The criminal record
A. The principle of the criminal record
The criminal record is a file which, for each individual sanctioned on Swiss territory and for Swiss convicted abroad, lists the sentences to which he has been sentenced and the measures pronounced against him.
The main purpose of the criminal record is to know the background of individuals in the context of conducting criminal proceedings, since in Swiss law the guilt of the perpetrator of an offence is determined according to his background. But the criminal record also serves other purposes, such as the prevention of crimes, the transmission of information to Interpol and Europol, the activities of the Money Laundering Reporting Office (MROS), international mutual legal assistance and extradition procedures, the execution of sentences and measures, and civil and military security checks, the adoption and lifting of deportation measures against foreigners and other administrative or judicial expulsion measures, the assessment of the unworthiness of the asylum seeker, naturalization procedures, the issuance and withdrawal of driving licenses and learner’s permits, the adoption and lifting of guardianship measures, the adoption and lifting of measures of deprivation of liberty for assistance purposes, pardon procedures, the assessment of fitness for military or civilian service or the compilation of statistics on crime
The criminal record can be consulted by various authorities, but also by private individuals who are entitled to consult the entries concerning them and who can thus obtain an extract from the criminal record for use by private individuals, particularly when looking for a job, etc.
B. Elimination of entries
However, the entry of a conviction or measure on the criminal record is not permanent. The principle is that after a certain period of time, the convictions and measures are removed from the criminal record in order to enshrine the right to oblivion of the person concerned.
On this basis, there are time limits for the elimination of convictions, after which the entry of the conviction is permanently deleted, even for the authorities, and must not be able to be reconstructed. These time limits, which are relatively long, are provided for in Art. 369 CP (see figure 1 below).
But it is not only the authorities who have access to the criminal record. Individuals also have the right to request an extract from their criminal record. In this case, the law provides that after a certain period of time, the entries in the criminal record no longer appear and are no longer visible on the extract of the criminal record intended for private individuals (Art. 371 PC), even if they have not yet been deleted by the authorities. These deadlines are shorter than the deletion deadlines mentioned above and are calculated according to the deletion deadlines, in principle 2/3 of the deadline applicable for the elimination of the registration (see section 2 below).
In any case, the time limit will depend on the type of sentence (custodial sentence, pecuniary penalty, fine), the length of the sentence, but also on the manner in which the sentence is executed.
1) Deadlines for the final elimination of the registration for the authorities
In the criminal record for the authorities, the deadlines for elimination are, among others, the following (art. 369 CP)
For judgments imposing a custodial sentence:
- 20 years in the case of a custodial sentence of at least five years ;
- 15 years in the case of a custodial sentence of one year or more, but less than five years;
- 10 years in the case of a custodial sentence of less than one year ;
- 10 years in case of deprivation of liberty under juvenile criminal law ;
- 10 years for judgments imposing a suspended prison sentence.
For judgments imposing a pecuniary penalty: 10 years
For judgments imposing community service: 10 years
For judgments imposing a fine as the principal penalty: 10 years
The measurements are also deleted as time passes. In particular, you should know that the judgment in which an eviction is pronounced remains on the criminal record until the death of the person concerned. And if this person does not live in Switzerland, the judgment is eliminated from the criminal record at the latest 100 years after his birth…
2) Time limits for deletion of registration for individuals
In the criminal record for private individuals, the deadlines for deletion / non-visibility of the inscription are as follows (art. 371 CP):
Judgments that impose a sentence of deprivation of liberty no longer appear on the extract after :
- 13 years and 4 months (2/3 of 20 years) in the case of a custodial sentence of at least five years;
- 10 years (2/3 of 15 years) in the case of a custodial sentence of one year or more, but less than five years;
- 6 years and 8 months (2/3 of 10 years) in the case of a custodial sentence of less than one year ;
- 6 years and 8 months (2/3 10 years) in case of deprivation of liberty under juvenile criminal law;
- Judgments imposing a suspended or partially suspended sentence no longer appear in the criminal record when the convicted person has successfully completed probation.
The judgments in which an expulsion is pronounced appear on the criminal record for the duration of the expulsion’s validity.
However, it should be noted that a conviction that should normally no longer appear in the extract from the criminal record for private individuals will remain on the extract if the criminal record contains another judgment for which the time limit has not yet expired (Art. 371 para. 5 PC).
The data that is entered into the criminal record is as follows:
- judgments for crimes or misdemeanors when a penalty is imposed
- judgments for contraventions:
- if a fine of more than 5000 francs is imposed, or
- if community service of more than 180 hours is ordered, or
- if the federal legislation applicable to the particular case gives the authority the express right or obligation to impose, in the event of a repeat offence, a fine of a specified minimum amount or, in addition to a fine, a pecuniary punishment or a custodial sentence, or
- if an activity ban, a contact ban or a geographical ban is imposed, or
- if they are part of a judgment that must be registered for other reasons.
- Persons against whom criminal proceedings for a crime or misdemeanor are pending in Switzerland are also entered in the criminal record, but not in the extract for private individuals.
A distinction must be made between the authorities that have the right to access the VOSTRA criminal record online (A) authorities who may request an extract of personal data relating to a judgment, or even data concerning ongoing proceedings (B) and finally the other authorities (C).
A. Authorities with online access to criminal records
The authorities that can directly access the criminal record online or request extracts from it are, among others, the following (Art. 367 para. 2 StGB)
- the Federal Office of Justice;
- the prosecution authorities;
- military justice authorities;
- Sentence enforcement authorities;
- the coordination services of the cantons;
- the Public Ministry of the Confederation;
- the Federal Office of Police, within the framework of criminal investigations;
- the Defense Group;
- the State Secretariat for Migration;
- the cantonal foreign police authorities;
- the cantonal road traffic authorities;
- the federal authorities who carry out security checks on persons referred to in Art. 2, para. 2, letter. a, of the federal law of March 21, 1997, instituting measures to maintain internal security;
the Federal Office for Civilian Service;
- the cantonal services responsible for the exclusion of the civil protection service;
- Witness Protection Service, pursuant to the federal Extraordinary Witness Protection Act of December 23, 2011, for the performance of its duties;
- the Confederation’s intelligence service (SRC);
B. Authorities that may request an extract of personal data relating to a judgment
The authorities that can request extracts from judgments include the following (Art. 22 O-VOSTRA)
- the administrative authorities of the Confederation and the cantons that issue criminal decisions under federal law;
- the FOJ’s department responsible for international legal assistance;
- cantonal and municipal guardianship authorities;
- the cantonal authorities responsible for deprivation of liberty for assistance purposes;
- the cantonal authorities responsible for carrying out security checks on individuals;
- the federal agency responsible for the protection of persons in accordance with Art. 22, para. 1 SIMA;
- the Federal Audit Oversight Authority;
C. Other authorities
All other authorities can only obtain information registered in VOSTRA indirectly, i.e. by asking the persons concerned to produce an extract for private individuals. Of course, the persons concerned will be free to decide whether and to whom they will communicate the extract (landlord, employer, bank, etc.).