Nueva sentencia del Tribunal Supremo italiano, la "cuestión de menor importancia" y sus efectos sobre el derecho a la nacionalidad por ascendencia

Background and Overview

There has been a new ruling from the Cassation Court (Italian Supreme Court), one of the highest courts in Italy, (Decision 17161 of June 15, 2023) that could affect huge numbers of people seeking citizenship by descent, both through courts and administrative lines through consulates/comuni.  To comprehend the recent ruling, it is essential to trace the origins of the jus sanguinis (JS) principle in Italian citizenship laws. The rich history of Italian citizenship laws can be traced back to the Civil Code of 1865, which played a foundational role in shaping the rights and responsibilities of citizens in the newly formed Kingdom of Italy. As time passed, these laws evolved significantly, introducing important changes in how citizenship is acquired, lost, and interpreted, particularly concerning minor children. In this paper, we will meticulously explore the key Italian citizenship laws, with a specific emphasis on the treatment of minor children as citizens. However, the centerpiece of our discussion will be the recent groundbreaking Court of Cassation ruling and its far-reaching implications on the contentious "minor issue."

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Understanding the Civil Code of 1865

The Italian Civil Code of 1865 was groundbreaking, establishing key principles related to citizenship in Italy. Notably, it introduced the concept of single citizenship and recognized the oneness of citizenship for a family derived from the father. According to Article 4 of the code, "È cittadino il figlio di padre cittadino" (Simply put, the child of an Italian father is also Italian). Conversely, Italian citizenship was lost if a person obtained citizenship in a foreign country. In such cases, the spouse and minor children of the individual losing citizenship would become foreigners, unless they continued to reside in Italy.

To sum up, the principles outlined in the 1865 law can be distilled into three key tenets: 1) Children born to Italian citizen fathers inherit Italian citizenship; 2) Birth in countries following the principle of ius soli does not automatically result in the loss of Italian citizenship; 3) Italian children residing with their fathers, or those who subsequently become part of their fathers' households, lose their citizenship when their fathers undergo naturalization, regardless of the child's place of birth. These fundamental tenets carry significant weight, as they are not only the cornerstones that informed decisions in numerous 1948 cases, but they are also central to the recent pronouncement by the Court of Cassation.

Repercusiones en los hijos menores

From the Civil Code of 1865 until 1912, the citizenship of a minor child was always tied to that of their father (with exceptions when children remained in Italy while their fathers were abroad). For instance, a child born in a country that grants citizenship by birth (ius soli) would not lose their Italian citizenship because they inherited it from their father, and the father's citizenship was paramount. However, if the father later became a foreigner through naturalization, the child would lose their Italian citizenship.

ARTICLE 7 OF LEGGE 555/1912 - An Important Reform

The crux of many JS cases and the Cassation decision lies in Article 7 of the 1912 law and its relation to Art 12(2) of the Civil code of 1865.

Article 7 stated that an Italian citizen born and residing in a foreign country, where they are considered citizens by birth, retains Italian citizenship. However, once the child reaches the age of majority or is emancipated, they have the option to renounce their Italian citizenship. This provision was understood to protect children born with dual citizenship (ius soli) and safeguard their Italian citizenship until they reach adulthood.

Art 12(2) of the same law reinforces the principle of unified citizenship for the family, as initially established in the Civil Code of 1865. According to this article, non-emancipated minor children of individuals who lose citizenship become foreigners if they reside with a parent who either holds foreign citizenship or exercises parental authority in a foreign state.  Article 7 approaches the issue from the perspective of the minor child, safeguarding their citizenship, while Art 12(2) focuses on the father's loss of citizenship and its impact on the family. As a result, these articles seem contradictory, leaving room for alternative interpretations. Nevertheless, substantial evidence supporting the widely accepted interpretation of Article 7 can be found in various sources, including circolari, council of state opinions, and even in the recorded debates during the formulation of the law itself.

Sentenza della Corte Costituzionale n 30 del 28 gennaio 1983

In 1983, the Italian Constitutional Court declared provisions in the 1912 law that only considered the father for citizenship as unconstitutional. This landmark decision affirmed the principle of gender equality, replacing references to "father" with "father or mother" in the law. However, this ruling only applied retroactively to the 1948 constitution, not back to the inception of the 1912 law.

NEW Cassation Case n. 17161 passed June 2023 - Challenging the "Minor Issue"

On June 15^th 2023, the Cassation Court ruling  declared that an American-born child lost Italian citizenship when the Last Italian-Born-and-Registered Ancestor (LIBRA) naturalized after 1912, while the child was still a minor. This decision marks a significant departure from well-established interpretations.

In this case, the court dismisses the defense that Article 7 of 555/1912 safeguards a minor child from loss of citizenship under Article 12(2), deeming it "unfounded." According to the court, Article 12(2) takes precedence, rendering the provisions of Article 7 inapplicable. The court characterizes Article 7 as a mere protection against citizenship loss for minors born in countries granting citizenship through birth (ius soli)  , a principle already established in the Civil Code of 1865. Consequently, the court indirectly asserts that Article 7 is redundant, reverting to the understanding of unified citizenship from the Civil Code of 1865. However, as seen earlier, the claims about the interpretation of Article 7 are not "unfounded"; rather, they have been the prevailing interpretation since the inception of the law. On the other hand, the long-standing 1912 interpretation relies primarily on parliamentary debates and the persistence of the Ministry, which may be subject to contextual considerations or potential ulterior motives. Interestingly, the court cites Art 5 of 123/1983 to justify the historical treatment of dual citizenship, although it is well-documented that Art 5 of 123/1983 does not apply to those protected under Article 7. Thus, the court appears to disregard the significance of Article 7. It is worth noting that the Cassation Court is not bound to consider previous rulings, opinions, or ministry circolare in making its decision. However, the court's conclusion stands in direct contrast to the previous understanding of the laws involved.

It is essential to recognize that the longstanding interpretation of 1912 rests solely on parliamentary debates and the Ministry's persistence, which may be subject to contextual influences or ulterior motives. The recent Cassation Court ruling created a stir in the interpretation of Italian citizenship laws. The court claimed that Article 7 of 555/1912 does not protect a minor child from losing citizenship under Article 12(2) of the same law. This decision challenges the long-standing interpretation that Article 7 shields minors with dual citizenship (ius soli) from losing Italian citizenship due to their parents' naturalization. The ruling argues that Article 12(2) takes precedence and, as a result, Article 7 becomes virtually useless.

Ramificaciones futuras

To understand the ramification of the Cassation ruling one must understand the Italian legal structure. Italy is a “civil law” country, and the courts are not bound by the decisions of other courts, even if they are superior. The jurisprudence has a considerable importance and in particular, the decision of the high court of cassation usually judges the decisions of other courts. The courts are independent of other organs of power (Article 104 of the Italian Constitution). Judges are selected by public deliberation and are not elected (Article 106 of the Italian Constitution).   For civil litigation, three different levels of jurisdiction are granted. The first instance is the Civil Court (or the “Justice of the Peace” for disputes with a value of less than 5,000 Euro). The second instance is the Court of Appeal (or the Civil Court in the case of a judgment of the “Justice of the Peace”), which re-examines the facts and the application of the law of the case. The third instance is the Court of Cassation, whose decision is limited to re-examining the relevant law applied to the dispute in limited cases (Article 360 of the Italian Code of Civil Procedure).  

The recent ruling from the Court of Cassation regarding “minor issue” holds finality, as it is the highest court of appeal in Rome and cannot be subject to further appeals. This ruling deviates from the usual practice of the Court of Cassation, which typically focuses on re-examining the relevant law applied to the dispute, rather than interpreting the law itself, akin to the approach of the US Supreme Court.

Currently, the recent ruling has not directly affected ongoing court cases or administrative proceedings. As previously mentioned, the Italian jurisdictional system treats each case independently, meaning that a single ruling does not automatically establish a binding precedent for future cases. However, the decisions of the Court of Cassation and other higher courts hold substantial authority and can significantly influence future judgments in similar cases, serving as guiding interpretations for judges and officials. This trend of alignment with the Cassation ruling by lower courts may present a potential cascade effect in future rulings.  Moreover, the Ministry now possesses substantial justification to issue a Circolare aiming to align the Comuni and Consulates with the recent Cassation ruling. With the weight of the court's decision behind them, the Ministry could easily and rightfully cite the ruling as grounds for a new interpretation of Article 7. It is crucial to understand that the Ministry's ability to implement this change lies in the fact that the actual law itself has not undergone any modifications; rather, it is merely an interpretation of certain ambiguous aspects. This grants the Ministry the flexibility to adopt whichever interpretation they deem appropriate.

It is important to differentiate this situation from a 1948 decision, where the Ministry was required to adhere strictly to changes in the actual law, as mandated by the introduction of the constitution in 1948. Consequently, the constitutional law cannot be retroactively applied before that date, except within the framework of the judicial system. Nevertheless, the Ministry has previously aligned itself with Cassation rulings, as seen in the case of the Great Naturalization issue in Brazil. This demonstrates the Ministry's past willingness to take into account and adopt the court's decisions when they align with their objectives and interpretations.

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Conclusión

The complexities of Italian citizenship laws, particularly concerning minor children, have been a subject of debate and interpretation. The recent Court of Cassation ruling has added new dimensions to the "minor issue." While the ruling is not binding, its potential implications are significant. Understanding the historical context and interpreting the laws accurately are crucial to ensure fair and just treatment for individuals navigating the Italian citizenship system. As this issue continues to evolve, we will ensure to keep you updated on any further developments and clarifications from the relevant authorities.

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The Non-Legal Jargon

So, what exactly does this all mean?

• The ruling asserts that the original '1912 rule' does not safeguard the Italian citizenship of a minor. Put differently, the court's assertion signifies that regardless of the specific date, if your ancestor of Italian origin acquired citizenship while the succeeding in line was below 21 years of age (or under 18 years of age post the year 1975), the lineage's continuity is severed. The earlier construction of this regulation pertained solely to instances where the Italian-born forebear naturalized before the year 1912.

Is this now the legal precedent?

• Italian courts operate independently where the Italian jurisdictional system treats each case independently, meaning that a single ruling does not automatically establish a binding precedent for future cases. And, while this ruling lacks strict legal binding, it's important to note that it doesn't establish a precedent in the same manner as the US legal system. Nevertheless, its implication is that lower courts are now more inclined to rule against cases involving the "minor issue." This could potentially lead to the Ministry incorporating the ruling into its defense strategies
• Historically, administrative processes involving consulates and comuni have generally remained unaffected by negative consequences stemming from the "minor issue." However, in light of this ruling, there's a possibility that the Ministry may issue a circolare, providing instructions to consulates and comuni to reject applications in situations where the LIBRA (Lineage Italian Born Relative Acquisition) naturalized while the US-born child was a minor.

Why are there separate age considerations (18 and 21)?

• Prior to 1975, Italy considered age 21 to be when you stopped being a minor (and therefore subject to this policy). [Afterwards 1975 it dropped to 18]

So, now what?

• No one knows what will happen yet. There are still too many unknowns,  nothing has changed as of today and the effects of this ruling may take a long time to play out. It is crucial to understand that the Ministry's ability to implement this change lies in the fact that the actual law itself has not undergone any modifications; rather, it is merely an interpretation of certain ambiguous aspects. Italy has no case law, judges are independent. Court of Cassation and appeal judgements work in different areas and judges are free to decide in their own way. This grants the Ministry the flexibility to adopt whichever interpretation they deem appropriate.

Should I still apply?

• If you happen to fall under this “minor issue” get your applications in ASAP. If you have multiple Italian Born Ancestors, check to see if there are other qualifying lines available.

What are The Italian Citizenship by Descent & Law Professionals Saying?

Understanding the 1912 Ruling and your Italian CBD Options

Join us for a live Q & A webinar with US based Italian Citizenship by Descent Expert Roz Marino, and Italian Law firm