paid at any of the banks that work with the Tax Agency.

The attorney will then submit the 790 form and proof of payment to the Department of Cancellations of the Ministry of Justice. From the date of application, a period of no more than three months must be waited to receive the resolution or consider it a positive administrative silence.

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