Spain’s correction of her “Historical Mistake and Injustice”: Spanish citizenship for the ‘sefardies’: An assessment
by Doğan Akman[1]
“No kale espalder los piezes mas ke la kolça”[2]
Sephardic proverb
“The past is never dead. It is not even past.”
William Faulkner
A. Introduction
La Ley 12/2015 en materia de concesión de la nacionalidad Española a los sefardies originarios de España enacted on June 11, 2015, received Royal Assent on June 24 and came into force and effect on October 1, 2015 (the “law “, “ legislation” “legislative scheme”).[3]
The objects of this paper are twofold; first, to set out the key provisions of the legislation read in tandem with the Instructions[4] issued on September 29, 2015(“Instructions”) by the General Directorate of the Registries and Notaries (“DGRN”)[5] and, second, to identify and analyze the significant issues raised by a fair number of these provisions and by the legislation as a whole.[6]
Clearly, the legislation does not stand on its own provisions as these are not exhaustive of all the matters affecting the acquisition of nationality. In some instances, in order to obtain a better understanding of the legislative scheme, some of its provisions need to be read and interpreted in conjunction with those of other legislation. Due to the constraints of space, this paper focuses primarily on the provisions of the legislation that stand on their own, save where the rationale for one particular provision are meant to be read together with some of the Spanish Constitution.[7]
B. Legislative Objectives
I. The government’s publicly stated objectives
According to the government, the objectives of the legislation are four-fold:
First, to admit that Spain made a “historical mistake” by “unjustly” expelling the ancestors of a sub-group of what is now commonly referred to the Sephardic Diaspora (“Diaspora”), who resided on the Spanish Iberian Peninsula (“Sefardies”) and were expelled pursuant to the Alhambra Decree of March 30, 1492 (“Edict of Expulsion”, “Edict”) upon their refusal to convert to Catholicism.
Second, to repair, to make amends for and to correct this historical mistake and injustice.
Third, to state what the government expects to achieve with this legislation. These expectations are set out in the concluding paragraph of the Preamble which reads: "In final analysis, this law is expected [a] to be the meeting point of today's Spaniards with the descendants of those that were unjustly expelled in 1492; [b] to prove the common determination to build together a new space of co-existence and harmony against the intolerance of the past ages, and [c] through this common determination, to re-open forever for the communities expelled from Spain, the doors of their ancient country.”[8]
Fourth, to provide the means by which these expectations will be met; namely (a) to make “restitution” to those among the descendants (the “applicant(s)”) who are able to satisfy both the evidentiary and procedural requirements set out in the law, by establishing their entitlement to citizenship as a matter of right (as opposed to being subject to governmental discretion); (b) to broaden the descendants’ opportunities for acquiring the Spanish citizenship by repealing the prohibition against possession of dual nationality, and (c)to expedite the time frame within which their applications will be processed by prescribing legislative deadlines.
Laudable as these sentiments and objectives may appear, to call the abomination of the expulsions and the abominable conditions under which the expulsion occurred a mere “mistake” and a generic “injustice” exhibits neither a genuine appreciation of the true depths and scope of the inhumanity perpetrated by the two Spanish Crowns on the expelled Sephardic Jews nor a genuine empathy for their fate.
As a matter of fact, after reviewing the wording of the Preamble, the various pronouncements of Ministers and other dignitaries, one cannot help but tend to agree with the witty suggestion that under this legislative scheme the descendants are being rewarded more for preserving their Ladino, for their ancestor’s enduring love for Spain, and for disseminating Spanish language and culture than to correct the historical mistake cum injustice.[9]
The government’s failure to seize this perfect opportunity to apologize for coercing Jews to convert in order to remain in Spain and for the abominations perpetrated against the converted Jews by the Spanish Inquisition operating under Royal authority lends further credence to the feeling that the thoughts and sentiments expressed in the Preamble are more in the realm of poetic diplomacy than in that of genuine earthly regret, apology and equitable restitution.
Finally, I use the term “sub-group” of the Spanish Sephardic Diaspora because as a matter of historical record, between 1348 and 1945, Spain caused not one but nine Diasporas.[10]
A curious exclusion-The expulsion of Jews from Navarra
In 1492 the territory of the Kingdom of Navarra (“Navarre”) south of the Pyrenees was located on the Iberian Peninsula. In 1512, this territory was conquered by the Castilian-Aragonese army and annexed to Castile. It has since become one of the autonomous communities of Spain. The King of Navarre, under the insistent pressure of the Catholic Monarchs of Spain finally agreed to and in 1498 expelled the Jewish inhabitants of his Kingdom who refused to convert. By so doing he fulfilled the dream of the Catholic Monarchs to render the Spanish Iberian Peninsula Judenrein.
In fact, had the King had not done it, the Catholic Monarchs would have carried out the expulsion upon their conquest in order to preserve their ideal of maintaining the Spanish Iberian Peninsula in Catholic religious purity.
On these evidentiary premises, it is rather curious, indeed incomprehensible, that the Spanish government elected to keep the Sephardic Jews of Navarre out of the purview of the new legislation, particularly since the Catholic Monarchs were very much a party to the decision to expel. Besides, surely, through the conquest the Spanish Crowns assumed not only the legal rights of the former Kingdom but also its moral liabilities including that resulting for the same kind of injustice perpetrated in 1492 which the government now seeks to repair.
II. Two key unstated critical objectives of the legislation
These objectives are: first, to secure Sephardic commercial and industrial entrepreneurial expertise and capital investment,[11] that the government hopes will contribute to the re-invigoration of the Spanish economy on a sustained basis, and second, to improve Spanish society’s sagging international image for its views on and treatment of its ethnic and religious minorities.
1. First objective: To secure Sephardic commercial and industrial entrepreneurial expertise and capital investment.
(a) Historical perspective: Sefarditismo económico de las derechas and filosefardismo político
The legislative scheme of 2015 and the one it replaced are neither new nor original. Historically, Spain has been interested in attracting successful Sephardic entrepreneurs as far back as 1797 and successful Sephardic Ottoman entrepreneurs from 1881 onwards. This interest has been based on the Spanish economic policy to align the capital, entrepreneurship skills and successes of these entrepreneurs with the economic interests of Spain, and, if possible, to induce them to return to Spain and inject much needed economic stimuli to its moribund economy. Sagnier, borrowing the title of a news report published in 1930, describes this policy as Sefarditismo económico.[12]
Pedro Valera and later Primo de Rivera appropriated the concept and developed their own version subsumed under the rubric of Sefarditismo económico de las derechas.
In 1797, Valera, a man well ahead of his time in economic and financial matters, saw the potential benefits that could be secured from attracting rich Jews to settle in Spain. With the support of King Carlos III, he proposed to abolish the Edict of Expulsion and developed a plan to do that.[13] He failed to secure the support of the ruling class that seems to have been still wedded to the Edict of Expulsion, the doctrine of limpieza de sangre (purity of blood),[14] in an era when the mind-set generated by the Inquisition still lay claim to the thinking of this class.
Following on the footsteps of Valero, Primo de Rivera did not manage to do better with his 1924 Decree.[15]
The Decree was designed to pursue the economic policy of Valera in order to entice Ottoman Sephardic entrepreneurs to move back to Spain by affording them a further opportunity to secure Spanish consular protection and Spanish citizenship. The scheme did not produce the desired results, in part, due to the failure (a) to advertise and promote the Decree widely throughout the Empire instead of confining its diffusion to a limited number of districts, and (b) to attract sufficient interest in the merchant class targeted by the scheme. The scheme also failed because, save for rare possible exceptions, the merchants in question showed no interest in moving to Spain and instead focused on taking whatever benefits they could derive from the Decree.
While in those days, an explicit official admission of wrongdoing for the issuance of the Edict of Expulsion was unthinkable, and this remained so well after the re-establishment of the Monarchy in 1975, the gentle and caring tone of the pertinent excerpt of the Preamble of Rivera’s Decree goes some ways in that direction. It addressed the Sefardies as follows:” Ancient protected Spaniards and their descendants, and in general individuals belonging to families of Spanish origin who on some occasion were inscribed in Spanish Registers, and these Hispanic persons with deep sentiments of love for Spain who by reason of ignorance of the law or for whatever other reason foreign to their will to be Spanish, have not been able to attain our citizenship.”[16] (Italics mine)
General Franco in turn pursued the Sefarditismo económico de la derecha by combining it with Sefarditismo político and in some ways with filosefardismo, in so far as his public utterances and actions in keeping with these concepts would be tolerable to the deeply ingrained anti-Semitism of the fascist elite and of the Church. Franco`s exchange of notes with Greece (1935) and Egypt (1936) concerning the Sefardies in these countries to whom the government afforded consular protection must be also considered in the context of picking up the remaining pieces in the aftermath of the collapse of the Ottoman Empire and the establishment of Turkey in 1923.On the other hand, Franco considered the Decree of 29 December 1948 as an act of generosity which he hoped might help develop Spain’s disaffected relations with the newly established State of Israel.[17]
In the event one of the key objectives of the government underlying the legislation is indeed to re-introduce historical Sefarditismo económico to Spain, it is reasonable to expect that the government would set out to entice applicants who are mostly actual and potential members of entrepreneurial, industrial, financial class of applicants.
As noted further below, an indication of this intention can also be inferred from the fact that the existence of a commercial relationship with or business interests in Spain as well as ownership of property are considered to be indicia of (special) personal connections to Spain.
(b) Historical perspective: Sefarditismo económico de las derechas, filosefardismo de las derechas and filosefardismo
Ironically, the Sefarditismo económico de las derechas of generals Rivera and Franco also had a component of an implied filosefardismo de las derechas. Consequently, their right-wing economic pursuits with the Sefardies gained widespread support among the liberal political and intellectual elites because it converged with their filosefardismo movement[18] which emerged and blossomed between the last quarter of the 19th century and the Spanish civil war. The movement was revived after the civil war and gained further strength and upon the re-establishment of the Constitutional Monarchy. The movement championed the return of the Sefardies from the Diaspora on the belief that they would immeasurably enrich Spanish society, well beyond the spheres of economics and finance. Towards this end, the movement sought to have the government make amends for the Edict by repealing it.[19]
Filosefardismo focused on the Ottoman Sephardic Jews first germinated after Spain and the Ottoman Empire made permanent peace, established diplomatic relations and, early in the 19th century, Spanish diplomats, reporters, writers and travellers (sometimes one person performing all four roles) began to arrive in the Empire and suddenly encountered the descendants of the Sefardies who were expelled in 1492 or fled from the Iberian Peninsula between the 14th and the 18th centuries.
The diplomats and visitors were much surprised to hear the Sefardies speak Castilian Spanish (of a kind), express no hostility towards Spain for the expulsion of their forebears and instead express their love of and nostalgia for Spain. The Spaniards were further surprised that the Sefardies maintained their historical, cultural and religious practices, despite the passage of centuries.
These revelations of these encounters with the Ottoman Sefardies, unlike the details of the earlier encounter between the Spanish soldiers and the Moroccan Sephardic Jews that mostly did not make it past military reports, generated news reports, travel books and novels in Spain.
Knowing my people as I think I do, it is not unreasonable to suggest that the absence of hostility to and the expressions of love and nostalgia for Spain were in good measure self-induced; triggered, as they were by the problems of living in an Empire in severe distress, on the downward spiral, and their preoccupation with the fact that Ottoman Jewry, unlike Ottoman Christians, enjoyed none of the privileges of consular protection provided and citizenship granted to the latter by their patrons, the European powers. Consequently, the Sefardies were anxious to secure the same privileges from Spain. This they managed to do so thanks to the combined effect of sefarditismo económico and filosefardismo.
So it was that between 1809 and 1913, the Spanish government was the only Western government to provide, as a matter of policy, some of the Ottoman Sefardies with practical assistance, some with consular protection and a lesser number with citizenship.
This continued from the end of World War I to the Spanish Civil War; during World War II when Franco was compelled to act under the pressure of the Allies, (while at the same time playing sweet with Hitler) and on three further occasions after 1945.[20]
In effect, Sefarditismo económico de las derechas both incorporated and complemented the filosefardismo movement as the former came about when the Spaniards also discovered the entrepreneurial skills and commercial successes of the Ottoman Sephardic merchants and decided to make something of them for the benefit of Spain.[21]
2. The Second objective: To improve Spain`s international image with respect to the nation’s views and treatment of its ethnic and religious minorities
I submit that the government decided to move with the legislative project also in an attempt to address a pressing problem: namely, the need to improve Spain’s international image with respect to the nation’s views and treatment of its ethnic and religious minorities.[22]
I further submit that the second key unstated objective of this legislation is to engage in an international public relations exercise to counter the irrefutable facts confirmed by numerous authoritative surveys supplemented by a substantial body of writing[23] that xenophobia in Spain manifested by hostility to minorities, immigrants, the Roma, and anti-Semitism/Judeophobia in particular, are alive, well and thriving. It is expressed in the printed press including the large-circulation papers, in the electronic media, in public broadcasting, in public attitudes, behaviour and discourse. The expressions and discourse include the continued use of some traditional anti-Semitic expressions; popular participation in events that have anti-Semitic origins such as, for example, the continuing celebration of the commemorative Mass of the child saint of La Guardia who was the fictitious victim of a fictitious blood libel.
The existence and the continuing nature of the problem of anti-Semitism are also touched upon in the concluding paragraph of the Preamble and demonstrated by ample evidence.
In fairness to Spain, the government has so far taken two steps in a modest beginning to address anti-Semitism. The first one is in the nature of a deterrent based on the March 31, 2015 amendment of Articles 510 and 607 of the Spanish Criminal Code in order to provide a powerful tool for the prosecution of speeches of anti-Semitic hatred and other discriminatory motives.[24] The effectiveness of this initiative remains to be seen as these types of cases are not easy to prosecute and the Courts are loath to abrogate the freedom of speech--one of the fundamental features of western democratic societies where the freedom is protected under the Constitution or by other legislative enactments, as the case may be. At all events, it has been pointed out below, and experience shows, that this type of legislation cannot resolve the problems of ethnic, racial or religious stereotyping and hatred without a significant investment in educational tools designed to address and hopefully to counteract this type of hatred to some measure.
On the educational front, the Spanish Parliament has voted to make Holocaust awareness education mandatory in schools.
The extent to which the government and Parliament are prepared to build up and expand on these initial steps remains to be seen. In the meantime, anti-Semitic manifestations carry on.
At all events, the last paragraph of the Preamble that addresses the object of the legislation and the expectations that accompany it were cut short by the then Minister of Justice Albert Ruiz Gallardón who, on the occasion of the Cabinet’s approval of the first Bill of February 7, 2014, explained the decision to proceed with the Bill in terms of its “reflect[ing] the reality of Spanish society as an open, plural society where one’s identity is defined by the recognition of diversity.” Presumably to reinforce his point, the Minister further stated that, under [Article 1 of] the Bill, citizenship would be granted regardless of the ideology, religion or the beliefs of the applicants.[25] Assuming that the Minister has not misspoken, I very much fear that the provisos of “freedom of ideology and of belief” are potentially liable to make a cruel joke or two of all the solemn promises and pronouncements that preceded the Bill and are re-stated in some fashion in the Preambles of both Bills and of the legislation.
Curiously enough, for reasons which to the best of my knowledge have not been stated publicly, the proviso in Article 1 was omitted from the Bill of June 24, 2014 and does not appear in the legislation.
Gallardón's successor Rafael Catalá, carried on with the denial of the true state of affairs concerning xenophobia and in particular, anti-Semitism in Spain. Upon the enactment of the legislation he declared: “This law says a lot of about what we were in the past, what we are today and what we want to continue to be in the future--an open, diverse and tolerant society.”[26] (Italics mine) Later, during a visit to Jerusalem to promote the legislation and its virtues, Catalá further declared that the legislation “made Spain a better society.”[27]
The Spanish Ambassador to Israel, among others, characterized the legislation as “an act of reparation of an injustice” and “the recognition of the work of the ancestors of the Sefardies in Spain and of all their contributions to the Spanish culture during many centuries, as much to its history as to its culture and to the government of Spain;[and] of the value of having maintained the special link and the steadfastness during more than 500 years, despite the weight of having been expelled unjustly.”[28]
III. Advertising: The stage-managed launching of the new law
The legislation came into force on October 1,2015, together with the government`s stage-managed decision bearing the same date to approve the citizenship applications of no less than 4302 Sephardic Jews, whose applications had been in the works for up to ten years-- from 2005 to October 1, 2015.[29]
C. Statutory Provisions Governing the Access of the Sefardies to Citizenship Prior to October 1, 2015: The Two Routes to Citizenship
As the law stood prior to October 1, 2015, the descendants applied for Spanish citizenship by one of the following two routes, namely; by way of naturalization (carta de naturaleza) or a minimum of two years of residence in the country immediately prior to filing an application for citizenship, each route prescribing its own distinct set of evidentiary requirements. In this paper, I focus on the first route.
I. Obtaining citizenship by naturalization by Royal Decree –Article 21.1 of the Código Civil (Civil Code)[30]
1. The basic scheme
Prior to the new law, the Spanish Council of Ministers (“Cabinet”) operated on the basis that applicants who were able to prove that they possessed a “Spanish Sephardic identity” and a “ special personal connection to Spain “ (“personal connection”) established the existence of “exceptional circumstances” which entitled them to apply for citizenship by way of naturalization by Royal Decree under the provisions of Article 21.1 of the Código Civil (Civil Code).
In the ordinary course of events, the expectation was that the Cabinet would exercise its discretion in favor of the applicant who established the existence of “exceptional circumstances,” and recommend to the King that the applicant be granted the citizenship. The King did so by issuing a Royal Decree to that effect.
2. Proof of “exceptional circumstances”
In practice, the exceptional circumstances were usually established by the Certificate issued by the Federación de Communidades Judias de España (Federation of Jewish Communities of Spain “FCJE”)[31] signed by its authorized officer, attesting to the facts that the applicant is Jewish; of Spanish Sephardic cultural and, where possible, linguistic tradition (Ladino or Haketia) or in other words, that the applicant possessed the requisite combination of Sephardic identity and personal connection to Spain. In some instances, the applicant proceeded without obtaining the Certificate and instead filed both their applications and their entire evidence with the Cabinet.
The concept of “exceptional circumstances” is now embodied in Article 1.1 of the new law .However, as it will be shown below, the burden of the evidentiary requirements to establish these circumstances under the new legislation are more burdensome than they had been prior to the legislation.
3. Supplementary evidence
In addition to the evidence of “exceptional circumstances”, the applicant was also required to submit personal information about all members of the family and related supporting documents like birth, marriage, citizenship certificates, certificates related to criminal records and others. This proof continues to be required under the legislation.
II. The problems associated with the criteria and application of the law governing the acquisition of citizenship by naturalization by Sefardies prior to October 1, 2015
1. The major impediments
The four major impediments to the acquisition of Spanish citizenship by way of naturalization were:(1) the government’s unfettered discretion to entertain such applications in the first instance, let alone to accept or reject them. As the Zapatero incident illustrates,[34] the government of the day was able to decline to entertain the applications for reasons that are wholly immaterial to the merits of the applications; (2) with the exception of Sefardies who are nationals of a country included in the group of countries identified above, those who acquired the citizenship were required to renounce all the other citizenships they held; (3) the excessively long duration of the process, and (4) the considerable cost of prosecuting the applications, without any certainty that the application would succeed.
To these, I am inclined to hypothesize a fifth one; namely, the lack of transparency in the decision-making process, as the applicants were kept in the dark as to the specific facts and circumstances upon which the Cabinet relied in reaching its decision, particularly when the application was rejected.
Historically, the impediments (2) to (4) inclusive and the applicants’ indifference to or the lack of interest in settling in Spain probably accounted for the relatively modest response of the Sephardic Diaspora to the former naturalization process.
On the whole, the applicants preferred the naturalization process over the one that required residence.
2. The provisions new legislation related to the impediments
The new legislation (a) removes impediments (1) and (2); (b) appears to mitigate somewhat impediment (3) through the establishment of certain time limits in the decision-making process, but (c) neglects to address, and possibly compounds impediment (4).
With respect to the third impediment, the legislation may in fact compound the problem for an indeterminable proportion of the applicants by causing the lengthening of the extra time they may need (a) to assemble the evidence and/or, b) the extra time that they will need to pass minimally one examination and, for an as yet indeterminate number of them, to pass a second one, i.e. the language examination.
Insofar as the suggested fifth impediment is concerned, for reasons outlined below, the legislation compounds the lack of transparency.
III. The promise of 2012 and the legislative initiatives of February 24, and June 6, 2014 to enhance the access of the Sefardies to Spanish citizenship
1. The promises
On November 22, 2012, at a ceremony held at Madrid’s Casa Sefarad-Israel, the then Justice Minister Alberto Ruiz Gallardón accompanied by the Minister of External Affairs and Co-operation, solemnly announced that the Spanish government would offer to Spanish Sefardies whose ancestors were expelled from Spain in 1492 who could prove their Sephardic identity and their personal connection to Spain[35] an improved scheme of citizenship by naturalization; outlined the new approach and some of the proposed improvements.
The promises were warmly received both by the FCJE [36] and by the Sephardic Diaspora. It did not take long for some to dub the project, albeit prematurely, and as it turned out, incorrectly, as the “Spanish Law of Return” by analogy to the Israeli law, commonly referred to as the “Law of Return.”
Regrettably, the promises were slow to be written up as legislative provisions, which did not happen until 2014.[37]
2. The Bill approved by the Cabinet on February 7, 2014 [38]
On February 7, 2014 the Cabinet received and approved the Bill (draft legislation) setting out provisions that embodied the promises of reform.
Again, the Bill was also warmly received by the FCJE and caused a great deal of excitement in the Diaspora, one which a reporter described as “frenzy.” [39]
However, judging from the fate of the Bill and the subsequent conduct of the government, it is reasonable to suggest that Cabinet approved the Bill merely to gain time and had no intention whatsoever to proceed with it.. Although, two months later, the government announced the establishment of “objective criteria” for the implementation of the Bill, it was a stillborn endeavour. The Bill, compared to that which was to follow and to the resulting legislation, was too good to be true.
More specifically, it consisted of a mere three pages with one and half spaced type-written lines comprising merely two Articles, the first of which addressed all the evidentiary matters, while the second dealt with the procedural ones, and a few minor additional provisos. The Bill held out the promises that the evidentiary requirements will not be more onerous than they had been, while the procedure will be reasonable, accommodating and applicant friendly, among other things, in terms of costs. Ironically enough, the Bill also opened the path to citizenship for the descendants of those who at one point in time subsequent to their expulsion, voluntarily or otherwise, converted to Christianity, or for that matter to Islam, as has been the case in the Ottoman Empire , and for the descendants who are present-day crypto-Jews.[40]
Nevertheless, the Bill discriminated, and the new law presumably continues to do so, albeit without the clause, in favour of these three classes of applicants and against the descendants of the Sefardies who in 1492 chose to convert in order to remain in Spain and Navarra and of those who had converted but, faced with the horrors of the Inquisition, fled the country.
Of course, whether and how these non-Jewish descendants will manage to prove their “Sephardic identity” as defined in the legislation remains to be seen. Save for crypto-Jews, and even then, in the historical background and context of the legislation, it is difficult (but not impossible) to conceive of the life histories of Christian or Muslim Sefardies and even of crypto–Jews that are likely to satisfy the statutory requirements and criteria of eligibility under the new legislation.
3. From the Bill of June 6, 2014 to the Law of June 21, 2015
On June 6, 2014, the Cabinet was presented with and approved a second Bill. [41] The new Bill was nine pages long, almost 30% longer than the previous Bill, bore little resemblance to the former one both in terms of the relative simplicity of the evidentiary requirements and of the procedural provisions. The new Bill also increased the application fee to 100 Euros.
The new Bill did not have smooth sailing and the legislative process experienced a number of delays and difficulties. From June 10, 2014 when it was first presented to the Spanish Parliament, it took until June 24, 2015 to receive Royal Assent and become law.
At one point, the delays of the government in addressing what it considered to be complications became such that, in order to expedite the passage of the legislation, representatives of both FCJE and the Sephardic Diaspora urged the government, to no avail, to adopt the framework of the corresponding Portuguese legislation enacted earlier that year, despite the fact that the Portuguese legislation includes the proviso that the Cabinet retains the unfettered discretion to reject an application.
It is fair to say that the legislation fails to keep faith with the generous spirit which the government sought to convey earlier.
It is also fair to say that despite the improvements noted above with respect to the pre-existing impediments, the new scheme remains a complex one which is not applicantfriendly.
The proposed legislation was the subject of passionate debate and criticism in Parliament, where it was described as; (a) window dressing; (b) a political, symbolic or an empty gesture rather than an effective one;(c) insensitive towards the old; (d) a jumble of provisions, irrelevancies and democratic outrages; (e) a series of unjustifiably onerous and difficult hurdles; (f) lacking generosity and nimbleness, and (h) financially onerous and discriminatory to the poor. There was also vociferous objection to the increase of the application fee to 100 Euros.[42] Even making allowances for political partisanship, on the whole, these criticisms are substantiated in good measure on the grounds set out below.
a. Reception of the Bill of June 6, 2014 by the FCJE
The Bill somewhat dampened the original enthusiasm expressed by the FCJE and various representatives of the Sephardic Diaspora.
In June 2014, despite the solid evidence to the contrary, Isaac Querub Caro,[43] President of the FCJE, categorically stated his belief (the standard one expressed by Sephardic officialdom in Spain) that Spain is not an anti-Semitic country and sought to explain away the existing anti-Semitism with what I consider to be a rather simplistic notion, thatthis existing anti-Semitism is caused by “ignorance and disinformation about the Israeli-Palestinian conflict.” However , he then went on to qualify his categorical belief by asserting that the Church “… needs to be more proactive [in the fight against prejudices] because many of the prejudices are of religious origin. For example, it would please me if [the Church] would prohibit the celebration of the sainted child of La Guardia.”[44]
b. The voting on the proposed law
The enactment of the law was hyped by the fact that the vote in support of the legislation was (technically) unanimous on the basis that no one voted against it. The actual outcome can be hardly described as unanimous since the Bill passed with 292 votes in favour, 16 abstentions and 42 no-shows.[45]
c. Reception of the law by Querub and the FCJE
A year later, on June 11, 2015, upon the enactment of the law, Querub, in the presence of the Minister of Justice Rafael Catalá and José Manual Barcia Margallo, Minister of Foreign Affairs, declared that the law “opens a new era for the Jewish community... It is a day of hope and happiness.” (Italics mine). Querub after expressing his gratitude to the government, further stated that “…this is a law that arrived somewhat late but validated the idea that Spain `has arrived for its appointment with history’” and continued “I hope that this will serve to make Spain a better place with more diversity’.”[46](Italics mine) Yet, on the same date, in an op-ed published in the Spanish newspaper El Pais, he wrote: “We hope that Jewish life will be considered normal in the Spanish society, which will act as an antidote against prejudice and stereotype.”[47] (Italics mine). He expressed his satisfaction with the law and characterised it as a “moral redress,” whatever he may have meant by that phrase, and a new stage in the relation of the Jewish community with the Spanish one (Italics mine). He did, however, express regret about “the complexity of the process” through which the applicants are required to navigate with their applications.[48]
Querub said more or less what officialdom expected him to say in order to remain in the good books of the government and of the audience at large. Nevertheless, on close reading of his pronouncements, I find the words which he chose to address the legislation in the context of the past and present of the Jewish community in Spain, the perception of this community and the attitudes towards it by the dominant society, to be tentative and rather sad considering that it was 2015. Querub spoke in terms of hopes, knowing, as he must know or at least feel, that the hopes he expressed are not quite warranted by his firsthand knowledge of the contemporary socio-cultural realities of Spanish society.[49] Given his pre-eminent position in the organization of the Jewish communities of Spain, I venture to suggest that what he said and the way he said it reflect the true inner thoughts and feelings of the members of the community he serves.
The FCJE as an organization, possibly keeping in mind the old Sephardic adage “Ken kere mas, resive manko” (Ladino, “one who wants or asks for more, receives less”) demonstrated a more upbeat approach on its website with equal parts of self-congratulatory joy, and profuse expressions of gratitude to the government that reiterated the sentiments expressed in the last paragraph of the Preamble. The FCJE speculated by predicting, rather outlandishly, that: “Today begins a new stage in the history of relations between Spain and the Jewish world; a new period of meeting again, of dialogue and harmony that will fully reintegrate a branch of the Spanish nation that in its day was unjustly torn off.”[50] (Italics mine).
For the occasion, the website also quoted in bold letters the first part of the often quoted statement of former King Don Juan I who on the occasion of his praying at the Beth Yaakov synagogue in Madrid in 1992 to mark the 500th year of the Edict declared: “Sefarad is not a nostalgia but a home and it ought not be said that Jews feel at home because the Spanish Jews are in their own home.”[51]
To sum up, considering the fact that the legislation was not enacted in response to a popular clamor for it, surely there is no logical connection or, at best, there is a highly tenuous one, between the enactment of the law and the outcomes the Preamble targeted, Quorum hoped for, and FCJE predicted.
At all events, the phrases ‘new beginning’, ‘new relations’, ‘new era’, ‘new stage’ and ‘new period’ bandied about to characterize the legislation are hardly accurate. As a matter of historical record, I would have thought that the very first ‘new’ whatever occurred (1) in 1809 followed by those in (2) 1891;(3) 1924-1930; (4) 1935-1936; (5) during the first part of World War II; (6) 1948 ;(7) 1968 when the Spanish government officially rescinded the Edict of 1492 which, as a matter of fact, already had been rescinded, by the operation of law through various Constitutional and other legal enactments; and established diplomatic relations with the State of Israel; (8) 1975 and during the years following the re-establishment of the Constitutional Monarchy and the reconciliatory declarations and gestures of the former King Don Juan I, (particularly in 1992 marking the 500th year since the Edict of Expulsion and the expulsion of 1492) and in (9) 2004 with the establishment of the previous regime of naturalization.
I have no doubt that a closer look at the history of Spain and of its Sephardic community would disclose many more such new things
By my restrained accounting of historical events as ‘new’ relations, era, stage or period, the new law then is the 10th one in the last 207 years. Most regrettably, it is the one that opens the doors to the descendants of the “ancient sons of Spain” to come back home under the most onerous legislation to date.
4. Reception of the legislation in the Sephardic Diaspora and in Israel
The Sephardic Diaspora does not seem to be ready to adopt the outwardly enthusiastic posturing of its Spanish brethren. For example, the best Abraham Haim, President of the Council of Sefardies in Jerusalem, could bring himself to say was: “I am prudent and I do not like to say that this law does justice. Let us say that it improves the image of Spain a little and adds pieces to the mosaic of the re-encounter of two peoples.”[52]
Leon Amiras, President of the Israeli Organization of the Immigrants in Israel from Latin America, Spain and Portugal (OLEI) after describing the Spanish legislation as a “symbolic gesture,” analogized the difference between the Portuguese and Spanish legislative schemes: “ as being the difference between a girlfriend who loves you [Portugal] and one that hasn’t quite decided yet.”
Others, after making some muted criticism of the legislation adopted a ‘wait and see attitude’, on the premise of the old adage that ‘the proof of the pudding is in the eating’.[53]
5. Looking forward
I venture to opine that whatever enthusiasm for the law remains, it will be further dampened after the prospective or current applicants begin to gain a fuller appreciation of the legislative bureaucratic and financial hurdles they must get through. I also venture to predict that some members of each of these two classes of applicants will be less than enthusiastic, especially those who (a) have modest means; (b) are old;(c) lack sophistication in the ways of the world;(d) have limited education; (e) never appeared before a judge or a judicial officer in a legal proceeding; especially one conducted in a language in which they lack oral fluency and spoken in a way that is foreign to their ears; (f) for a variety of reasons, are not or do not feel suited to appear in person in a proceeding;(g) do not have any experience in retaining, instructing a lawyer at all or for this particular type of case which involves the laws both a domestic and a foreign jurisdiction; (h) have had no occasion to deal with legal bills; or (i) have no idea of the kind of intestinal fortitude required to go through with such a case.
IV. Preliminary Matters
1. Definition of the term “sefardies” in the legislation
The term “sefardies”, is defined in the introductory sentence of the Preamble. The applicants are bound by this definition which restricts the ancestry of the applicants to those expelled from Spain in 1492 pursuant to the Edict .The descendants whose ancestors were not part of the 1492 group are ineligible to apply. Accordingly, the current popular broad definition of the term has no bearing on this legislation.
2. The implied “sunset clause”
The Spanish legislation, as presently framed, is set to expire at an as yet undeterminable date counting from the conclusion of a period of three years, with a possible maximum of four, which commenced to run on October 1, 2015 within which the applications accompanied by the supporting documentary and other evidence must be filed. These limitation periods are subject to two specific exceptions addressed below in Part K.I
These deadlines raise the question as to whether this legislation is a one-time final offer or a period of time waiting to be followed by another new stage, era, period and the like, pending the intentions of the government of the day when the legislation will be due to expire or expires.
Actually, , the legislation has another built-in expiry date because the pool of applicants who can handle or prove some of the evidentiary requirements concerning Sephardic identity and personal link, will shrink at an accelerated rate, starting with the youngest generation of applicants and their successor generations.
3. Children of mixed marriages
I am unable to address this issue both due to constraints of space as well as due to my lack of familiarity with the issues raised by such marriages or series of marriages in the context of establishing Sephardic identity.
4. Age and disability factors in determining the eligibility to apply
The legislation sets the minimum age of eligibility to apply for citizenship at 18. Beyond that, the question of the entitlements of: adults with various types of civil and/or medical disabilities; the wholly incapacitated; the non-emancipated; minors under 18 and in particular those of 14 and under, raise complex legal issues of private international law governed by juridical regime of the country where these potential applicants normally reside, read in conjunction with the Spanish domestic law.[54]
Due to constraints of space, this paper focuses solely on applicants who enjoy the right to apply.
D. The Fundamental Evidentiary Criteria to Establish Entitlement to Citizenship
There are three fundamental criteria which the applicants must meet in order to establish their right to acquire citizenship; first, to be a descendant of the Jews expelled from the Spanish Iberian Peninsula in 1492; second , to possess a Sephardic identity, and third, to have a personal connection to Spain.
E. Evidentiary Requirements (1): Proof of Sephardic Identity by Certification
I. “Certificate of Sephardic Identity”- Three types of certificates- Article 1.2(a) to (c) inclusive[55]
The President of the Permanent Commission of the FCJE is authorized to issue a certificate of Sephardic Identity upon the applicant’s submission of the documentary evidence prescribed by the legislation. The Commission operates at arm’s length from the government.
The FCJE has given a public undertaking to respond to each application for a Certificate within three months from the date of the application.
The Certificate may also be issued, by any Jewish community, regardless whether it is a Sephardic one or not. Based on my experience and observations, generally speaking Ashkenazi rabbis and community leaders in Canada (and possibly in some parts of the United States) are not particularly knowledgeable about Sephardic history, culture, traditions and practices, let alone the idioms.
Hence, this legislative criteria unfairly discriminates against applicants (a) who are not properly speaking, members of an existing organized Sephardic community and congregation; (b) were born or reside in an area which does not have such a community and congregation; (c) live in a country (i) with a tiny or small Sephardic population dispersed across the country and particularly across a large one like Canada; or (ii) where organized Sephardic communities or congregations or (iii) both; and (iv) if they exist, are not located within a reasonable distance of the applicants’ residence or workplace;(d) who do not attend a Sephardic or any other synagogue for a variety of reasons best known to themselves and are otherwise not known to the community ; (e) who are in an equally difficult situation in their native city from which they emigrated a long time ago as an infant or a young child; whose parents were not born or married there and did not live there long enough and passed away elsewhere, or (f) at all events, who cannot access their place of birth. Such scenarios can hardly be said to be far-fetched in the light of (a) the rapid secularization of the Sephardic Diaspora or, (b) their assimilation into the Ashkenazi communities, and (c) the Jewish Diaspora’s historically high rates of geographical mobility, forced or voluntary.
In the result, this class of applicants would have a rather hard time securing any of the three certificates prescribed by law, namely those issued by (a) the FCJE under Article 1.2(a); (b) the community of the applicant in the way prescribed manner in Article 1.2(b) or (c) by the rabbinate under Article 1.2(c) with the supplementary requirements related to the institutions of the second and third.
This discrimination is compounded in the event the FCJE is not prepared or is unable to issue its own certificate of Sephardic identity where the documentary evidence submitted by such an applicant are not adequate or raise factual and historical issues which the applicant is either unable to address to the satisfaction of the FCJE or as it turns out, addresses them in a manner detrimental to the application.
The FCJE Certificate carries great weight because of (a) the historical and statutory relationship between the organization and the Spanish state;(b) the organization’s longstanding and well-established relations with and knowledge of the Sephardic Diaspora;(c) its substantial and in many ways unique experience in (i) assessing the probative value of the evidence tendered by the applicant, and (ii) determining whether the Certificate ought to be issued or declined. [56]
Of greater interest to the applicants, it is possible to insert in the Certificate a number of facts supporting other requirements or criteria, thereby dispensing with the need to secure the evidence of those facts separately at some cost both in time and money.
On the whole, the Certificate dispenses with a great deal of additional tedious and, at times, frustrating work which the applicant would have to do in the absence of a Certificate, and again, in the process, it saves both additional time and money.
For its services related to the certification process, the FCJE charges the princely fee of 60.50 Euros (including the 21% VAT) payable after the Certificate is issued. [57]
The FCJE’s website provides some very useful information about the citizenship process and the applications to obtain one of its certificates and a very limited amount of summary statistics. [58] Nevertheless, the organization’s information package is deficient in that it fails to provide the potential and actual applicants with other kinds of information that would greatly assist them in addressing their concerns about the legislative process. For example, the FCJE does not publish (a) the number and percentage of applicants who fail to obtain the Certificate; informative statistics about the operation of the Certificate system; (b) a description of the deliberative process and criteria that will lead it to decline to issue a certificate; and (c) the relative weight it attaches to each evidentiary requirement and to each of criteria comprising a requirement.
II. Alternative evidentiary requirements and criteria (2)- Proof of identity- Article 1.2(d) to (g) inclusive [59]
With respect to Article 1.2(d), it is a sad but a true fact that Ladino, or more correctly Judeo-Spanish, is a highly endangered linguistic species. For all intents and purposes, in the Sephardic communities, the language has become or is fast about to become exclusively the lingua franca of the seniors, as it would appear that most of the parents, especially those in mixed marriages, are not particularly keen to teach the language to their children, and quite independently of that, their children show no particular interest to learn it. [60] In the result, the younger generations of applicants already have a hard time and with the effluxion of time, will find it even harder, if not impossible, to establish the required proof under both the heading of Sephardic identity and that of personal connection to Spain.
Furthermore, the language requirement is vexatious in light of the admissions in the Preamble of the law that “the sons of Sefarad” maintained an immense nostalgia for Spain that occupied a place of first importance immune to the succession of languages and generations and sustained it by preserving Ladino.[61] It is trite law, at least in the English common-law system and tradition, that as a general rule, the Preamble to a general legislation is not part of the legislation proper and may not be resorted to in the interpretation and application of its provisions. Nevertheless, I find it objectionable for the legislation to dwell on this requirement contrary to the unqualified assertions made in the Preamble. The alternative criteria under the requirement are equally vexatious for applicants of the younger generations.
The requirement set out in Article 1.2(e) comprises three alternative criteria: (i) proof of registration of birth; (ii) the production of a Ketubah, or (iii) a marriage certificate which attests that the marriage was celebrated according to the Castilian traditions. The second criterion discriminates against (a) the Sefardies in mixed marriages; (b) the Sephardic couples who do not live in traditional societies and communities or simply chose, for whatever reason, to have only a civil marriage, and in any event, prefer to have a secular marriage contract governed by the laws of a particular civil jurisdiction of their choice The third one concerning the marriage certificate is both discriminatory and vexatious since all the expelled Jews did not originate from areas where the matrimonial customs were those of Castile, as was, for example, the case of the Jews expelled from Aragon and of the members of the centuries-old Jewish community of the Muslim Kingdom of Granada captured shortly before the expulsion.
Article 1.2(f) sets out the criterion of surnames. Elias Bendahan notes that Spanish law gives weight only to surnames that are both historically and presently and unequivocally Sephardic but that names that are typical and characteristic of a Sephardic lineage of Spanish origin are acceptable as evidence.[62] On this matter, Spain has summarily rejected the use for evidentiary purposes of any lists of Sephardic names as proof of the Sephardic identity of the applicants whose surnames are entered on such lists. The Article in effect sets out the latter test and requires “informed evidence” provided by an organization with “adequate credentials” setting out the grounds on which the applicant’s surname pertains to a Sephardic lineage of Spanish origin. [63]
It is reasonable to anticipate that a large number of applicants will encounter problems in satisfying this criteria, for a variety of reasons, including the facts that a lot of Sefardies, like the Ashkenazim of previous generations at some point in time in the past and unknown to the applicant, have felt compelled to change their names (a) both anxious and keen, as they were, to integrate into the dominant society of the country (and in many cases, consecutively to more than one) to which they immigrated or where they sought refuge; (b) in response to the not so subtle reactions to the names by members of the dominant society in the receiving country or region thereof; (c) comply with policies or legal requirements concerning the choice and change of names to avoid harassment and, at times, violence, and corollary to that (d) in order to avoid being noticed and to be able to circulate, as much as feasible, under the radar in countries infected by xenophobia, chauvinist nationalism, or religious intolerance, all of which usually goes hand-in-hand with anti-Semitism.
F. Evidentiary Requirements (3): Personal Connection to Spain-
Article 1.3(a) to (f) inclusive[64]
As is the case with each of the two evidentiary components of the evidence of Sephardic identity, the decision as to whether an applicant meets the requirements of this Article is made on the whole of the evidence submitted exclusively under this heading, regardless of the elements of proof provided under Article 1.2 even when they are relevant to Article 1.3.
Article 1.3 (a) which requires proof that the applicant has engaged in the study of Spanish history and culture, will disqualify a substantial number of applicants who (a) did not and still do not have the luxury of time to study it both timewise and in monetary terms; or (b) do not have the intellectual wherewithal to undertake such studies for the specific purpose of applying for Spanish citizenship; assuming, of course, that such study programs are readily available in or within a reasonable distance of the areas where they reside.
Again, for the reasons outlined with respect to Article 1.2(d), it is fair to question the requirement of Article 1.3(b); namely, possession of “accredited” knowledge of Ladino or Haketia which is discriminatory. It is also wasteful and vexatious because save for (a) applicants raised in Ladino-speaking families, who were taught the language and became reasonably proficient at it and b) those who have a professional or personal interest in Ladino, in the ordinary course of events, people are not known to show much, if any, interest in acquiring a dying or a dead language in the country, region or community where the applicant happens to live.
The requirements set out in Articles 1.3 (c) and (d) overlap with those in Article 1.2(f) under the heading of “Sephardic identity.” The former are as relevant, if not more, to the issue of identity than to “personal connection” and could have been used as an alternative to 1.2(f) or better still merged with it, at considerable savings for the applicants.
I submit, that in the circumstances it would have been far more reasonable , inclusive and cost effective to combine the proof of identity and personal connection under a single heading, as was the case under the previous regime and, in the process, reduce the total number of requirements and criteria while combining the optional evidence clauses 1.2(g) and 1.3.(f). In this regard, once again, the legislative scheme is both overdone and wasteful.
Worse, save for the two examinations, the overall scheme of requirements and alternative criteria creates a great deal of uncertainty for the applicants since they have no idea as to the relative weight that will be assigned to each of these and therefore will not be able to take this important factor into account in selecting and assembling their evidence.
G. Evidentiary Requirements (4): Two Mandatory Examinations Developed and Administered by the Cervantes Institute[65]
These examinations are mandatory subject to the following exceptions: The adult nationals of countries and territories where Spanish is the official language are exempted from writing the language examination, while minors and persons with incapacities are exempted from both but are required to provide instead, a variety of certificates depending on their status as a minor or an incapacitated person.
I. Knowledge of the Spanish language
The object of this examination is to determine whether the applicant possesses knowledge of the Spanish language as a foreign language at level A2 (basic) or higher, in accordance with the standards established by the European Council.
This examination is vexatious, in the light of the fact that the Preamble describes Ladino as a “Castilian language [66] enriched by imports from the surrounding languages” (Italics mine). It is so because this requirement requires the applicants who can speak and write every-day Ladino, to undergo the language test for it in addition to having to satisfy with the other Ladino related criteria. At all events, surely, an applicant who speaks Ladino will be able to communicate with Spaniards, as I do with my patient and helpful Spanish-speaking acquaintances, who are always at the ready to lend me tactfully a missing word or phrase here and there as needed.
This requirement (a) is wasteful of the time the applicants will be required to devote to the preparation of the examination and of the expenses they will have to incur in preparation for this examination; (b) discriminates against applicants who will find it difficult to satisfy this requirement by reason of a number of factors such as old age, lack of time, funds or education; and finally (c) is superfluous for the applicants who have no intention of settling in Spain and otherwise have no practical use for it.
Insofar as the applicants who intend to settle in Spain are concerned, based on my experiences and observations as a long-time immigrant to Canada, it is self-evident that the Spanish government does not appreciate the strength of the motivation and drive of the immigrants to learn the language of their adopted country and the speed at which they do so, particularly if they already speak a variant of Spanish or a related one in the group of Romance languages, or more importantly are anxious to get a job.
The fee for this examination for each applicant is computed by a prescribed formula. The Institute obligingly provides the applicable fee on a case-by-case basis upon the applicant electronically inputting the required information to a table found at the Institute’s website concerning the language examination.
II. Knowledge of the Constitution and of the “socio-cultural reality” of Spain
The object of the second examination (CCSE) is to determine whether the applicant possesses the requisite knowledge of the Spanish Constitution and of the Spanish “socio-cultural reality”.
The requirement concerning the Constitution is confounding. Save for an academic or other professional interest in the subject, why would an applicant who lives in another country know, would want to know or, for that matter, care about the Constitution of Spain? The subject is as esoteric as any subject can be, even for most lawyers who do not practice in this area of the law. Surely, if the ordinary folk of Spain are like those of other countries, Canada included, they also would be hard put to answer even some basic question regarding the Constitution of Spain.
As for knowledge of the socio-cultural reality of present day Spain, presumably in accordance with the politically correct view of this reality, it is a trite but true proposition that most reasonable people who are considering settling in another country would first check out this reality as well as the economic one on the ground. And if they are Jewish, they would also instinctively want to determine whether the country suffers from Judeo-phobia for religious, cultural, economic or political reasons, various combinations or permutations of these or for that matter, sometimes for no reason save to gain acceptance into a group and to retain its membership.
Ultimately, the perception and interpretation of the socio-cultural reality of a country is not found in the expected answers to examination questions provided by the Cervantes Institute but in the personal impressions and opinions of each applicant. And when it comes to the issues of adaptation and integration into Spanish society, these impressions and opinions, more often than not, become self-fulfilling prophecies.
In the premises, this requirement is frivolous, wasteful for the foregoing reasons and discriminatory for the various classes of persons with limitations of one kind or another identified above.
By way of consolation, the websites of the Cervantes Institute are extremely well organized and helpful. They provide (a) answers to all the reasonably pertinent questions the applicants may or can think of; (b) tools to prepare for the examinations including two glossaries: one for terminology (translated into English, French, Portuguese, Hebrew, and Arabic) and one for Spanish grammar, that are provided (c) free of charge to the applicants registered with the Institute, plus (d) electronic access to a 90 page manual containing 300 questions, 25 of which constitute part of the CCSE examinations administered during 2015.[67]
The fee for this examination is 80 Euros and allows the candidate to write the examination twice.
III. Assessment of the outcomes of the examinations
Based on my personal experience, the potential and actual candidates will be disappointed to learn that the Cervantes Institute does not post meaningful statistics concerning the outcomes of the examinations administered to date that would identify the nature of the impediments to taking and succeeding in each of these two examinations.[68]
H. The Legislation Revisited (1): The False Promise of Restitution and the Ultimate Perverse Irony
1. The false promise of restitution
As noted above, the legislative scheme has been characterized as an act of redressing an historical injustice by the restitution of Spanish citizenship to the descendants of the Sefardies expelled over five centuries ago.
The legislation, whatever else it is or might be, I submit, does not amount to an act of equitable restitution by any stretch of either legal or lay imagination. This is because the so-called restitution is made only to the descendants who can satisfy the unilateral and in many instances, frivolous, vexatious, wasteful, discriminatory or purely arbitrary requirements and criteria of proof which the applicants must satisfy without any regard to the effluxion of time and the present socio-cultural realities of the Sephardic Diaspora. In effect, to a considerable extent, the legislation freezes in time the image of the Spanish Sefardies in 1492.
The government and Parliament have done so, conveniently forgetting that it was the Spanish government that unjustly expelled their native sons and daughters because they happened to be Jewish; forbade them to return; decreed the death penalty to those who did and severed all contacts with them during the ensuing nearly three centuries;. More importantly, the restitution was to be for the unjust expulsion and not for what the expelled did or failed to do after their expulsion to remain faithful to their historical image in the minds of the Spaniards.
As Jorge Rosenblum, Director of Radio Sefarad aptly and succinctly put it “restituir no es conceder” (to return something/ to restore rights is not to give/award or bestow). [69]
2. The ultimate perverse irony: the legislation is a replay of 1492
In effect, under the heading of “personal connection to Spain” including the two prescribed examinations, the law provides for the restitution upon officialdom being satisfied that the candidate is personally suitable to become a Spanish citizen i.e., able to integrate into the present day Spanish society. In the premises, the law refuses to make restitution to applicants adjudged to be unsuitable according to these so-called “objective” standards, to borrow the exact term used by the government when it published the proof required under the first Bill. More importantly, just as it was done in 1492, the law establishes the grounds on which the descendants are to be further deprived of the Spanish citizenship.
To put it differently, the legislation provides the grounds to justify a modern day constructive exile. And once again, as was originally the case, the ground for the latter exile is being “different” than members of the dominant society: originally it was the religious difference, now it is failure to prove the continuation of what once existed or the hypothesized cum theorized inability of applicants to integrate, and preferably assimilate, into the present-day Spanish society.
Hence, contrary to all the assertions to that effect, Spain has not opened its arms to the descendants of those once expelled but only to those descendants it now considers to be suitable cum desirable for Spanish citizenship on the basis of the foregoing requirements of the law.
When on November 30, 2015, on the occasion of the celebration of the enactment the new law held at the Royal Palace, King Felipe VI said to the Sefardies in the audience and at large “How we missed you!” In fact His Majesty did not mean to say that He missed all the descendants, nor even the direct ones. Surely, what he actually meant to say was ‘how we missed those descendants whom the law in 2015 considers favorably whom We are now prepared to have in our midst!’ [70] (caps because kings and queens always speak in the first person plural).
By way of illustration, let us examine the facts of the recent case of the couple Joseph and Doreen Alhadeff .Both are Sephardic Diaspora Jews living in the United States. Doreen became the first Jewish American to obtain Spanish citizenship under the new law. She learned Spanish during her college years in Spain, However, Joseph who did not take a Spanish language course during his studies or otherwise, does not speak it and therefore, will not be able to pursue his application for the citizenship until he manages to pass the language examination. Consequently, here we have two genuine Sephardic descendants and while one got in, the other will be kept out until he passes the language test without any guarantee that his application will eventually succeed.
This is not to suggest that the government ought to grant citizenship holus bolus to any or all comers as and when they want to become citizens. Clearly, by definition, a sovereign country is entitled to control and defend its borders against all comers and to specify the criteria which they must meet to become citizens.
Rather, my point is that the population we have here are not indistinct lately newcomers. These are the descendants of subjects who were home to begin with. Hence, having regard to the unusual historical circumstances which the legislation purports to address, and to the claim of the government that the law has been enacted to correct an historical injustice by restoring the citizenship unjustly revoked from those expelled to their descendants, what is called for is a different set of evidentiary premises to frame the legislation.[71]
More specifically, these premises ought to be, first, a minimalist, sensible and sensitive approach to evidentiary requirements, providing suggestions but allowing every applicant the opportunity to provide the evidence, acceptable under the Spanish law, which she or he considers to be probative; and second, the nature and scope of evidence required ought to be such as to equalize the opportunities (a) to secure the citizenship among the applicants without regard to their respective age; state of mental and physical health (short of mental and total physical incapacity); level of education; profession, and financial resources and (b) to eliminate otherwise avoidable discriminatory practices and in default, to provide compensatory concessions. [72]
J. Procedural Issues [73]
I. Time-frames guiding the application process
The time-frames are set out in the legislation. More specifically, (a) Article 1 grants interested persons the right to apply for Spanish citizenship within three years from October 1, 2015.This deadline may be extended by one year with the consent of the Cabinet;[74] (b) Article 2 requires the applicants to be notified of the decision to accept or reject their applications, within one year upon the completion of all the interlocutory (intermediate) procedures, when the files are remitted to the DGRN, the authority entrusted with the administration of the application process that ultimately rules on the merits of each application by issuing a written decision outlining the grounds on which the application has been granted or rejected, and notifies the applicants accordingly by serving them with a copy of the decision.
These time-frames are subject to two exceptions. The first of these addresses the case of applicants who have already secured all the requisite proof that would entitle them to obtain the citizenship but fail to meet the prescribed deadlines in situations where exceptional circumstances or humanitarian considerations exist. In such cases, the applicants who secure the endorsement of the Minister of Justice are permitted to submit their applications directly to the Cabinet.
The second exception addresses the application of the provision of the law that requires a particular class of incapacitated applicants to be provided with reasonable accommodation in order to afford them the right of equal access to citizenship,[75] certainly a positive improvement over the pre-existing regime prior to 2013.
The one important missing piece of information concerns the ultimate permissible total duration of the interlocutory and final proceedings concerning the assessment of evidence, having regard to the potential complications that may arise. These are addressed below in sub-part III.
II. Significant departures from the pre-existing procedures (1): Processing the applications
The procedures prescribed by the legislation for the processing of the applications represent a significant departure from those used under the previous regime. More specifically, while the previous regime enabled the applicants to pursue their applications through the local Spanish consulates of the country in which they resided, the process under the new law is wholly computerized, managed and administered centrally in Spain by the DGRN. (Article 2.1) Accordingly, the applicants who find it difficult to handle the new system will be forced to incur additional expenses to hire the services of legal counsel or a para-legal proficient in Castilian and in the use of computers in these types of cases to handle this part of the process.
III. Significant departures from the pre-existing procedures (2): The division of the task of assessing of the sufficiency of the evidence submitted by applicants into a hierarchy of levels
A further departure from the pre-existing procedure is the division of the task of assessing the sufficiency of the evidence submitted by applicants into a hierarchy of two levels.
1. Procedures and process at the first level: The notary’s assessments and the hearing before the notary [76]
Article 2.3 requires the DGRN to transmit the applicant’s file to the General Council of Notaries (“GCN”) which in turn assigns it to a notary after taking into account the applicant’s (unspecified types of) preferences, presumably one of which would address the question of the location of the hearing.
a) The preliminary assessment of the application
Upon receipt of the file, the notary is required, within the next 30 days, (a) to conduct a preliminary review and assessment of the strengths and weaknesses of the evidence submitted with respect to both the Sephardic Identity and the personal link to Spain and (b) to make a preliminary determination as to whether the evidence is ex-facie adequate to meet the requirements of the law under both headings.
Where the notary reaches a negative conclusion with respect to one or both of these matters, he is required to write a reasoned report and submit it, along with the file, to the DGRN.
In the event the notary reaches an affirmative conclusion, she or he is required to (a) request the applicant to attend the mandatory hearing over which he or she will preside and (b) issue a formal invitation to that effect, and (b) provide the necessary documents to the appropriate authorities in order to insure that the applicant is able to enter the country.
b) The hearing before the notary
A regrettable feature of the hearing is that the applicant is not afforded the opportunity to make a choice between being represented at the hearing by a lawyer or a lay person or a trusted friend who is very knowledgeable not only about Spanish citizenship matters but also in dealing with evidentiary issues, and in particular those arising from the expert evidence, and would probably charge much less than a lawyer or nothing more than the costs of travel, if any. The lawyers enjoy a monopoly.
Nor is it clear whether the applicant may appear accompanied by a lawyer and/or a translator.
The applicant then must elect either to attend the hearing in person or to retain a lawyer to appear on his or her behalf. (Article 2.3) for a variety of reasons, such as the imperative need to avoid the anticipated levels of stress expected to be caused by the appearance, for example, due to the applicant’s old age; physical or mental health condition short of legal incapacity; limited education; a temperament unsuited for such occasions or linguistic limitations.
However, for the time being, the applicant’s attendance at the hearing must be considered to be of capital importance until such time as the applicants and counsel appearing at such hearings acquire and disseminate their knowledge of and experience with the notarial process to confirm or infirm the validity of this proposition.
During the hearing, the applicant, or counsel on his or her behalf, must present the originals of the documents submitted under Article 1 together with any translations prepared with respect to one or more of these, all in accordance with the technical evidentiary requirements prescribed by the law. The provisions concerning the proceedings before the notary are also silent as to whether during the hearing the applicant is at liberty to submit additional documents.
The applicant is further required “to state, in accordance with her or his responsibility before the notary” (as the statute phrases it) that he “is sure that the facts on which his application is based are accurate.”
The hearing, inevitably affords the notary the opportunity to observe the demeanor of the applicant and to test and assess the credibility and related issues.
Upon conclusion of the hearing, the notary must submit to the DGRN a reasoned report (curiously enough, within an unspecified deadline) that assesses the merits of the application or the lack thereof and transmits it together with the full file.
2. Procedures and process at the second and determinative level: The decision of the DGRN
Upon receipt of the notarial report, the DGRN is required to seek promptly the police and other reports from relevant units of two departments, to write the determinative decision to reject or approve the application and to notify the applicant accordingly. Strangely enough, for a modern piece of legislation and, at that, one with respect to which the outcome of the application is of considerable importance to the applicant, it contains the proviso that in the absence of such notification, administrative silence is to be construed as the rejection of the application.[77]
3. The rights of the applicants and the powers of the DGRN with respect to the notarial process
The legislation is silent as to whether (a) the applicant is entitled to receive copies of the reports submitted by the notary and if so, the time frame within which the reports must be delivered; and (b) the DGRN is entitled (i) upon receipt of the preliminary or the final report , to direct the notary to reconsider the evidence and submit a new report;(ii) to direct the notary to revoke or extend an invitation for a hearing, as the case may be, or ( iii), to remit the file to the GCN with a request that the matter be re- assigned to another notary, and at all events, (iv) to override or ignore the notarial report in part or in whole in writing the final decision.
4. Appeal against adverse decisions
The legislation does not address the matter of judicial recourse against adverse decisions. Instead, it merely refers the reader to the pertinent legislation in administrative law dealing with the review of quasi-judicial decisions of this type; a subject outside the confines of this paper.[78]
IV. The Challenges created by the new adjudicatory system: The issue of consistency in handling the evidence: fact-finding, assessment and decision-making
1. At the notarial level
The work of notaries during the roll-out of the legislation may be reasonably expected to be fraught with a number of difficulties (and inevitably, hazards for the applicants) . The most critical ones are those associated with the imperative requirements for every notary to be:
Firstly, self- consistent in (i) the interpretation and application of the law ;(ii) dealing with procedural matters; (iii) reading, weighing and assessing the evidence; (iv) the manner in which the hearing is conducted and the applicants and their counsel are handled and treated, and (v) in the writing of reports ; and
Secondly, consistent in all these matters with the manner in which the other notaries are handling their respective files.
Furthermore, in order to achieve these objectives individually and collectively, it will be imperative
a) to designate a person or group of persons to spot individual and collective inconsistencies, without undue delay, as and when these crop up; to resolve them according to law and to disseminate the outcome to the notaries and the DGRN.; and
(b) to establish for the notaries and the DGRN a readily accessible electronic bank into which every notarial report and DGRN decision will be downloaded in short order.
The challenges faced by the notaries will be particularly taxing having regard to
(a) the lack of precedent under the new law;
(b) the notaries’ limited, if any, and most likely uneven, knowledge of and experience in the law and art of adjudication and in the intricacies of assessing expert evidence in such diverse disciplines as history, ethno-history, linguistics, genealogy, onomastics that will inform the subjects and issues raised by the applications and may illuminate the Sephardic culture, traditions and practices of the region of Spain from which the ancestors of the applicant originated and most likely will illuminate as well those of the countries and regions where they settled and where the applicant lived and lives.
2. At the DGRN
The same or similar challenges will be equally faced and some type of co-ordinated remedial structure will be equally required in order to insure individual and collegial consistency among the decision-making personnel at the DGRN and between DGRN and the notaries.
In this regard, the fact that some or all of the DGRN personnel assigned to decide the merits of the applications under the new legislation, may have acquired some or a good deal of experience in preparing assessments and Cabinet briefs under the previous regime of naturalization, albeit on much less elaborate body of evidence, may or may not prove to be helpful under the new regime. It will depend to a considerable extent on the nature and types of strength and weaknesses of the assessments made under the previous regimes; on the ability of the DGRN personnel to get a good handle on the issues identified with respect to the notaries under the new regime, hopefully on the professional training that ought to be provided to them.
It remains to be seen how the government, the DGRN , the DGM and the notaries themselves will go about responding to these challenges, within a reasonable time frame in order to provide the potential and the current applicants waiting in line behind the first cohort of applicants that will go through both adjudicative stages, with a comfort zone within which their lawyer or lay advisor will be able to make informed recommendations while the applicants will be able to make informed decisions as to whether to submit an application or to continue with it, to proceed with an appeal against an adverse report or decision or, for that matter, to abandon the application. In the meantime, the initial cohorts of applicants and, I dare say, their lawyers will have to navigate through uncharted new and tricky waters. [79]
3. “The Devil Is in the Details” -The fine print of the ministerial regulations, guidelines and instructions.
In the light of the way the legislation has been drafted and the existence of multiple centers of decision- making such as the FCJE; the foreign entities empowered to issue Certificates; the Cervantes Institute, not to mention the DGRN, the DGN and the notaries, this adage has particular relevance to the fact that the law empowers the Minister of Justice to take such steps as necessary for the application and administration of the law.[80] These steps include such things as issuing regulations, internal or external guidelines and instructions. In addition to these Ministerial powers, the Ministry of Justice may be reasonably expected to issue legal opinions with respect to specific issues raised by the administration, interpretation or the application of the law.[81]
Upon the enactment of the law, the Minister of Justice Rafael Catalá after reiterating the spirit of re-encounter between the Sefardies and the Spanish society and the “generosity of the law” asserted that the bureaucracy will be “flexible” in processing the applications and he gave his assurances that “the government will speed up the resolution of the cases so as to “ facilitate the administrative proceedings.” The Minister gave further assurances that being conscious of the difficulties that will be experienced by persons who have not practiced their Jewish religion or by those who cannot travel to Spain, “ the government will accept whatever type of proof which reasonably establishes the applicant’s [Sephardic] origin, and “will do everything possible to facilitate the presentation of the application through consular offices”(Italics mine).[82]
However, while these promises and undertakings send positive signals, by the same token they raise a number of troublesome questions.[83]
V. The transparency issues
1. Issues already identified-Generally
The legislation is replete with substantive and procedural requirements and silent on accountability and reporting. In order to get a handle on and draw an accurate picture of the way(s) in which the legislation is performing or not performing, it is critically important to keep the government’s feet to the fire to insure the transparency of the entire process.
In the matter at hand, the issue of transparency is multi-dimensional. Four of these dimensions touch upon potential or actual problems that have been identified above and ought to be of considerable concern both to the administrators of the legislative program, as well as to the potential and current applicants and to their counsel. These problems are: (a) the set of issues arising from the new process of assessing the merits, or lack thereof, of applications successively by notaries and the DGRN;(b) the concerns raised by the comments of the Minister of Justice;(c) the complexity of the legislation with respect to the interpretative problems raised by some of the requirements and criteria; and( (d) the relative weight to be attached to each requirement and to some of the criteria set out under particular requirements. At this juncture, I do not propose to revisit each of these problems but merely touch further upon two of these issues.
2. Transparency through the timely delivery and public dissemination of notarial reports and decisions at DGRN and related materials resulting from the general dealings between the notaries and the DGRN and with respect to specific individual cases
More specifically, on the issues raised under the immediately preceding item (a), it is imperative for every applicant to receive within a publicly specified period of time copies of (i) the notarial reports, (ii) the full text of the decision rendered at the DGRN, and (iii) all exchanges between the notary and the DGRN with respect to their respective cases, if any. In this regard, the DGRN ought to publicly state its intention to ignore the provisions of paragraph no. 3 of the legislation titled Disposición adicional primera. Plazos I discussed above.
3. The interpretation of the legislative provisions
Isaac Querub in his speech before King Felipe VI on November 30, 2015, two months after the law come into force, expressed the wish of the FCJE that “the more demanding cum taxing requirements of the law could be mitigated by a balanced and sensible interpretation of these requirements by the officials responsible for its application.” The problem with this well- intentioned wish is that the net effect of its realization may well add to the problems I identified above under V.1 (a) to (d) inclusive. [84]
4. The weighing of the evidence
Querub spoke positively of what he described as ``the large number of evidentiary ‘indicia’ [or criteria] that may be used by the applicants to substantiate their applications.” While, as a general principle, the multiplicity of evidentiary indicia can be said to a positive feature of the legislation, the various issues and problems concerning these indicia identified above complicate matters considerably.
In the premises, it is important for the foregoing matters to be addressed and resolved in a transparent manner in order to assist the potential applicants to make informed strategic choices in selecting the evidence they will decide to proceed with.
5. Public social audit of the performance of the legislation
Having regard to the finite lifespan of the legislation, I suggest that the government ought to be pressed to collect regularly and publish on a quarterly basis, cumulative statistical reports on such things as (a) the number applications received, assessed and the outcome of both assessment by each notary and by each decision-maker at the DGRN, both identified by name; (b) the demographic, social, cultural , financial and occupational profiles and the countries of origin of the applicants successful and unsuccessful in one or both notarial assessments and before the DGRN; (c) the number of successful and unsuccessful applicants that proceeded with or without a lawyer.
VI. Costs
During the Spanish Parliamentary debates, Iñarritu Garcia, a member of the House of Deputies, estimated the cost of going through with the application to be at a minimum between 4000 and 6000 euros.[85]
VII. The Legislation Revisited (2):Various matters
1 .The need for this particular legislation in 2015
I submit that but for the intention to pursue the foregoing unstated two objectives identified above, the need for this law at this time would not have crossed the Spanish Cabinet’s collective mind.
In the alternative, I submit that if the government sincerely intended to actually keep its 2012 promises and remain faithful to its representations as embodied in the First Bill to secure the official objectives of the legislation, it need not have gone to all the trouble of designing a whole new legislative scheme.
All that was really needed to keep these promise was to amend the existing system with a one-page law that (a) repealed the prohibition against multiple citizenships; (b) removed the discretionary power of the Cabinet to grant or to refuse citizenship ;(c) granted citizenship as of right to those who satisfy the then existing evidentiary requirements; (d) inserted by reference the law concerning the right of equal access and accommodation noted above, (e) subject to the exceptions noted above, included the requirement to accommodate`;(f) established a fixed time table, within which the decision concerning the merits of the applications must be reached, and (e) required the Cabinet to provide the applicants with written reasons setting out the specific grounds on which the application is rejected. Everything else in the current law, including the Preamble, is superfluous.
2. The reasons motivating the potential applicants to proceed
The reasons that historically motivated the potential applicants, and continue do so at present, have been and continue to be quite diverse, as to be expected. Based on the various news reports, these appear to be (a) the need to satisfy sentiments and sentimental notions about Spain; (b) the wish to close the book on the subject of the Edict of Expulsion; (c) the quest for restorative justice; (d) pragmatism based on present or future apprehended or real personal and family safety concerns; (e) educational considerations; (f) good old fashioned philistinism, i.e. to search for and pursue new and better business and employment opportunities in the EU and to access its benefits, and (g) the wish to make a gift to or an investment in the future of children and grand-children. Some mischievously indicated their intention to apply for the sole purpose of making the late Queen Isabella and King Ferdinand turn in their graves.[86]
3. The emotional factor
The subject addressed by this legislation, unlike the run-of-the-mill general legislation, carries an emotional charge for Sephardic Jews, including for many of those whose reason to seek it is purely of a material nature. This charge was intensified by the pronouncements of the former King, the promise and pronouncements of the members of the government, the wording of the Preambles in the two Bills, and yet again by King Felipe VI in his speech of November 30,2005, on the occasion of the celebration of the new legislation.
Having aroused the potential applicants’ emotions, it is fair to argue that the government ought to have addressed their effect and factored them into the framing of the legislation. It failed to do so, as illustrated, among other things, by the one-size-fits-all approach in framing the evidentiary and procedural requirements; the discontinuity between the Preamble and the legislation which in turn contains its fair share of frivolous, vexatious, discriminatory or wasteful requirements or criteria, and saddles the applicants with the burden of a complex and expensive piece of legislation.[87]
K. The Legislation Revisited (3): A Proposal for a Supplementary Legislative Scheme: Citizenship Without Permanent Right of Abode
Based on what has been said and written so far about the motivations of the interested parties and the applicants to secure the citizenship, it is clear that (a) an overwhelming proportion of the total estimated pool of applicants will not be bothered to apply, [88] and (b) a substantial but as yet indeterminate proportion of them who are likely to succeed in in obtaining the citizenship will have no desire to abandon their own country and, as they would see it ‘expatriate’ themselves to Spain or to one of the other countries of the European Union.
In the premises, with the exception of those who will seek brighter business and career opportunities, it will not be necessary for the vast majority of the applicants who apply for the citizenship for any one or more of he remaining reasons enumerated above, to settle in Spain or in Europe save temporarily for educational and other related purposes.[89]
Accordingly, it would have made eminent sense, and it still does, for the government to frame a second track to offer the classes of applicants who are not interested in settling permanently in Spain or in an EU country, a citizenship without the right of permanent abode in Spain and in the EU.
Such an approach would make it possible to assess the applications from these classes of applicants with common-sense uncomplicated requirements that would fairly reflect the nature of the citizenship being granted.
In the result, the proposed alternative track with simplified evidentiary burden and procedures which would dispense with the notaries and lawyers would have afforded the applicants, their spouses and minor children, not to mention the elderly, the poor and others, the opportunity to acquire the citizenship with far less bother, at substantially lower cost and without extra cost to the Spanish treasury.
For the purists, this proposal would fall far short of the promised restitution. The philosopher Jean-Jacques is said to have once opined to the effect that he preferred to have principles that he can live by and honor rather than grand principles honored in their breach. I agree. I believe that it would have been wiser and certainly more forthright for government to knock off with all this public relations exercise of correcting an historical mistake cum injustice by making restitution and towards this end restoring the Spanish citizenship to the descendants of those unjustly expelled and then waxing poetic and resorting to glorified lyricism about the expelled, [90] particularly since the government had no intention whatsoever of making an ‘equitable’ restitution in the first instance.
Instead, the government ought to have focused on being mindful of (a) the actual reasons that motivated members of the Sephardic Diaspora and those that motivate them in the present to apply for citizenship by naturalization, and (b) the patterns of choices made by those who acquired the citizenship in the past in terms of where they and their children chose to live permanently.
Had the government done so, and tackled the object of the whole exercise to make genuine and meaningful amends in a transparent, straightforward and practical manner, having regard to the pertinent historical and present-day facts and circumstances, the resulting legislation would have been framed in a sensitive manner, responsive to the right considerations, simpler, more flexible, inclusive, productive, considerably less expensive to access, and ultimately more satisfying for both the intended beneficiaries of the legislation and the targeted audiences of the government.
Of course, there is no reason why in due course, the Spanish government could and would not revisit the cases of citizens who secured the proposed type of citizenship to examine the possibility of lifting the residence limitation or affording them the opportunity to acquire the right to permanent abode.
L. Concluding Notes
I. The government’s political bargain
In stark terms, this legislation reflects the government’s approach to and the regulation of the issues associated with the potential influx of an unknown number of Spanish Sephardic citizens into Spain, the EU, not mention the Diaspora.
Clearly, the legislation is a top-down initiative based on political imperatives and not a response to the demands of a grass-roots movement. As such, the law is unlikely to generate much, if indeed, any popular enthusiasm for the Sefardies or to influence positively or neutralize the existing negative socio-cultural attitudes towards the Jews in Spain.[91]
In the final analysis, the government took to heart the wisdom of the Sephardic proverb and refused to stretch its legs beyond the confines of its political blanket. It drafted the law having regard to the social, cultural and political realities of Spain and proceeded with it.
The legislation represents the compromise that the government believed the Spanish society was prepared, if not necessarily to accept, at least to tolerate and embodies the bargain which the government struck with its own electoral constituencies and more generally with the Spanish electorate as a whole, in the light of the current realities concerning the nature of the relationship of Spaniards with Jews at home as well those abroad and the Israelis, as the Spaniards imagine them to be.
II. Making choices and decisions[92]
It now remains for the potentially eligible applicants to search deep into themselves to decide whether they can honestly take the oath of obedience to the Constitution and loyalty to the King whose governments, beginning in the 1970s, save for the odd exception acted, and continues to act against the fundamental rights and interests of Israel, the Israelis, and the Jews of the Diaspora as a whole who consider Israel to be their home beyond home, by aiding, abetting and supporting her foes, right or wrong, directly as well as through the European Union.
Speaking for myself, it is a decision that needs to be made mindful of both the Sephardic proverb and of Faulkner’s observation that is especially true in both the personal and the collective histories of my people.
Bibliography
Legislation
Spanish Historical Legislation
- 1804-1923 Spanish policy of offering Consular protection and citizenship to Sefardies under protection in Greece, Ottoman Empire, Balkans, Egypt.
- Royal Order no.14, of 16th May 1905 addressed to the consulate in Istanbul and no.23, of 28th March 1913, addressed to the Spanish legation in Istanbul.
- (Primo de Rivera’s) Decree of December 20, 1924 in effect until December 30,1930.
- Notes of January 16/17, 1935 and April 7, 1936 pursuant to which Egypt and Greece recognized their respective Sephardic Jewish subjects to be under Spanish consular protection. Real Decreto de 20 de diciembre del 1924 (Decree of December 20, 1924) in effect until December 31,1930.
- Decreto-Ley de 29 diciembre de 1948 por el que se reconoce la condición de súbditos españoles en el extranjero a determinados sefardíes, antiguos protegidos de España, Jefatura del Estado , B.O de E .nüm. Janaury 9,1948 (The Decree granted Spanish citizenship to the Sephardic families whose names were included in Notes of 1935 and 1936, supra. permitted the Sefardies based in North Africa, Greece and Egypt, to return to and settle in Spain. Save for few, if any, the families instead immigrated to Israel.
- Orden Circular no.2217 de febrero de 1949.
Spain: Modern Legislation: Bills (Draft legislation-Anteproyecto de Ley) and laws
- Constitución Española,1978, Articles 149.1,8a,13 and 16.
- Ley de 51, 1982, de 13 de julio de modificación de los artículos 17 al 26 del Código Civil as amended; currently
- Ley 36/2002 de 8 de octubre. de modificación del Código Civil en materia de nacionalidad, BOE nüm. 242, de 9-10, 2002, in particular para. 22.1.
- Ley 30/1992 de noviembre 26 de Regimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común.
- Ley 25,1992 Acuerdo de cooperación del Estado con la Federación de Communidades Israelitas [ now Judias ] de España.
-Código Civil (Civil Code, Articles 17-26 as amended by Ley 36/2002 supra.
- Ministerio de Asuntos Exteriores y de Cooperación, Hoja informativa para la adquisición de la nacionalidad española por Carta de Naturaleza a sefardies, para.no.6, diciembre 12, 2012.
- Anteproyecto de Ley en materia de concesión de la nacionalidad española a los sefardíes que justifiquen tal condición y su especial vinculación con España y por el que se modifica el artículo 23 del Código Civil, Ministerio de Justicia , Ministerio de Asuntos Exteriores y de Cooperación, 7 de febrero , 2014.-Anteproyecto de Ley en materia de concesión de la nacionalidad española a los sefardies, originarios de España, que justifiquen tal condición y su especial vinculación con España, por la que se modifica el artículo 23 del Código Civil y se establece una tasa para determinados procedimientos de adquisición de la nacionalidad española , Ministerio de Justicia , Ministerio de Asuntos Exteriores y de Cooperación, 6 de junio,2014. -Ley 12/2015 ,de 24 de junio, en materia de concesión de la nacionalidad española a los sefardíes originarios de España, Boletín Oficial Del Estado, núm.151 Jueves 25 de junio de 2015, Sec I. Pág.52557.
Parliamentary Debates
Boletín Oficial de las Cortes Generales-Senado www.senado.es
Congreso de Los Diputados Diario de Sesiones del Congreso de los Diputados, Pleno y Diputación Permanente, www.congreso.es
British Legislation
For a general view of the way Britain has dealt with the matter of overseas citizens, see:
-Wikipedia, -British Nationality Law
-Right of Abode (United Kingdom)
- British National (Overseas)
- British Overseas Territories citizen
-British Nationality (Hong Kong) Act
References
Asuero, Pablo Martin, The Spanish Consulate in Istanbul and the Protection of the Sefardim (1804-1913). Quaderns de la Mediterrania, pp.169-178.My text undated; published when the author was attached to the Instituto Cervantes de Istanbul.
Avni, Haim, Spain, The Jews and Franco, The Jewish Publication Society of America, Philadelphia, 1982. (translated from Hebrew).
Carbajiosa, Ana, Hay pocos elementos para saber quién es sefardí, El Pais, June 23,2015.
Balaguer, Esperenza, España contara con 4500 nuevos vuidadanos de origen sefardi en Octubre, eSefarad, September 22, 2015.
Barducci, Anna Mahjar, Spain’s Jew Hating Majority, Gatestone Institute, December 21, 2011
Cohen, José, Los sefardíes y la nacionalidad española, Libertad Digital Opinión, April 23,2013
__________,La ley de nacionalidad para Sefardies, April 19, 2015, Ibid.
_______, Sefardíes aplauden paso dado por España para concederles Nacionalidad, June 12,2015
_______, Embajador de España en Israel: los sefaradíes superarán las pruebas de Nacionalidad, June 12, 2015.
_______,Rafael Catalá asegura en Jerusalén que la ley de Sefardies hace de España una nación mejor, Communiqué-Ministerio de la Presidencia, published the same day, July 5, 2015.
_______, La anhelada vuelta a Sefarad, October 4,2015
_______, Acto solemne con motive de la Ley 12/2015 en materia de concesión de la nacionalidad Española a los sefardies originarios de España, November 30,2015 (source: casareal.es)
Federación de Communidades Judias de España, Nationalidad Española para Sefardies
Garzón, Jacobo Israel, Decepción y Tristeza, ABC, July 29, 2014
Informaria Digital, 7 February 2014
JTA, Ayala
Urges Spain Right Wrong of 1492; Asks Citizenship for Sons of the Expelled, October 15,1933
_________,
Spanish Government Formally Rescinds 1492 Decree
Ordering Expulsion of Jews, December 17,1968
_________,
Spain: Sephardic Jews are Welcome
Back…Maybe, Gatestone Institute, February 12, 2014
_________,
Spanish Anti-Semitism
is Alive and Well, Gatestone Institute, August 1, 2014
_________,
Spain’s Law on Citizenship for Sephardic Jews “Does Not Right a Wrong. June 21, 2015
Kutner Max, Spain Expects up to 200,000 Jews to Apply for Citizenship,Newsweek, June 16, 2015
Mane, Maria Cinta,The Jews in the Crown of Aragon: Regesta of the Cartas reales in the Archivo
de la Corona de Aragon,Jerusalem: Hispania Judaica, Dinur Institute, The Hebrew University of Jerusalem, 1993-1995, Part II.
Mir, Meritxell; Barnal Ana, Sephardic Jews
eager to apply for Spanish citizenship, Washington Post, February 17,2014.
Minder, Raphael, Spain Approves Citizenship Path for Sephardic Jews, New York Times, June 11, 2015
Perednik,Gustavo D. Naïve Spanish Judeophobia, Jewish Political Studies Review, 15:3-4 Fall 2003 (republished by the Jerusalem Centre for
Public Affairs
http://www.jcpa.org
Pereltwaig, Asya in Who counts as a Sephardic Jew? eSefarad, June 17,2014
Pinto, Bensiyon, My Life As a Turkish Jew: Memoirs of the President of the Turkish- Jewish Community 1989-2004,
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Prada, Alfredo, Esta ley repara un error histórico, eSepharad, June 12, 2015
Querub , Isaac, Hay pocos elementos para saber quién es sefardí, El País,
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__________ Palabras de Isaac Querub en el emotivo acto por la ley de nacionalidad
española para Sefardies, eSefarad, December 1,2015.
Rozenblum, Jorge, Restituir no es conceder, La Palabra, June 28,2016, Radio Sefarad.com
Sagnier, Jorge, Trias, Los Judiós Sefaradies y la Patria Española,
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www.fundacionfaes.org/.../20130423220609/los-judios
Siegel, Janice, 500 years after expulsion, Jewish American claims Spanish Citizenship,
The Times of Israel, February 23,2016, www.TimesOfIsrael.com
The Algemeiner, Council of Europe Calls on Spain to
Introduce Laws to Combat Anti-Semitism, June 30, 2015.
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________, Limpieza de Sangre
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Surveys
(1) Anti-Defamation League (ADL),New York: October 2002; April 2004; May 2005; May 2007; February 2009; March 2012; May 2014, and its update in 2015 and the related commentaries by ADL (2) Pew Research Center’s Global Attitudes Project, July 2005; September 2008 and May 2014 ,http://www.pewglobal.org.(3) Observatorio de Antisemitismo, Informe sobre el Antisemitismo en España, (Report on anti-Semitism in Spain) 2010, and 2011, (4) The European Agency for Fundamental Rights, November 8, 2013
Notes
[1] A.k.a Nisim Davit Aseo was born into the Sephardic community of Istanbul. He immigrated to Canada with his family at the age of 17 and has lived there since. He taught university for five years, served as a Judge of the Provincial Court of Newfoundland and Labrador for the next five years and then pursued his legal career successively as Chairman of Appeal boards of the Public Service Commission of Canada and as Crown Counsel at the Federal Department of Justice litigating aboriginal claims. Since his retirement in 2007, he has worked towards establishing the genealogical tree of his family in the context of the histories of the Sefardies of Spain, of the Ottoman Empire/ Turkey and beyond.
[2] ‘Do not spread your legs beyond your bedcover’. The ordinary folks of the Turkish Sephardic community speak and write Ladino the same way Turkish is spoken and written i.e. the alphabet has a letter corresponding to each phoneme.
[3]Ley 12/2015 ,de 24 de junio, en materia de concesión de la nacionalidad española a los sefardíes originarios de España. Boletín Oficial Del Estado, núm.151, jueves 25 de junio de 2015, 1. (The law of 12/2015… in the matter of granting Spanish citizenship to the Sefardies originating from Spain). Unless otherwise indicated, all translations are mine and comprise both formal and free translations. The latter are used in those instances where the text has been stylistically modified or edited without altering its meaning or flavor in order to produce a more accurate English rendition of the meaning.
[4] Instrucción de 29 de septiembre de 2015,de la Dirección General de Los Registros y del Notariado, sobre la aplicación de la Ley 12/2015, de 24 junio, en materia de concesión de la nacionalidad española a los sefardís originarios de España, Boletín Oficial del Estado, no.234,miercoles 30 de septiembre de 2015, https://www.boe.es/diario_boe/txt.php?id...A-2015.This document facilitates the comprehension of the legislation.
[5] Readers who wish to supplement the topics and issues concerning the legislation with additional reading may wish to consult the numerous sets of FAQs (preguntas frecuentes) posted at the following websites: the Federation de Communidades Judias de España (FCJ(E) www.fcje.org/fcje-preguntas-frecuentes/ and https://certificado Sefardies .fcje.org/faq.php ; the Spanish Ministry of Justice, www.mjusticia.gob/cs/Satellite/Portal/es/areas-tematicas/nacionalidad/concesion.... eSefarad, ; Ley de Nacionalidad Española para lo Sefardies: Respuestas a Las Preguntas Frecuentes, June 30th,2015; http://www.misefaradi.com; the website of the Dirección General de los Registros y del Notariado at El Ministerio -Secciones- Nacionalidad answers the foundational questions on the subject and provides all the relevant official documents.
[6] Readers interested in comparing the provisions of the Spanish legislation with those of the corresponding Portuguese one, are referred to (a) Ministerio de Justicia, Decreto-Lei no.30-A/2015 de 27 fevrero [2015] permitindo a concessão de nacionalidade portuguesa, por naturalização, a descendentes de judeus sefarditas (to permit the granting of Portuguese nationality to the descendants of Sephardic Jews [originating from Portugal] (“Portugal 30-A/2015”) https://www.portaldascomunidades.mne.pt/pt and (b) to the websites of the two Portuguese Jewish communities involved in the application process, namely those of the Jewish communities of (i) Lisbon at www.cilisboa.org and Sefardi.naturalization@cilisboa.org, and (ii) Porto at jewishcommunityofporto.blogspot.com/ and portuguesenationality@communidade-israelita-porto.org
[8] Ley 12/2015, op cit.
[9] Regrettably, I am unable to find the note where I jotted down the author of this suggestion.
[10] The first Diaspora occurred in three stages when the Crown failed to protect its Jewish subjects who fled Spain as a result of the popular persecutions that triggered killings and looting of Jewish property that occurred in 1348 and in 1391 and further during the periodic violence that erupted between 1391 and 1492. The third and fourth Diasporas occurred by the expulsion of Jews from Sardinia and Sicily in 1492 and 1493 respectively, then overseas Mediterranean territories of the Kingdom of Aragon. The fifth occurred in the Kingdom of Naples between 1510 and 1540 after the Kingdom passed under rule of Ferdinand II of Aragon in 1503. This Diaspora comprised (a) some of the Sefardies and Jews expelled in 1492 and 1493 who ironically took refuge and settled in the Kingdom, then under the protection of Ferdinand II, despite their recent experiences with the King ; (b) Italian Jews, and (c) , unlike the 1492 and 1493 expulsions, included those who had converted. The sixth Diaspora occurred as a result of the abominations perpetrated by the Spanish Inquisition during the period that stretched from the end of the 15th century to that of the 18th century when a substantial number of Jews converted forcibly or alleged to have converted “voluntarily” fled Spain and returned to Judaism. Spain created the seventh Diaspora during the World War II when the Spanish government, despite the best efforts of some of its foreign officers posted in German occupied territories, acting on their own personal initiatives, failed to save all the Sefardies some of whom already had Spanish nationality or Spanish consular protection or and those who did not could have obtained this protection through the intervention of the government and thus could have been saved. Only some of those left behind managed to survive and reach other safe destinations. Save for the Embassy in Bulgaria, these victims were Balkan Sefardies which comprised the Jews of Salonika, the large majority of whom consisted of the descendants of those expelled from the Iberian Peninsula directly or via Morocco, Sicily, the Kingdom of Naples and directly from Sicily and Italy. Thus the 2015 legislation seeks to correct only one set of two of the many “historical injustices”, not to put too fine a point on it, Spain committed against the Sephardic Jews. Celia Prados Garcia at the University of Granada takes the view that there were only two Sephardic Diasporas, namely; the second and the seventh. cf. La Expulsión de los Judíos y el Retorno de los Sefardies Como Nacionales Españoles. Un Análisis Histórico-Juridico, Dianet.unirioja.es/descarga/articulo/4049868, 2011, p.2124-25. In the premises, with respect to the seventh diaspora, I find the self-congratulatory tone of the in the Preamble to the legislation unpalatable. More specifically, the conduct of the Spanish government in those instances where it had to act on its own initiative, left much to be desired, a situation in part mitigated by a number of honorable and duty bound Spanish diplomats in the territories occupied by the Nazis, who did their very best to save the lives of Jewish Spanish nationals and those under consular protection, not to mention others, in difficult circumstances created by the inertia of the government. Avni, Haim, Spain, The Jews and Franco, The Jewish Publication Society of America, Philadelphia, 1982 (translated from Hebrew) pp.178-199.
[11] By way of illustration, Soeren Kern quotes Michael Freund, the chairman of Shavei Israel (“those who return to Israel”) who in an interview with the Times of Israel said: “Five centuries ago, the expulsion happened partly because the Iberian rulers wanted Jewish assets. Now we see efforts to welcome Jews partly for the same reason,” Spain: Sephardic Jews are Welcome Back…Maybe, op. cit. supra.
[12] Sagnier, Jorge, Trias, Los Judiós Sefaradísy la Patria Española, March 2011, 191; pp.195-196
[13] Asuero, Pablo Martin, The Spanish Consulate in Istanbul and the Protection of the Sefardim (1804-1913) Quaderns de la Mediterrania p.169 (published when he was attached to the Instituto Cervantes in Istanbul).
[15] Decree of December 20,1924 in effect until December 30,1930
[16] The original text reads: “antiguos protegidos españoles o descendientes de éstos, y en general individuos pertenecientes a familias de origen español que en alguna ocasión han sido inscritas en Registros españoles y estos elementos hispanos, con sentimientos arraigados de amor a España, por desconocimiento de la ley y por otras causas ajenas a su voluntad de ser españoles, no han logrado obtener nuestra nacionalidad.”
[17] Notes of January 16/17,1935 and April 7, 1936 pursuant to which Egypt and Greece recognized their respective Sephardic Jewish subjects to be under Spanish consular protection; Decreto-Ley de 29 decimetre de 1948 por el que se reconoce la condición de súbditos españoles en el extranjero a determinados sefardíes, antiguos protegidos de España, Jefatura del Estado , B.O de E .nüm. January 9,1949.The Decree granted Spanish citizenship to the Sephardic families whose names were also included in the Notes of 1935 and 1936, supra. and thus afforded them the opportunity to return to and settle in Spain. Spain was the last western European country to establish diplomatic relations with Israel as late as 1968.
[18] For a preliminary introduction to the emergence and history of this movement, the reader may wish to consult https://es.wikipedia.org/wiki/Filosefardismo; JTA, Ayala Urges Spain Right Wrong of 1492; Asks Citizenship for Sons of the Expelled, October 15,1933.
[19] The 476 years old Edict was in fact repealed by the operation of the Constitution of 1859 and subsequent legislation, save for the long standing regulation that required Jews to obtain official permission to hold religious services which is still in effect, honored in its breach. However, the repeal was not explicitly and publicly endorsed by a Spanish Government. On December 16, 1968, the Spanish government finally acknowledged these legal facts by issuing a formal document which also abrogated the regulation in question. Spanish Government Formally Rescinds 1492 Decree Ordering Expulsion of Jews, JTA, December 17, 1968.
[20] Haim Avni Spain, the Jews and Franco, op cit. pp. 201-214
[21] Asuero, Pablo Martin, The Spanish Consulate in Istanbul and the Protection of the Sefardim (1804-1913), op.cit. supra. Haim Avni, Spain, The Jews and Franco, The Jewish Publication Society of America, Philadelphia,1982 (translated from Hebrew).
[23] For example, see: the surveys of (1) Anti-Defamation League (ADL),New York of October 2002,April 2004, May 2005, May 2007, February 2009,March 2012, May 2014 and its update in 2015, www.adl.org (2) Pew Research Center’s Global Attitudes Project, July, 2005, September 2008 and May 2014 http://www.pewglobal.org (3) Observatorio de Antisemismo, Informe sobre el Antisemitismo en España, (Report on anti-Semitism in Spain) 2011 and 2012 http://observatorioantisemitismo.fcje.org. In the ADL surveys, Spain’ scores of anti-Semitism have been consistently at or very near the top among Western European countries. (4) The European Agency for Fundamental Rights, November 8, 2013. By way of illustration, see also: Perednik, Gustavo D. Naïve Spanish Judeophobia, Jewish Political Studies Review, 15:3-4 Fall 2003 (re-published by the Jerusalem Centre for Public Affairs) http://www.jcpa.org; Barducci, Anna Mahjar, Spain’s Jew Hating Majority, Gatestone Institute, December 21, 2011,http://www.gatestoneinstitute.org; World Jewish Congress, (re-print of the article of Raphael Schutz, published in El Pais at the conclusion of his tenure as Israeli Ambassador to Spain http://www.worldjewishcongress.org/; Garzón, Jacobo Israel, Decepción y Tristeza (Deception and Sadness), ABC, July 29,2014 http://www.abc.es/ and the papers published by Soeren Kern listed in the bibliography; The Algemeiner in Council of Europe Calls on Spain to Introduce Laws to Combat Anti-Semitism, reported that the Council of Europe called on Spain to pass “new and comprehensive anti-discrimination laws…to combat prejudices against Jews, Roma and other minority groups.” The Algemeiner also quoted from the report of the Council’s Advisory Committee on the Framework Convention for the Protection Israeli Diplomat laments hatred and anti-Semitism still present in Spain, July 20, 2011 of the National Minorities that inter-alia stated that “prejudice against Roma, as well as Islamophobia, anti-Semitism and intolerance against migrants, continue to be expressed , notably in the print and audio-visual media, on the Internet ,as well as in political life” and that such laws would make Spain “safer for migrants and Roma people,” June 30, 2015.
[24] For the full text of these reforms see: http://www.boe.es/boe/dias/2015/03//31/pdfs/BOE-A-2015-3439.pdf
[25] Constitución Española,1978, op.cit. Regrettably, I am presently unable to locate the reference for these quotations.
[26] Minder, Raphael, Spain Approves Citizenship Path for Sephardic Jews , the New York Times, June 11, 2015
[27] Rafael Catalá asegura en Jerusalén que la ley de Sefardies hace de España una nación major” (… in Jerusalem Rafael Catalá assures that the law of Sefardies makes Spain “a better nation”.),Communiqué of the Ministerio de la Presidencia, published the same day, in eSefarad, July 5,2015 see also: Catalá defends in Jerusalem the law for the Sefardies ” The Madrid Press, July 5, 2015 (re-published in eSefarad bearing the same datelin(e) Unfortunately the article does not report the specific arguments against which the Minister defended it.
[28] “Embajador de España en Israel: los sefaradíes superarán las pruebas de Nacionalidad” (the Sefardies will overcome the evidentiary requirements for nationality), eSepharad, July 5,2015. Minister of Justice Alberto Ruiz-Gallardón has been quoted as having said that “his nation owed the Sephardic community a debt for spreading the Spanish language and culture around the world.” Regrettably I am unable to locate the bibliographical reference to this quotation.
[29] I venture to think that by any and all standards of governmental bureaucratic efficiency , including the relatively most efficient ones, completing the process of assessing these thousands of applications and for the government to consider them on their respective merits and approve them as if on cue, right on the dot, on October 1 is nothing short of a post-modern miracle. To compile the requisite documentation in order to make the announcement the very next day on October 2, 2015 is the annex to this miracle. The government sought to explain away this matter on the grounds that it would have been unfair to require the applicants to transfer their applications into the new system as permitted by the new law. Balaguer, Esperanza, España contara con 4500 nuevos ciudadanos de origen sefardí en Octubre, eSefarad, September 22, 2015, although, clearly it could have achieved the same result by rendering these decisions on September 29 and publishing them on the 30th.
[30] In order not to confuse the reader with legal terminological distinctions, inconsequential in the context of this paper, every legal provision cited in the text is referred to as “Article” regardless whether the provision cited is in actual fact an Article (such as 1 or 2 etc.) or a section of an Article (such as 1.1 or 1.2 etc.) or a “paragraph” of the Article (such as 1 1(a), 1.1(b). etc.).
[31] The FCJE is officially recognized by the government as the representative of all the Jewish communities of Spain which form the Federation and are registered as religious entities. There also exists a Foundation of the Jewish Communities of Spain. On April 28,1992, the government and the FCJE entered into an agreement of cooperation titled Acuerdo de Cooperación del Estado con la Federación de Communidades Israelitas [now Judias] de España. The agreement was subsequently enshrined in the Law of 25,1992. After the new legislation was enacted on June 24,2015 and prior to its receiving Royal recognition, FCJE announced that it will assist the government in the implementation of the legislation upon receiving “the guidelines” ( the type and nature of which were not specified) to be issued by the Ministry of Justice. The FCJE further undertook to post them on its website http://www.fcje.org/ To date, I have been unable to locate any guidelines on the organization`s website, possibly because no such guidelines were issued in the first instance.
[32] By way of illustration, based on the contents of all the successful applications originating from Turkey, under the previous legal regime of naturalization, the existence of “exceptional circumstances”, were proven by reference to the applicant’s personal links to Spain which in turn was demonstrated by the his or her belonging to a community of Sephardic Jews and phrased as follows: “…su vinculación con España, por su pertenencia a la communidad de judios sefardies, con el consiguiente reflejo cultural en sus costumbres y el mantenimiento del idioma Española.”[he maintained](...“his special link with Spain by belonging to a community of Sephardic Jews which is reflected in his cultural customs and his preservation of the Spanish idiom). “Communiqué- Real Decréto por el que se otorga la nacionalidad Española a los sefardíes (Royal Decree to confer Spanish citizenship to Sefardies ), issued by Mario Saban, president of Tarbut Sefarad, undated, circa. 2006-2010.
[33] Ministerio de Asuntos Exteriores y de Cooperación, Hoja informativa para la adquisicón de la nacionalidad Española por Carta de Naturaleza a Sefardies , Article no.6, December 12, 2012.
[34] The 2004 general elections brought to power the socialist government of Prime Minister Jose Luiz Rodriguez Zapatero. At first, the policy of granting Spanish citizenship by naturalization to the Sefardies proceeded according the existing precedent. However, in 2009, the Prime Minister swayed by his pro-Palestinian, anti-Israeli and anti-Zionist foreign policy and by his publicly expressed personal anti –Semitic animus, he blocked the processing of the applications of the Sefardies until his electoral defeat in 2011. Soern, Kern, Spain: The Most anti-Semitic Country in Europe [in 2010], Gatestone Institute, April 7, 2011 gatestoneinstitute.org. The Zapatero government was succeeded by government of Mariano Rajoy which promptly reactivated the process and ultimately proceeded with the enactment of the new law. see; Soern, Kern, Spain: Sephardic Jews are Welcome Back…Maybe, Gatestone Institute, February 12, 2014; gatestoneinstitute.org
[35] Cohen, José, Los sefardíes y la nacionalidad española, Libertad Digital Opinión, April 23,2013.
[36] Cohen, José Los sefardíes y la nacionalidad española, op. cit.
[37] Experts close to the law’s progress [expressed the view that] “the delays have been due to Madrid’s investigation of potential extra costs to the Spanish taxpayers, a growing concern for a country shrinking its public purse to deal with the debt crisis but the lack of progress has also led some skeptics to believe Spain’s promotion of the law was more of a political gesture.” Sandra Gathmann, JN1TV, Spain, December 17, 2013 (transcript of broadcast).
[38] Anteproyecto de Ley en materia de concesión de la nacionalidad española a los sefardíes, originarios de España, que justifiquen tal condición y su especial vinculación con España, por la que se modifica el artículo 23 del Código Civil (Bill in the matter of the concession of Spanish nationality to Sefardies of Spanish origin who satisfy this condition and their special connection with Spain, amending Article 23 of the Civil Code )
[39] Cnaan, Liphsiz, Move to repatriate Sephardic Jews prompts frenzy but excitement may be premature, JTA, March 10, 2014;Mir, Meritxell, Barnal Ana, Sephardic Jews eager to apply for Spanish citizenship,. Washington Post, February 17, 2014
[40] The concluding sentence of Article 1.
[41] Anteproyecto de Ley en materia de concesión de la nacionalidad Española a los sefardíes, originarios de España, que justifiquen tal condición y su especial vinculación con España, por la que se modifica el artículo 23 del Código Civil y se establece una tasa para determinados procedimientos de adquisición de la nacionalidad española op.cit., Ministerio de Justicia , Ministerio de Asuntos Exteriores y de Cooperación, CM-06-2014
[42] See for example: Congreso de Los Diputados/ Diario de Sesiones del Congreso de los Diputados Pleno y Diputación Permanente, www.congreso.es, pp.1116
[43] Both the gentleman and others often abbreviate his name by ignoring the third. I adopted the same practice.
[44] Querub, Isaac, Hay pocos elementos para saber quién es sefardí, El País, June 23,2014
[45] Kern,Soeren, Spain’s La won Citizenship for Sephardicv Jews “Does Not Right a Wrong, June 21, 2015, Gatestone Institute.
[46] eSefarad, Los judios esperan “una nueva era” con la ley a la que calculan que se acogeran une 90,000 sefardies, June 11,2015
[47] Quoted by Eliezer Sherman, in The Algemeiner, June 12,2015
[48](reported in) La Croix, Les juifs séfarades retrouvent leurs racines espagnoles, June 10,2015 re-published in eSefarad, June 15, 2015
[49] In fact in a newspaper interview he gave shortly after the enactment of the law, after confirming that that Spain is not an anti-Semitic country he went on to say coyly “If there exists prejudices based on ignorance and stereotypes [Italics mine], these cannot be dealt with merely by resorting to the provisions of the Criminal Code but require large investments in education”. However he spoke more impatiently about the Catholic Church of Spain when he said that [the Church] must add to the work of the struggle against prejudice, has got to be more proactive because many of the prejudices against Jews have a religious origin”.(This statement begs the question as to whether a dominantly Catholic society where the Church dominated that society for centuries, in fact until Vatican II suffering from religious anti-Semitism can be one that is not anti-Semitic?) He again reiterated the wish he expressed in 2014 to see the Church to prohibit the religious celebration of the [fictitious] child saint of La Guardia adding that “with the new fresh winds coming from Rome makes this a good time to do it.” (free translation) Carbajiosa,Ana, Hay pocos elementos para saber quién es sefardí, El Pais, June 23,2015
[50] Nacionalidad Española para Sefardíes, FCJE, June 11,2015
[51] “Sefarad no es una nostalgia sino un hogar en el que no debe decirse que los judíos se sienten como en su propia case porque los hispanos judíos están en su propia casa.” Ibid. The concluding sentence of the statement that was left out is: “What matters is not accounting for our mistakes or successes, but the will to project and to analyse the past in terms of our future”.
[52] eSefarad La anhelada vuelta a Sefarad, October 4,2015
[53] For example, see: Cohen, José, Los sefardíes y la nacionalidad española, op. cit
[54] Instrucción de 29 de septiembre de 2015, de la Dirección General de Los Registros y del Notariado, op.cit. sections 1.3.1-1.3.3
[55] The requirements for each of the three types of certificates described in Articles 1.2. (a), (b) and (c) respectively are the production of a certificate (1) signed by the President of the of the Permanent Commission of the FCJE, and (2) failing that, signed by the President or a person with similar authority and power of the Jewish community legally recognised in the country where it is located and in the area where the applicant lives or in the applicant’s native city ; or (3) issued by the competent rabbinical authority that is legally recognised in the country where the applicant habitually resides. Further, in relation to the certificates obtained under Article 1.2 (b) or (c), the applicant is required the produce additional proof set out next below to these articles
[56] Unfortunately the FCJE does not provide the outlines the principles and practices guiding of its decision- making process including its methodology in assessing the relative weight to be assigned to different kinds of evidence
[57] By comparison, the Jewish Community of Lisbon charges 500.00 Euros plus the applicable taxes) to consider an application for a certificate under the Portuguese legislation. The fee is non-refundable, regardless of the outcome of the application.
[58]The FCJE provides detailed FQAs concerning the various legal requirements of the legislation and information about the documents and evidence that must be submitted in
[59] The criteria set out in Article 1.2 (d) to (g) inclusive are: (d) accreditation of the applicant’s use of Ladino or Haketia as the familial idiom ( or idiom with which the applicant is familiar) or other indicia that demonstrate the applicant’s tradition of belonging to this linguistic community; (e) certificate of birth or the “Ketubah” or a matrimonial certificate which states that the marriage was celebrated in accordance with the traditions of Castile; (f) a reasoned statement issued by an entity of sufficient competence to accredit the fact that the applicant's family name belongs to a Sephardic lineage of Spanish origin; and (g) evidence of any other circumstances that reliably establishes applicant’s identity as a Sefardi who originated from Spain. The Ketubah or Ketuva (h) is generally defined as “the classical Jewish religious marriage certificate.” Jewish Virtual Library,Glossary, www.jewishvirtuallibrary.org.
Haketia (Hebrew: חקיטייה, Arabic: حاكيتيا) (also written as Hakitia or Haquití(a) is an endangered Jewish-Moroccan Romance language, also known as Djudeo Spañol or Ladino Occidental (western Ladino), that was spoken and spread throughout the North of Morocco such as in Tetuan, Tangiers and the Spanish towns of Ceuta and Melilla, in the latter of which it has become partially official before being absorbed by modern Spanish. A variant of Haketia, Tetuani, was also spoken in Oran, Algeria”, Wikipedia.
[60] The Preamble refers to the Sefardies’ love for Spain and their special connection to it through their persistence in preserving Ladino. These assertions need to be placed in their proper historical context. Based on my conversations with knowledgeable community elders in Istanbul and confirmed by my reading at the time and since then, the facts of the matter are that the Ottoman Jewish communities (and the Christian ones as well) were self- governing in civil, socio-cultural and religious matters subject to the paramount laws of the Empire. For all intents and purposes, the communities became religious, cultural and linguistic ghettoes, self-segregated from the surrounding communities and from the dominant society. As the men handled all the transactions, problems in with the external world, the women were afforded very limited education and stayed home to raise the children and had really no opportunities to acquire other languages. Therefore, they had no choice but to use the Judeo-Spanish idiom over the centuries .Further, as primary care-givers they perpetuated the use of the language through their children. While the situation somewhat improved with the arrival of the Alliance Israelite schools during the second half of the 19th century, it did not go far enough until the arrival of French, English, German, Italian and American schools and the proper schooling of girls became a shared value of the urban Jewish communities. Nevertheless, until the late fifties, the acquisition of western education did not displace the use of Ladino at home and among friends of the older generation. In my family, this multilingualism resulted in family conversations during which the sentences would begin in Turkish, then switch to Ladino and in time, finally to French or in some other order. When my parents did not want us, the children, to understand what they were talking about, they switched to the language which had not learnt as yet (French and we learned it, they switched to Greek. In Canada, the pattern was modified with the insertion of the English language. I was born in 1940. By the time I was old enough to make sense of the conversations among grown-ups , I did not hear a single member of the community express love for Spain. If anything, when they did talk about Spain, which in my experience was quite rare, that monologue or conversation was invariably about the facts that our forebears had been dispossessed of their homes and possessions, kicked out of Spain practically penniless at the mercy of unscrupulous , extortionist and otherwise cruel sea captains who blackmailed, terrorised their passengers and threw some or all of them overboard when the latter did not respond to the their demands to surrender their (suppose(d) hidden wealth. Geographically speaking, Asya Pereltwaig points out that “…the rise of nationalism in the Balkans, North Africa and the Middle- East , the persecution [and extermination] of Sephardic Jews during World War II and the Israeli policies of promoting Hebrew at the expense of other Jewish languages led to the endangerment of Ladino worldwide. According to Shmuel Refael of Bar- Ilan University, only about 250,000-300,000 people in Israel have ‘some potential knowledge of Ladino …The Etnologue cites even the smaller figure of 100,000 speakers in Israel in 1985 and a total of 112,130 in all countries.” (Italics min(e). Pereltswaig, Asya Who counts as a Sephardic Jew? eSefarad, June 17, 2014
[61] Ley 12/2015, Preamble, op cit.
[62] Bendahan Elias, Part 3.op cit.
[63] Instrucción de 29 septiembre de 2015 de la Dirección General de los Registros y del Notariado, op. cit. para. 1.4.3. A.
[64] The criteria under Articles 1.3 (a) to (f) inclusive are: (a) certificates of study of Spanish history and culture granted by public institutions or by officially recognized private ones; (b) accredited knowledge of Ladino or Haketia; (c) the inclusion of the names of the applicants’ or of their direct ascendants on the lists of Sephardic families protected by Spain(which in the case of the lists of Greek and Egyptian Sefardies incorporated in the Decree of December 29 1948; (d) the applicant’s relationship, to one of the persons enumerated under (c) based on consanguinity. N.B. With respect to (c) and (d) there is only one list of Sephardic families protected by Spain. It is found in Orden Circular no.2217 de febrero de 1949.
The applicants, descendants of Sephardic Jews of the Ottoman Empire, who have the means to access the Spanish archives may also wish to explore the existence of the records concerning the persons provided consular protection or citizenship between 1804 and 1913 cf. Asuero, Pablo Martin, The Spanish Consulate in Istanbul and the Protection of the Sefardim (1804-1913),op cit. and since, as well as under the Royal Decree of December 20,1924;(e) the applicant’s charitable, cultural or economic achievements in favour of Spanish persons or institutions or in Spanish territories as well as their initiatives for the benefit of institutions devoted to the study, conservation and diffusion of the Sephardic culture, and finally (f) any other circumstance that reliably establishes the applicant`s special connection with Spain. Proof of the existence of the personal connection to Spain also be made: (a) by one or more donations to the Spanish Red Cross, to other Spanish charitable institutions, cultural organizations, foundations, universities and colleges or political parties; (b) with one or more subscriptions to political parties, Spanish periodicals or being a member of a cultural centre of Spain abroad or of a variety of Spanish clubs such as sport or cultural clubs; (c) by having an economic connection with Spain such as holding shares in a Spanish company, having work contracts, a dwelling (owning an expensive one is more promising) or other goods in Spain; (d) by having studied in Spain as an exchange student or children who are matriculating or have matriculated in Spain or have or are living in Spain for a period of at least six months, and(f) by being married to a Spanish national. These examples are based on Bendahan, Elias, op cit. and Instrucción de 29 septiembre de 2015 de la Direccion General de los Registros y del Notariado, op. cit 1.4.3 (B) According to Bendahan, the special links can be mentioned in any of the three types of Certificates.
[65] The Institute’s website is http://nacionalidad.cervantes.es/ under the heading of Obtención de la Nacionalidad Española; Pruebas para la obtención de la Nacionalidad Española which offers direct links to DELE(language); http://diplomas.cervantes.es/en/learn_spanish/dele_levels.html and to CCSE ( the Constitution and socio-cultural reality of Spain) while the answers to frequently asked questions concerning the examinations on both subjects are found at https:ccse.cervantes.es/que.
[66] In fact, the Sefardies did not bring with them one but many Spanish dialects and later some Haketia when a segment of the Sefardies who upon their expulsion settled in Morocco, later immigrated to the Ottoman Empire.
[67] Registration may be effected at https://ccse.cervantes.es/user/register while the book of questions may be accessed at https://ccse.cervantes.es
[68] As of the writing of this paper, I am waiting for the acknowledgment of and the reply of the Institute to my letter requesting specific facts concerning the outcomes of both examinations.
[69] Rozenblum, Jorge, “Restituir no es conceder”, La Palabra, June 28,2016, Radio Sefarad.com
[70] El Pais, Spanish King to Sephardic Jews ”How we missed you!” elpais.com, December 1, 2015 (English version translated by Susanna Ur(a); eSefarad, Acto solemne con motive de la Ley 12/2015 en materia de concesión de la nacionalidad Española a los sefardies originarios de España, November 30,2015 (source: casareal.es)
[71] See: Soeren Kern, Spain’s Law on Citizenship for Sephardic Jews “Does not Right a Wrong, op. cit. supra.
[72] The first limb of the two suggested premises will hardly cause the country to be flooded with the returning hordes of Spanish Sefardies, because: First, for Jews, be they Sephardic or not, nowadays, Europe as a whole, is hardly an attractive safe and secure place to settle. Second, the current estimates as to (a) the size of the worldwide Spanish Sephardic population ; (b) the total number of persons who are expected to apply;(c) the total number of persons who will (i) succeed or (ii) might succeed, vary widely or simply cannot be estimated with any degree of confidence. For example, on the estimates for item (a) vary somewhere between two and three and a half millions; whereas the Spanish government has at various times estimated item (b) as 90,000, 150,000, 190,000, and finally 200,000, compared to Querub’s original estimate of 90,000 made on the date of the enactment of the legislation which was subsequently substantially reduced by the FCJE and posted the range 40,000 to 50,000 on its website. eSefarad, Los judios esperan “una nueva era” con la ley a la que calculan que se acogerán unos 90.000 sefardies, June 11, 2015. Then coming to item (c)(i) the government somewhat changed the definition of the 90,000 figure to mean the number of applicants that will succeed. As to the rest, to date there have been no estimates that I am aware of. However, assuming an outlandish scenario where the number of successful applicants will be tenfold of the highest expected number of successful applicants i.e. 900,000 Spanish Sefardies and of those, again using an outlandish estimate that 450,000 (50%) will want to settle in Spain, what we are looking here is in the order of a fraction of the Spanish population of over 46 million. Last but not least, the EU, faced with the prospect of an untenable number of prospective new Spanish cum EU citizens, may well set new rules of eligibility to be a citizen of the EU so as to refuse to grant its citizenship to all the successful candidates that will wish to settle outside Spain. Ironically, this would put a major crimp to the number of applicants whose sole intention in seeking Spanish nationality is to settle elsewhere in Europe.
[73] By most accounts, save for trial lawyers and punctilious bureaucrats, procedural matters are among the most boring of legal subjects, bar none. Accordingly, I have summarized those provisions of the law that would be of interest to the prospective applicants. Rules and procedures are also relied upon as a last resort by officials who could but do not want to do the thing which they are asked to do.
[74] Ley 12/2015 op. cit. Disposición adicional primera. Plazos (Time limits) Article 1.
[75] Ley 12/2015 op. cit, Disposición Adicional duodécima. Acceso a la nacionalidad española en condiciones de iqualidad.
[76] Readers who wish to familiarize themselves with the notarial profession in Spain may wish to consult the following:
http://www.notariosyregistradores.com/web/normas/ley-del-notariado-de-1862/http://www.notariosyregistradores.com/NORMAS/reglamento-notarial-2.htm and
http://notariosyregistradores.com/web/secciones/internacional/variosinter/concesion
[77] Ley 12/2015 op. cit. , Disposición adicional primera.Plazos,para.no.3
[78] The matter is also addressed in the website of the Ministry of Justice devoted to FAQs under the heading Que otras cosas debo saber? Qué pasa si la resolución es denegatoria? Cabe algún tipo de recurso? Dónde, cómo y cuándo puedo interponerlo? (What other things I need to know? If the outcome is a denial of the application? Is there recourse? Where, how and when, may I avail myself of it?) http://www.mjusticia.gob.es/cs?Satellite/Portal/es/areas/tematicas/nacionalidad/concesion Personally, I would recommend that an applicant faced with negative report(s) starting at the preliminary or at the second stage of the notarial assessment (on the assumption that applicants are entitled to receive these assessments) or with a rejection of the application by the DGRN, consult forthwith with Spanish counsel to determine in a timely fashion i.e. within the deadlines prescribed by law, whether or not to seek judicial recourse and against whom.
[79] The applicants also face the risk of retaining lawyers who despite their good reputation may not necessarily be the ones best suited for these kinds of files. In this connection, I am thinking in terms of their knowledge, abilities and skills in handling evidentiary issues and in particular expert evidence. This risk comes with the added complication that the failings of the lawyer will not be necessarily self-evident to their clients, the applicants.
[80] Ley 12/2015 op. cit. Disposición final Quarta -Habilitación (Ministerial powers) op.cit.
[81] I have been unable to find the answer to the questions as to the manner in which one can determine whether one or more such regulations, guidelines etc. have been issued since the enactment of the legislation, and if so, how the official texts may be located on the government’s websites.
[82] Interview given to Radio Sefarad and broadcast under the title of Radio Sefarad entrevista al Ministro de Justicia, www.radiosefarad.com/.Free translation of the text of the replies given by the Minister posted on the website. The text has been edited for sake of introducing a more logical sequencing of Minister’s assurances and promise without changing the meaning and flavor of the text. I trust that the Minister was not merely referring to the reasonable accommodation that must be provided to adult applicants and to minors under 18, pursuant to the special legislative provision to provide applicants with equal access to the citizenship legislation. Ley 12/12/2015, op.cit. Disposition final second and Disposition adicional duodécima. Regrettably, the date of the interview (circa.October.2015) is no longer available as both the actual interview and the text no longer appear to be readily available on the radio station`s website. On the further assurances given by the Minister, readers will find the Instructions issued by the DGRN on September 29, 2015 to be quite helpful.
[83] (a) If these signals are taken at face value, what was then the purpose of setting up such an elaborate and expensive two tier adjudicatory system? Patronage for the notaries? (b) If the government has in mind accepting “whatever type of proof” that “reasonably” establishes Sephardic origin, then why did the government and Parliament insert an elaborate set of requirements and criteria in the legislation? (c) If the government intends to accept such evidence, then what will happen to the independence of the elaborate adjudicatory system of check and balances prescribed by the legislation? (d) Will the admission of “whatever type of proof” risk the introduction of inconsistencies into the process? (e) What will happen if the Minister’s successor or the succeeding government does not subscribe to the current Minister’s approach and insists on having the process operate strictly by the book? (f) Why is the Minister concerned about applicants who for whatever reason became non-practicing Jews and seemingly intent to make their lives easier? (g) How could the government do everything to facilitate the presentation of the applications through consular offices, when the legislation quite explicitly provides that the applications must be submitted electronically to a central location in Spain? (h) In order to achieve this last objective does the Minister or the government intend to deem or designate all applicants who wish to handle their applications through the local consulates, as being incapacitated as defined in the law and therefore entitled to special accommodation? Where will all this end? Is the Minister’s interventionist stance indicative of the government’s intention to generate a number of “feel good” cases for the purpose of scoring public relation points, as it did on October 1, 2015 by approving over 4,000 applications, some of which had been languishing since as far back as 2005?
[84] El Sefarad, Palabras de Isaac Querub en el emotivo acto por la ley de nacionalidad española para Sefardies. December 1,2015. The original text reads:”…la amplitud de los medios de prueba….Nuestro deseo seria que los elementos más exigentes de dicha Ley pudieran compensarse con una interpretación equilibrada y sensible por parte de los agentes responsables de su aplicación.” On the matter of the relative weight of the requirements and of the criteria, by way of example let’s look at those set out in paragraphs (d) (e) and (f) of Article 1.2 . Assuming that the applicants are required to prove one of the criteria set out in each of these three paragraph, then the question is; whether an ordinary birth certificate in paragraph(e) will carry the same weight as that assigned to the accreditation of the fact the applicant uses Ladino as the family idiom (or is familiar with it) in paragraph (d)? The corollary question is whether all the criteria stipulated in each of these paragraphs carry equal weight? Again, taking paragraph (e) as an example, will an ordinary birth certificate carry the same weight as a Ketubah or a matrimonial certificate that proves that the applicant’s wedding was celebrated according to the old traditions of Castile? And the questions go on across practically all of the evidentiary requirements.
[85] FCJE takes the position that applicants do not need a lawyer or an agent “to initiate the application and states that ”there are several departments (the identity and affiliation of which are not mentioned) which specialize in these types of procedures that can help the applicants.” Speaking for myself, doing legal business in another country with a different legal system without the services of a lawyer is akin to entering the jungle unarmed or otherwise unprotected , without the services of an experienced guide or for that matter without ready access to emergency medical services. My view of the matter is borne out by the following two estimates in addition to that of Parliamentarian Mr. Garcia. The totals provided in each of these three estimates include considerable expenditures for legal services by implication or explicit reference to legal costs. Thus, the head of the consular section of the Spanish Embassy in Tel-Aviv estimates the total expenses to add up to least 4,000 Euros. The Israeli Channel 2 TV news provided a minimal estimate of NIS 20,000 (US$5100). It includes NIS 6,000 for a Spanish language course; NIS 5,000 to attend at the notarial hearing in Spain; NIS 4,000 in notary fees; and up to NIS 10,000 in legal fees, which constitute 50% of the total expenses. In the Ministry of Justice’s FAQ site, the government has studiously avoided providing a straight forward answer cum estimate on the question concerning the total cost of going through with the application, or providing an estimate of the total costs. At the end of the day, for those who are wealthy or who are prepared to beg and borrow whatever is needed to finance the application, the ultimate decision to apply and to persist with the application or not, may well depend, particularly for the otherwise disadvantaged on whether the applicant is willing to endure ‘las sekatinas’ (Ladino, bothers), which the application will entail and, if so, on the number of such sekatinas the applicant is willing to put up with and hopes she or he is capable of enduring.
[86] For a journalistic survey of the motivating reasons, see: Mir, Meritxell, Barnal Ana, Sephardic Jews eager to apply for Spanish citizenship, op.cit. One Israeli wit is reputed to have said that a Jew can never have enough passports, while the old business mogul and wit Ishak Alaton of Istanbul is reputed to have said “a Jew must always keep his hat available and his suitcase full and on the ready at all times.”
[87] In Doreen Alhadeff’s case, it took the concerted efforts of the FCJE and the honorary Consul of Spain for the Pacific Northwest to make sure that Mrs. Alhadeff met all the requirements of the law.
[88] I can almost hear my parents and their Sephardic friends from the old country saying about the new law: Ke es esto? Ken kere sekatinas de kavesa y pagar los ojos de la kara para esto! Para kualo? Para nada. Nada. Ke ay aya ke no tenemos aki? Nada. Si kero visitar la Espania, ken me va refusar? Ke keremos enkaşarmos en estas kosas? Ayde, ya basta. (What is this? Who wants the headaches and to pay so much (the eyes of the fac(e) for this? For nothing. Nothing. What is there that we do not have here? Nothing. If I want to visit Spain who is going to refuse me? What do we want to get involved these things?
[89] The notion of citizenship without the right of permanent abode is not a novel idea. In one form or another, it has long been a feature of British policies and legislation concerning nationality cf. References under the sub-heading of “British Legislation” and heading of “Legislation.”
[90] It did so by resorting to words like “nostalgia”; “Spaniards without a country,”“[Spain’s] ambassadors“ and “spreading Spanish language and culture around the world”.. To the best of my recollection and knowledge, I did not hear a single solitary Sephardic Jew use these terms and phrases in relation to the members of the community in Turkey. Further, even before my time and certainly by the time I was growing up both adults and students were rather embarrassed by the continued use of Ladino and wished the members of the community would speak, write and publish in a [proper] modern language. On the other hand, they were not beneath using such vocabulary and making up fake slogans when the situation called for. One of the better known such slogan is that uttered by Isaac Alschen Saporta: Españoles fuimos, españoles somos y españoles seremos (Spanish we have been, Spanish we are and Spanish we will be)during the lecture he delivered in the Ateneo of Madrid on December 2,1916 while he was in Spain as the leader of the Sephardic Greek communities, desperately trying to secure consular protection for members of these communities against the depredations of Greek government and locals. Another such slogan was: Nunka dejarmos sentirnos Españoles. (We will never stop feeling Spanish).
[91]. Some in the Spanish press pointed out the coincidence of the timing of the legislative project with that of the Palestinian Authority’s application to the United Nations for admission to the organization as an observer state and the anticipated government decision to vote in support of the application. From this perspective, some characterized the legislation a guiño (friendly wink) to Israel a quid pro quo of sorts for supporting the Palestinian Authority’s bid, while others argued that the citizenship project may well end up upsetting Israel as well as some other countries, presumably referring to those in Northern Africa).