At the end of August this year, the Bosnian Data Protection Agency (“Agency”) made available to the public a decision rendered on 24 April 2017, which sheds light on two important issues concerning the so-called criminal background checks. The decision makes clear that, under Bosnian law, an employer may not lawfully require a job applicant or current employee to disclose his (non)conviction for a criminal offence, and that employer is not entitled to obtain from the competent authorities the person’s certificate of (non)conviction.
Criminal background checks are a subset of background checks of job applicants and employees. When employers hire new staff or assign those already employed to sensitive projects, employers want to be reasonably confident that the candidates, or as the case may be, those who are already employed, have the required competence and experience. In some instances, the potential criminal history, indebtedness, or regularity of tax payments, and other circumstances may affect performance of the person’s tasks. However, obtaining and using the information on the person’s suitability for the particular position may violate the right to privacy and the right to protection of personal data. The employers therefore face the question of where to draw a line between permissible and impermissible checks.
In the case at hand, a public enterprise in Mostar, in the Federation of Bosnia and Herzegovina (one of Bosnia’s two constituent entities, the other being Republika Srpska) required from the applicants for a position in the management board to submit, among other documents, a certificate of non-conviction for criminal offence. A job applicant who did not submit the certificate was disqualified and hence lodged a complaint with the Agency.
The Agency had to determine whether the company had a legal basis to request from the applicant to deliver a certificate of non-conviction for criminal offence. In answering in the negative, the Agency relied on a provision in the Criminal Procedure Code of the Federation of Bosnia and Herzegovina, to the effect that “no one has the right to ask citizens to provide proof of their conviction or lack thereof” (Article 227, para. 4).
The Criminal Procedure Code also prescribes that the criminal records data, based on a reasoned request, may be given to the state agencies if certain security measures or legal consequences of the conviction still apply (Article 227, para. 2). Since the public enterprise (i.e. the employer) is not a state agency, the Ministry of Interior may not furnish the job applicant’s history of criminal conviction.
It results from the decision of the Agency that privately owned companies, entrepreneurs, or public enterprises like the one in the particular case may neither demand from job applicants to submit their certificates of non-conviction nor obtain a history of criminal convictions from the competent authorities. These categories of employers may arguably ask from a job applicant or an employee to sign a declaration of non-conviction. The scope of data included in the declaration would have to be proportionate to the purpose of conducting background checks, so the employer would not be entitled to require from the job applicants to declare their non-conviction for criminal offences which are not directly related to the positions they apply for.
In Serbia and Montenegro, the regulation of criminal background checks is similar, but not identical, to that in Bosnia. The criminal codes in both countries prescribe that no one can ask a citizen to provide proof of his criminal conviction or of the absence of such conviction. On the other hand, requiring that the person sign a declaration of non-conviction, although infrequently tested in practice, seems to be a permissible method of finding out about the criminal history.
Unlike the rules in Bosnia and Herzegovina, Serbian and Montenegrin laws allow the companies – and not only to the state agencies – to obtain from the competent authorities certificates of (non)conviction of a job applicant or an employee, provided that the company has a “justified interest based on law” and that convictions are unspent. However, the phrase “justified interest based on law” leaves a room for different interpretations. It is not clear whether such interest must, in a restrictive reading of the phrase, be strictly prescribed by a statute or it suffices, in a permissive reading, that the interest is not contrary to any law.