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A clash between the legitimate interests of employers to protect their property and integrity and the legitimate interest of employees to protect their privacy and keep the past in the past gives rise to friction between the two.
The broad philosophical question of whether a criminal can be rehabilitated is here reduced to the practicalities: does the employer have the right to know whether their employee or prospective employee had been convicted, and how, and whether the employee who had been convicted of a crime and who had served their sentence has the right to privacy with regards to such a conviction.
Under Serbian law, a court may ban a person convicted of a crime from performing certain other duties or obtaining certain rights. These include, but are by no means limited to a ban on entering employment in a certain capacity. For instance, a medical doctor convicted of a crime related to their unethical practices may be banned from working in the medical profession.
It stands to reason, then, that an employer would have the right to know whether the employee is banned for performing the work they employ them for.
Under the law, convictions are kept on record but are not a matter of public record. Rather, they constitute personal data.
They may be shared with persons other than the convicted persons themselves upon request if grounds to do so exist.
In the above example, a clinic considering employing a doctor might have a legitimate interest in requesting a certificate of their clean record provided they submit a reasoned request to the competent authority.
However, the Criminal Code expressly forbids anyone to ask a Serbian citizen to submit their criminal (and certificates of good conduct or clear record) for review. Furthermore, if a conviction had been struck from the records, it may not be issued to anyone, including the person convicted.
The Ministry of the Interior oversees some of the penal records. Competent courts (courts of seat or residence of a person) oversee others.
A court will only keep records of convictions, while the Ministry of the Interior oversees complete analytical data, including criminal history.
There are instances of employers requesting that candidate employees submit extracts from their own records, and such instances are causes of much controversy.
An employer is within their rights to stipulate the terms of employment, including prior criminal record. However, an employer must not ask a candidate to provide proof of clean record themselves, but must instead address the competent authority with prior informed consent of the candidate employee, counting on them to recognize the legitimate interest of the employer and act accordingly. If the competent authority is of the opinion that legitimate interest does not exist, or that conditions do not exist which justify such intrusion into
However, since extracts of records may always be issued (at a cost) to those concerned, many employers ask candidate employees to provide this particular piece of evidence themselves. While this is expressly banned, no criminal sanction is stipulated in such cases.
The courts and the police issue certificates from their own records, and these may be obtained either electronically through the eGovernment service, or in hard copy from the institutions themselves.
