In recent days, we have been able to read reports about a complaint filed against the Director General of Legal Security and Public Faith. The plaintiff association, known for its political and judicial activism, accuses an alleged malfeasance in the Instruction issued for the application of Law 20/2022, Democracy Memory. I consider it appropriate to present a few brief observations to properly contextualize this issue.
1. The Relevance of the Director General’s Instructions
The instructions issued by the Director General of Legal Security and Public Faith, formerly known as the Director General of the Registries and Notaries, hold enormous importance in the registry field. Their purpose is to establish clear and homogeneous interpretive criteria that allow registrars and those responsible for registries to apply laws and regulations uniformly across the territory, thereby guaranteeing legal certainty and equal treatment of citizens.
Moreover, these instructions have traditionally enjoyed widely recognized technical prestige, the fruit of a long-standing commitment to legal rigor and public service.
2. Purpose of the Instruction
In this particular case, the Instruction aims to provide clear guidelines to the Civil Registry officers — lawyers within the Justice Administration in the General Offices and diplomatic staff in the Consular Offices — for the application of the eighth additional provision of Law 20/2022.
“The plaintiff association, known for its political and judicial activism, alleges an alleged malfeasance”
Dicho dispositivo reconoce the right to option for Spanish nationality, among other scenarios, to those born outside Spain to a father, mother, grandfather or grandmother who were originally Spanish and who had lost or renounced Spanish nationality as a result of exile motivated by political, ideological, religious, or belief-based reasons, or for reasons related to sexual orientation or gender identity.
Thus, the instruction fulfills an essential function: providing legal certainty both to the Civil Registry officers and to the citizens who exercise their rights, guaranteeing uniform application of the law.
3. Interpretation in Accordance with the Law and Its Aims
The Instruction of October 25, 2022 contains a detailed analysis of the eighth additional provision, approves the models and forms necessary for its application and establishes certain interpretive criteria, taking into account historical background, regulatory context and the aims pursued by Law 20/2022.
“The instruction aims to provide legal certainty to both Civil Registry officers and to citizens who exercise their rights”
It does nothing more than apply the hermeneutical criteria set out in Article 3 of the Civil Code, according to which laws must be interpreted by considering the literal sense of their wording, the context, the historical and legislative background, and the social reality of the time in which they are to be applied, fundamentally weighing their spirit and purpose. All of this without prejudice to other slightly different interpretations that were also possible, as is evident.
4. Verification of Exile Status
In relation to establishing exile status, the Instruction lists various means of evidence that may be provided, including:
- Documentation proving that one was a beneficiary of pensions granted by the Spanish Administration to exiles.
- Documentation issued by the United Nations International Office of Refugees or by the refugee offices of host countries.
- Certifications or reports issued by political parties, unions or other entities and public or private institutions duly recognized by the Spanish authorities or by those of the host country, related to exile or the defense and protection of exiled persons.
It is worth emphasizing that this enumeration is merely exemplary. The status of exile can be proven by any other valid and sufficient means of evidence.
5. The Presumption of Exile Status
This is, probably, the aspect that has generated the most controversy and the one that underpins the filed complaint.
The Instruction establishes that the status of exile will be presumed for Spaniards who left Spain between July 18, 1936 and December 31, 1955. In such cases, it will only be necessary to prove the departure from the national territory using one of the documents provided. Conversely, those who left Spain between January 1, 1956 and December 28, 1978 must expressly prove their exile status.
The setting of this timeframe has an evident purpose: to provide legal certainty to those responsible for applying the eighth additional provision.
It should not be overlooked that the law does not expressly impose a general obligation to prove exile status in all cases nor does it specify how that proof should be made. The instruction seeks precisely to resolve this interpretive issue.
“Without this presumption, a significant portion of potential beneficiaries would face a true ‘probatio diabolica’
Without this presumption, a significant portion of potential beneficiaries would confront a true probatio diabolica, i.e., the practical impossibility of proving, decades later, personal and family circumstances linked to exile. This would largely render moot the purpose pursued by the legislator.
The reasoning is not foreign to other areas of law. When a person flees from war or armed conflict, international protection rules rely on the existence of certain objective circumstances that explain the displacement. No individual proof is required from every affected person that the war was the principal cause of their departure from the country.
Consider the case of thousands of Ukrainian citizens who left their country after the Russian invasion. No one has generally questioned that the armed conflict was the cause of their displacement, nor has anyone been required to prove individually that they left Ukraine due to war-related reasons.
6. The Supposed Alteration of the Electoral Register
It has also been argued that the instruction would indirectly seek to alter the electoral register.
However, once the instruction has been issued, the Director General lacks any capacity to determine who will exercise the right of option recognized by the law. The decision rests exclusively with each individual.
Similarly, neither the Director General nor the Government has any mechanism to influence how people who subsequently acquire Spanish citizenship vote in electoral processes.
Moreover, experience shows that electoral participation of residents abroad registered in the CERA has traditionally been limited, and their voting behavior does not reveal a clear political benefit for any particular option.
“It is hard to maintain that an interpretive administrative instruction aims to alter the outcome of future electoral processes”
For this reason, it is difficult to claim that an interpretive administrative instruction seeks to alter the outcome of future electoral processes. Rather, this type of accusation appears to respond to a logic of institutional delegitimization and a continual questioning of the actions of public authorities.
It should be noted that the application of this rule ultimately falls to the Civil Registry officers, who carry out their duties with full technical independence, responsibility, and professionalism, ensuring at all times respect for the current law and the rights of citizens.
