Use of Expunged Criminal Record Data in a New Criminal Proceeding

Facts

The SCC was seized of a criminal appeal against a decision of the CRRA of the LCJ of the Republic and Canton of Geneva. This decision upheld the order of the Public Prosecutor's Office to include in the criminal file of case P_22 certain documents from files P_90 and P_91, the judgments of which no longer appeared on the criminal record of the accused A. due to the passage of time. A. and B. are the unmarried parents of two children. Various decisions related to custody rights have been rendered by the civil authorities. As of November 15, 2022, A. appeared on the criminal record for a conviction in 2012 for brawling and property damage. Subsequently, B. filed two criminal complaints against A., accusing him of refusing to return the children to her and of taking them to an unknown destination. A. was placed under investigation for child abduction, sequestration, and disobedience to an authority's decision. The Public Prosecutor's Office then ordered the inclusion in file P_22 of documents from proceedings P_90 and P_91, including judgments and a psychiatric expert report concerning A., although these convictions no longer appeared on his criminal record.

Considerations

The SCC examined the admissibility of the criminal appeal filed by A. against the decision of the CRRA. It considered that this decision, although of an incidental nature, could cause irreparable harm to the appellant due to the potential infringement of his right to be forgotten. Indeed, the inclusion in the current criminal file of documents from completed criminal proceedings, the judgments of which no longer appear on his criminal record, may constitute such an infringement, which no subsequent decision would be able to remedy. On the merits, the SCC recalled that the former law, in force until January 22, 2023, provided for a prohibition on the use of expunged criminal record data, except for medical experts. The new law, which entered into force on January 23, 2023, is less restrictive in this regard, reflecting the legislator's intention to reduce the scope of the…