I

Law 26/2015 of 28 July, amending the system of protection for children and adolescents, provides in its final disposition that the government, on a proposal from the Ministry of Justice, will dictate within the six months since the publication of the said law, the appropriate regulatory provisions relating to the organisation of the Central Register of Sex Offenders in the Central Register of Penados and in the Central Register of Sentences of Criminal responsibility of the Minors, integrating into the system of records of support to the Administration of Justice.

The inspiring principle to which the Central Registry of Sexual Offenders responds is structured on the basis of the fundamental right of the child to be a priority, as proclaimed by the Organic Law 8/2015, of 22 July, to modify the system of protection for children and adolescents. In this context, not only are the commitments made by Spain within the European Union and the Council of Europe, but it also allows countries in our environment to be equated in the extent of the protection they provide to the European Union. children against sexual exploitation and abuse.

Based on these principles, the royal decree regulates the organization and content of the Central Registry of Sex Offenders, as well as the procedures for registration, access, cancellation, rectification and certification of the information on the content, setting up an effective instrument for the purposes pursued.

First, the prevention and protection of minors against crime of a sexual nature is sought, in accordance with national and supranational norms, and in line with the registration systems of other countries of our environment.

In the second term, a system is developed to know if those who intend to access and exercise professions, trades and activities involving habitual contact with minors lack convictions, both in Spain and in other countries. countries, for the crimes referred to in this royal decree.

And last, it seeks to facilitate the investigation and identification of the perpetrators of crimes against sexual freedom and compensation, as well as trafficking in human beings for the purpose of sexual exploitation, including the pornography, regardless of the age of the victim.

In this way, the supranational legislation, in particular the Council of Europe Convention for the Protection of Children against Sexual Exploitation and Abuse, of 25 October 2007, is incorporated into our legislation-in future Lanzarote Convention-meeting the commitment made to contribute effectively to the common objective of protecting children against sexual exploitation and abuse; Directive 2011 /93/EU of the European Parliament and of the Council of 13 December 2011, on the fight against sexual abuse and sexual exploitation of minors and the child pornography; Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 laying down minimum rules on the rights, support and protection of victims of crime and replacing the Council Framework Decision 2001 /220/JHA, following this royal decree, the line already initiated under Law 4/2015 of 27 April of the Staff Regulations of the Victim; and Framework Decision 2002 /629/JHA of the Council of the European Union of 19 July 2002 on the fight against trafficking in human beings.

II

Moreover, in accordance with Article 37 of the aforementioned Lanzarote Convention, the incorporation of the data relating to the genetic identity and profile (DNA) of the data relating to the genetic identity and profile of the persons convicted of the crimes being committed, along with the rest of the criminal information recorded in the Central Register of Penados as well as in the Central Register of Sentences of Criminal Responsibility of the Minors.

To do this, the Ministry of Interior, as it is in charge of the National DNA Database, will be the interlocutor to incorporate the code identifier of the genetic profile of the condemned person, as well as to communicate the cancellation of the registration of the Central Registry of Sex Offenders for the purpose of the corresponding cancellation of the genetic profile provided for in the Organic Law 10/2007, of 8 October, regulating the police database on identifiers obtained from from DNA.

In the framework of the necessary coordination with the public administrations competent for the protection of minors, it is established that the support in which the data contained in the Register must be stored must allow its interoperability. This is intended to enable people convicted of these crimes to be monitored and monitored, not only in Spain but also in other countries, as well as to cooperate with the competent authorities of the Member States of the European Union and the Council of Europe, to facilitate the exchange of information in this field.

According to the legal forecast contained in Law 26/2015 of 28 July, of which it brings cause the present royal decree, for the fulfillment of the aims pursued by the same and previously exposed and having in all This is the case with the highest interest of the child whose sexual freedom and indemnity is to be protected, the direct access to the Register will be limited, in accordance with the provisions of Royal Decree 95/2009, of 6 February, for which the System of administrative records in support of the Administration of Justice, the judicial bodies for the purposes of their use in the procedures and actions of their respective powers; to the Prosecutor's Office when it is necessary for the fulfilment of the functions attributed to it by the Law of Criminal Procedure, the Law of the Organic Law 5/2000, On 12 January, regulating the criminal liability of minors, and Law 50/1981, of 30 December, regulating the Organic Statute of the Prosecutor's Office; and the judicial police in the field of their competences for the development of actions that are entrusted to it in relation to the pursuit and monitoring of conduct registered in this Register, in accordance with the provisions of article 549.1 of the Organic Law of the Judiciary, the Law of Criminal Procedure and the Organic Law 5/2000, of January 12. In any event, access must be linked to the purposes and objectives pursued by the Registry.

On the other hand, it is possible to obtain the registered data, even without the need to have the consent of the person concerned, in the case of the judicial bodies or that the certification is obtained by the entities public protection of competent minors territorially.

To complete the protection provided by the Central Registry of Sexual Offenders to minors and to avoid the usual criminal repetition of the types of sexual offences, Article 13 (5) of the Law Organic 1/1996, of 15 January, of Legal Protection of the Minor, partial modification of the Civil Code and the Law of Civil Procedure, in the wording given by Law 26/2015, of July 28, requires as a requirement for the access and exercise of the professions, trades and activities involving habitual contact with minors, the failure to be condemned by The Court of Justice held that the Court of Justice held that the Court of First Instance held that the Court of Justice held that the Court of First Instance held that the Court of First Instance held that the Court of First Instance held a In line with the precise legal requirement, this royal decree contains a system of certification of this type of inscriptions, at the request of the interested party or of the public administrations with the consent of the interested party or his representative.

The regime of cancellation of the registration of the Central Register of Sex Offenders is established according to the age of the victim and the sentenced person. If the victim is older, the cancellation is matched with that of the criminal record, without extending the validity of the registration beyond the effects that the Penal Code establishes in the light of the seriousness of the crime. committed.

On the contrary, if the victim were of a minor status, it is considered appropriate to follow a different regime in relation to the time limits established for the cancellation of criminal records and to extend the duration of the registration up to 30 years, taking into account the specific function and purpose of the inscriptions of this register, which are not constituted as a penalty but as a measure for the protection of childhood and adolescence. This does not preclude the principles of proportionality, necessity or reinsertion as it does not prevent criminal records from being cancelled within the legally established time limit, without such registration being considered for the purpose of reoffending.

However, if the sentenced person was a minor at the time of the commission of the crime, the above will not be applicable, but will be the deadline for the cancellation of the criminal records in order to enable the reinsertion of the minor offenders and avoid their stigmatization.

On the other hand, by providing for the registration of convictions handed down by foreign courts, it is generally established, in respect of the same, that the cancellation will be conditional on the prior communication of the State of conviction, as set out in art.  5.2 of the Organic Law 7/2014 of 12 November on the exchange of information on criminal records and the consideration of criminal judgments in the European Union in respect of convictions handed down in another Member State of the Union European.

III

Throughout the regulation of this royal decree, the protection of the interest of the child as the last end of the rule is late, thus responding to the legislator, in line with the case law of the Constitutional Court. In Case 185/2012 of 17 October 2012, the constitutional mandate received directly from Article 39 of the Spanish Constitution, which entrusts to the public authorities the obligation to ensure the integral protection of children of conformity with International Conventions.

Following this maximum, it should be noted that the Convention on the Rights of the Child is part of a fundamental principle: the interest of the child must be considered superior to the other interests at stake and its enforceability is not left to the criterion of the States. The rotundity of this postulate is derived from the starting position of minors, who have less chance than adults to forcefully defend their own interests.

The transcendence of this principle leads to Article 2 of Organic Law 8/2015 of 22 July declaring that all minors have the right to be valued and considered as paramount in all actions and to their higher interest. The Commission has also been responsible for the implementation of the programme. In the application of this law and other rules affecting it, as well as in measures concerning minors who adopt the institutions, public or private, the courts, or legislative bodies, shall take precedence over the interests of the on any other legitimate interest that may be present.

Directive 2012/29/EU of 25 October 2012 laying down minimum rules on the rights, support and protection of victims of crime and replacing Council Framework Decision 2001 /220/JHA, on the rights of victims has resulted in the adoption of Law 4/2015 of 27 April, Article 19 of which, when referring to the right of victims, lays down the obligation for the authorities and officials responsible for the investigation, prosecution and prosecution of the offences, to take the necessary measures for their protection, giving special importance to the Prosecutor's Office when the victim is the child.

The determination of the best interests of the child in each case should be based on a series of accepted criteria and values universally recognized by the legislator, which must be taken into account and weighted according to various elements and circumstances of the case, and this has been done in the present royal decree, whose primary purpose is none other than the creation of an effective instrument to respond to the social clamour to protect the interest of minors, potential the victims of these crimes, particularly reproachable and which affect in a fundamental way the normal development of the children's personality.

This royal decree has been reported by the General Council of the Judiciary, the Fiscal Council and the Spanish Data Protection Agency.

In its virtue, on the proposal of the Minister of Justice, with the prior approval of the Minister of Finance and Public Administrations, according to the State Council and after deliberation by the Council of Ministers at its meeting of the day 11 December 2015,

DISPONGO:

Article 1. Object and scope.

1. This royal decree aims to create and regulate the organization and functioning of the Central Registry of Sex Offenders provided for in Law 26/2015 of 28 July, amending the system of protection for children and adolescents, as well as as the system of registration, consultation, certification and cancellation of the data contained therein.

2. Its sphere of activity extends to the entire national territory, without prejudice to the provisions of the international treaties signed in this field by Spain.

Article 2. Right of application.

In everything that is not specifically provided for in this royal decree, the Royal Decree 95/2009 of 6 February, which regulates the System of Administrative Records of Support to the Administration of Justice.

Article 3. Nature and purpose.

1. The Central Register of Sex Offenders constitutes a system of information, of a non-public and gratuitous nature, relating to the identity, genetic profile, penalties and security measures imposed on those persons convicted in a firm sentence. any offence against sexual freedom and compensation or trafficking in human beings for the purposes of sexual exploitation, including pornography, regulated in the Organic Law 10/1995 of 23 November of the Criminal Code, irrespective of the age of the victim. This information will refer to convictions handed down in both Spain and other countries, in particular the Member States of the European Union and the Council of Europe.

2. The purpose of the Register is to contribute to the protection of minors against sexual exploitation and abuse, regardless of who is the perpetrator of the crime, by establishing a prevention mechanism that allows to know who seek the access and exercise of professions, trades and activities involving habitual contact with minors, without or without criminal convictions for the offences referred to in the previous paragraph.

The Registry also aims to facilitate the investigation and prosecution of the crimes referred to in this Royal Decree in order to protect the underage victims of sexual crime, by introducing effective measures contributing to the identification of their authors and cooperation with judicial and police authorities in other countries, in particular with the Member States of the European Union and the Council of Europe.

Article 4. Organization.

1. The Central Registry of Sex Offenders is integrated into the system of administrative records of support to the Administration of Justice regulated in Royal Decree 95/2009, of February 6. Its management corresponds to the Secretariat of State of Justice through the General Secretariat of the Administration of Justice.

2. The registry officer shall be responsible for his control, organisation and management; he shall take the necessary measures to ensure the agility in the transmission of the information regulated in the following article, as well as the veracity, integrity, confidentiality and accessibility of the data contained in the entries. It shall also ensure, with full legal effectiveness, the authenticity and integrity of the certified data and shall promote compliance with the provisions relating to cancellations of entries.

Article 5. Information contained in the inscriptions.

1. The Central Registry of Sexual Offenders shall contain all the criminal information that is recorded in the Central Register of Penados as well as in the Central Register of Criminal Liability Sentences of the Minors in respect of those who have been sentenced in a firm sentence for any offence against sexual freedom and compensation, as well as for trafficking in human beings for the purpose of sexual exploitation, including pornography, regardless of the age of the victim, in the terms provided for in Articles 8 and 9 of Royal Decree 95/2009 of 6 February 2009. In addition, the code identifier of the genetic profile (DNA) of the sentenced person must be stated when agreed by the court.

The victim's identity data will not be accessed by the Registry, except, if applicable, its status as a minor.

2. The registration, access, rectification, cancellation and certification of the data, as well as the security measures of the information contained in the Register will be governed by the provisions of Royal Decree 95/2009, of February 6, with the Specialties established in this royal decree.

Article 6. Communication between records.

1. The Central Register of Penados and the Central Register of Criminal Responsibility of the Minors shall automatically refer to the Central Register of Sex Offenders, information regarding penalties and security measures imposed in the Central Register of Criminal Offenders. a final statement of the offences referred to in the previous Article, at the same time as their registration in the respective registers, as well as any subsequent changes, including the cancellation of the criminal antecedent.

2. The transmission of data to the Central Registry of Sex Offenders will be carried out through the procedures regulated in this royal decree and in the administrative provisions that develop it.

Article 7. Information support.

The data shall be stored on appropriate supports for maintenance and expression, with legal guarantee and in an undoubted manner, of all the information to be recorded in the Register, ensuring its availability, access, integrity, authenticity, confidentiality, conservation and interoperability.

Article 8. Access to the information contained in the inscriptions.

1. The Ministry of Justice shall authorize for the satisfaction of the purposes and objectives pursued by the Central Registry of Sexual Offenders, establishing appropriate security measures, direct access to the information contained in the Record:

(a) To the judges and courts of any court order, through the staff of each court or tribunal authorized by the Letters of Justice Administration, including the data of the cancelled registrations, for the purposes of their use in the procedures and actions of those they are aware of in the field of their respective competences.

b) To the Fiscal Ministry, through the personnel of each organ or tax office authorized by the Chief Prosecutor, when this is necessary for the performance of their duties legally attributed.

(c) To the judicial police, through the authorised officials who perform these duties, as long as necessary for the exercise of the powers provided for in Article 549.  1 of the Organic Law of the Judiciary, in relation to the prevention, persecution and monitoring of the conduct recorded in this Register.

2. The Ministry of Justice shall enable the authorised officials responsible for the National DNA Database of the Ministry of the Interior to be able to incorporate the code identifier of the genetic profile provided for in Article 5.

3. In any event, as provided for in Chapter IV of Royal Decree 95/2009 of 6 February 2009, the identity of the persons accessing the Central Register of Sex Offenders and of the data consulted, corresponding to the In order to verify that the accesses occurred correspond to the purposes provided for in this royal decree, the registry is responsible for the Registry.

Article 9. Certification of the data entered.

1. The judicial bodies, in relation to the causes which they process and for their union to the procedure, may obtain directly the data contained in the Register and bring them to the judicial procedure by means of diligence of constancy of the Administration of Justice, with full legal validity, without the need to apply for certification to the person responsible for the registration.

2. The person in charge of the Register, provided that the information is not reserved for Judges and Courts, and after the consent of the person concerned or his representative, shall inform the data relating to the same contents in the Central Register of Offenders Sexual, at the request of any organ of the Public Administrations before which a procedure is processed to access professions, trades or activities that involve a habitual contact with minors, as well as for their exercise. In the absence of such consent, the certificate shall be issued at the request of the person concerned in accordance with the terms set out in

following paragraph.

3. At the request of the holder concerned, data relating to his/her person may be directly certified and shall be certified as negative for persons who are not registered. In the case of minors or persons with a judicially modified capacity, the application must, in any case, be made by its legal representative. The positive certification shall contain the transcription of the registered data, as they do in the Register at the time of their issue, excluding the inscriptions which, according to a rule with a range of law, are at the exclusive disposal of Judges and Courts.

In any case, citizens of foreign origin or who have another nationality, must also provide negative certification of criminal convictions issued by the authorities of their country of origin or where they are national. in respect of the offences referred to in Article 3 (1

.

4. The Public Entities for the protection of competent minors territorially may request, by means of telematic, the person in charge of the Central Register of Sexual Offenders the necessary data of the registered person to assess the situation of the protection of a child with respect to who is his or her parent, guardian, keeper or welcoming person, even without the consent of the latter and provided that the information is not reserved for Judges and Courts. Each of these Public Entities shall identify the body responsible for the control of that data and inform the Registry Officer to ensure its confidentiality.

5. Also, at the request of foreign judicial or police authorities that require it in the framework of a judicial or police investigation, or the prevention of the crime, the person in charge of the Registry will communicate the information that will be included in the the consent of the person concerned, in the forms and cases to be determined by the Community rules and international treaties on mutual assistance in criminal matters signed by Spain.

6. In any case, the application, issuance and obtaining of the certificates shall be made preferably by electronic means, in accordance with the provisions of Law 11/2007, of June 22, of electronic access of the citizens to the services public.

Article 10. Cancellation of data relating to penalties and security measures imposed on firm judgment.

1. The entries contained in the Central Registry of Sexual Offenders shall be cancelled ex officio, at the request of the holder of the data or his legal representative if he is a minor or person with the judicial modified capacity, or communication from the judicial body, in the following cases:

(a) Where the victim is of age or if the sentenced person has been for acts committed during his or her age, the cancellation shall be governed by the provisions of Chapter VI of Royal Decree 95/2009 of 6 February 2009, the function of the inscriptions having their origin in the Central Register of Penados or in the Central Register of Sentences of Criminal Responsibility of the Minors.

(b) Where the victim is a minor and the oldest person of age, the cancellation shall be made after the period of 30 years has elapsed, from the day on which the penalty is deemed to be fulfilled in accordance with the Article 136 of the Criminal Code without having redelved. In this case, the cancellation of the criminal records that consist of the registration of the Central Register of Penados from which the one has its origin will not entail the cancellation of this information. Moreover, such information may not, in itself, serve as evidence to verify the recidivism.

2. The cancellation of entries derived from judgments handed down by foreign judges or courts which are found in the Central Register of Sex Offenders shall require prior communication in that regard by the State of conviction.

3. Once the criminal records of those registered in the Central Register of Sex Offenders have been cancelled and in respect of the causes in which the code identifier of the genetic profile of the sentenced person, the person in charge of the Registration shall communicate such circumstance to the National DNA Database of the Ministry of the Interior, for the purposes provided for in Article 9 of the Organic Law 10/2007, of 8 October, regulating the police database on identifiers obtained from the DNA.

Article 11. Compilation of statistics.

The General Administration of the State and the autonomous communities with powers in the field of justice, within the framework of the Judicial Transparency Plan, will be able to compile statistics on the data contained in the Central Register of Sex offenders, avoiding any personal reference in the information and taking into account the provisions of the Organic Law 15/1999, of December 13, of Protection of Personal Data, and its complementary provisions.

Additional disposition first. Incorporation of data relating to penalties and security measures prior to the entry into force of this royal decree.

Data on penalties and security measures for crimes against sexual freedom and compensation, as well as for trafficking in human beings for the purpose of sexual exploitation, including pornography, which are included in the The Central Register of Penados and the Central Register of Criminal Responsibility of the Minors prior to the entry into force of this royal decree, will be automatically referred to the Central Registry of Sex Offenders in the status in which they are located.

Additional provision second. Collaboration between public administrations and other institutions.

1. The Ministry of Justice shall cooperate with the public authorities and other institutions in order to facilitate the application of this royal decree during the exercise of the professions, trades and activities involving regular contact with (a) to this end, by establishing to this end the conventions which are necessary in those areas where the activity is carried out with minors.

2. Within six months of the entry into force of this royal decree, the Ministry of Justice shall take the necessary measures, in collaboration with the Ministries of Education, Culture and Sport, Health, Social Services and Equality, and The Committee on Employment and Social Security and, where appropriate, will promote the necessary regulatory adaptations to facilitate compliance with the prohibition laid down in Article 13 (5) of the Organic Law 1/1996 of 15 January 1996. Legal of the Minor, during the exercise of the professions, trades and activities involving usual contact with minors.

Final disposition first. Amendment of Royal Decree 95/2009 of 6 February, which regulates the System of Administrative Records of Support to the Administration of Justice.

Royal Decree 95/2009 of 6 February, which regulates the System of Administrative Records of Support to the Administration of Justice is amended as follows:

One. Article 1 (2) is worded as follows:

" 2. This System of Records shall be composed of the Central Register of Penados, the Central Register for the Protection of Victims of Domestic Violence and Gender, the Central Register of Precautionary Measures, Requirements And Non-Firmes Sentences, the Central Register of Civil Rebels, the Register of Criminal Liability Sentences of the Minors and the Central Registry of Sex Offenders. "

Two. A point (f) is included in Article 2 (3) with the following wording:

" (f) Central Register of Sex Offenders: the registration of information relating to those convicted of a firm judicial sentence for crimes against sexual freedom and compensation, as well as for human beings for the purpose of sexual exploitation, including pornography, in accordance with Law 26/2015 of 28 July, amending the system of protection for children and adolescents. "

Final disposition second. Competence title.

This royal decree is issued under Article 149.1.5. of the Constitution which attributes exclusive competence to the State in matters of the Administration of Justice.

Final disposition third. Powers of development.

The Minister of Justice is authorized to adopt the administrative provisions and measures necessary for the development and execution of this royal decree.

Final disposition fourth. No increase in expenditure.

The measures taken in this royal decree cannot generate an increase, either of allocations, or of remuneration, or of other personnel costs for the public sector.

Final disposition fifth. Entry into force.

This royal decree will enter into force within two months of its publication in the "Official State Gazette".

Given in Madrid, December 11, 2015.

FELIPE R.

The Minister of Justice,

RAFAEL CATALA POLO