The legislator has created four categories of ‘recipient’ and makes provision for modulated access to the information it contains: it varies according to the status of the recipient and the use which will be made of the information provided. The four categories of recipient are: the judicial and administrative authorities charged with the carrying out of legal missions in penal terms; public administrations; private citizens and the foreign authorities.

This system is the fruit of a compromise between the need for certain people to know an individual’s legal past and that of guaranteeing each person the respect for their private life.

1. The judicial authorities who are the subject of the first category of recipient have the greatest access to the references featured on the criminal record. They have access to the entire contents of each person’s record, within the framework of the missions assigned to them by law. The knowledge of an individual’s past legal history for example enables them to assess if there is a need to place them in preventative custody when they are charged with an offence. An arrest warrant can only in effect be issued in certain conditions, including the existence of serious indication of guilt, the risk of reoffending, the danger of the accused attempting to escape justice or to get rid of proofs, etc. It is obvious that access to the record can in this respect offer precious information as to the action to adopt according to each individual.

And what if no suspect is identified for the crime or the offence which has been detected?  The King’s prosecutors and examining magistrates can obtain – with the single goal of identifying those who have committed a crime or an offence punishable by at least three years in prison – a list of the people who have been convicted or interned for one or more specified offences.

2. Public administrations, the second category of recipient, can only have access to the criminal record in a much more restrictive, partial and conditioned way than the judicial authorities. This access can only be granted within the framework of an objective fixed by law. The purposes for which different administrations have access are specified for each administration or department and the official must specify, for each request, the legal provision which justifies his or her request for access. In addition the administrations do not have access to all the data, and notably not to the lightest convictions. More precisely, their access is limited to just the data which is relevant to the administration concerned, within the context of the mission it has been charged with. If, within the context of attributing public employment positions, the administration, as a future employer, needs all the information which features on the candidate’s criminal record, in order to be able to carry out its right of assessment, the same is not true in every case. Let us take the case of professional prohibitions, for example. To be able to exercise certain professions in the banking sector, a person cannot have been convicted for fraud, breach of trust, issuing cheques without sufficient funds, etc. To perform its function the administration involved in the monitoring of the banking sector will see its access to the criminal record restricted to the reference to offences leading to a prohibition. On the other hand it is not up to it to know if the candidate has potentially been convicted for indecent assault. Despite these precautions abuses still exist. Vincent Seron thus cites accredited representatives ???, deploring the fact that numerous officials gain access to criminal records in cases where it is not justified.

3. Private citizens are the third category of recipient of the criminal record and it is they who receive the most restricted extracts. A linguistic precision is nevertheless required first of all: we no longer talk of a ‘certificate of good conduct and character,’ whose funeral was secured by the Council of State decree of December 22, 2006. The presence of the word ‘behaviour’ in the terms of the late document was not innocent, as it related to the fact that it consisted on a declaration of the behaviour of the party concerned. Springing from, in the final analysis, from the discretionary assessment by local authorities and the police, this declaration according to which Mister X had or didn’t have ‘good behaviour’ exposed the citizens to the risk arbitrariness. In certain cases the police could have information from which it appeared that the conduct of the interested party was better than might be presumed from the convictions pronounced against him or her. Or, on the contrary that he or she was less ‘innocent’ than might be assumed from a legal situation free of any conviction.

Nothing of the sort with the new ‘criminal record certificate’ which replaced the former certificate, and which is restricted to the strict legal antecedents of the individual.

Moreover, to take into account the necessity of social reclassification, the extract of the record given to private citizens is expurgated to a large extent, as it includes neither the data which is not available to the public administrations, nor the measures of social protection, or the measures of youth protection which have been carried out as regards them.

The authority qualifies to provide an extract of the criminal record is the mayor of the local authority in which it is registered. The extract can only be supplied to the person concerned, to the exclusion of any third party, apart from (in the case of illness or infirmity, for example) the people duly authorised by the interested party. On the other hand a private employer, for example, cannot him or herself gain access to the criminal record of one of his or her employees.

One extract, two models

Besides the declaration related to the activity for which the document is requested, the extract contains all the convictions and suspended sentences the interested party has incurred. The same is true for the government making available information concerning people who reoffend and habitual offenders, taken under the law of social protection. The extract given to private citizens also includes details about being sentenced to do work. This reference needlessly stigmatises the people concerned, according to Vincent Seron, and need to be rapidly rectified by the legislator. On the other hand the following are not mentioned after a period of three years has elapsed: convictions for police sentences, convictions for sentences of six months at most, convictions by a simple plea of being guilty, sentences for fines which do not exceed €500 and fines handed down through the laws concerning road traffic monitoring, no matter what the amount. An exception to the exception: the record extract mentions sentences which consist of a forfeiture or a prohibition whose effects exceed a period of three years.

Moreover, particular measures have been provided for when the extract is required to carry out activities within the area of the youth sector

Special references must feature on the model 2 extracts. When the extract is requested to participate in activities within the areas of education, psycho-medical-social guidance, youth assistance or providing support structures for minors, the extract makes additional reference to – acts committed against a minor, and in as far as this element constitutes the offence where the sentence is made heavier - convictions by a simple plea of being guilty, decisions ordering the suspension of the sentence being pronounced or probation, prison sentences, unconditional release or trial release, etc. In short, the legislator, at the outcome of debates strongly marked by paedophilia, wanted to take extra measures in order to place minors in beyond the scope of sex crimes.

 4. Foreign authorities are the final category of recipient. The issue of extracts of the central criminal record is made provision for on order to comply with international mutual legal assistance agreements ratified by Belgium. The idea of creating a genuine European criminal record was at one point entertained, but seems to come up against numerous difficulties. The idea nevertheless remains of establishing ‘categorical criminal records,’ targeting certain forms of criminality. Vincent Seron for his part considers that interconnecting national criminal records is more realistic: interconnected records would satisfy the criteria of sovereignty, the rapidity of transmitting information, reliability and accessibility. It remains to be seen is such interconnectedness will be easily established with the whole of the European Union’s 27 member states.