The United Sections intervene to clarify cases of loss of Italian citizenship “iure sanguinis”


by Marco Mellone*

With the recent rulings n. 25317 and no. 25318 – which the Court itself does not hesitate to define as character “epochal” – the SUs carry out a careful and in-depth work of reconstruction of not only internal sources, but also and above all of the foreign legislation referred to and its practical application

The United Sections of the Court of Cassation published two important judgments on 24 August 2022 “twins” ( no. 25317 And no. 25318 ) both concerning the matter of Italian citizenship by right of blood (iure sanguinis).

The intervention of the United Sections was particularly awaited given that several hundred appeals presented by the Ministry of the Interior were (and are) currently pending before the Court of Appeal, all concerning the same legal issue.

The case before the Supreme Court

There Italian citizenship by right of blood it is transmitted without generational limits. Consequently, if one proves to have an Italian ancestry, even a very distant one (with the only limitation that he died after the proclamation of the Kingdom of Italy and that he never lost his Italian citizenship while alive), it is possible to obtain the recognition of Italian citizenship iure sanguinis even after many years and many generations.

This is what some Brazilian citizens, descendants of an Italian citizen who emigrated (like millions of our other compatriots) to the American continent at the end of the 19th century, had asked, who, after documenting the chain of Italian descent, had turned to the Ordinary Court of Rome.

However, the Ministry of the Interior (contradictory in this type of judgment) had objected to the loss of Italian citizenship by the emigrant ancestor. In particular, according to the ministerial thesis, this fellow citizen of ours would have been in Brazil in the year 1889, when the Brazilian state adopted decree no. 58-A of 14 December 1889, with which he effectively invited all emigrants present on Brazilian territory to declare within a period of six months (later extended) the will to maintain their citizenship of origin, otherwise they would automatically be considered Brazilian citizens . From the failure to present this declaration, the Ministry claimed that the emigrant ancestor had acquired Brazilian citizenship and, therefore, had lost his Italian citizenship. And indeed, pursuant to article 11 of the Civil Code of 1865, n. 2 (applicable ratione temporis to the case from here) whoever had “obtained citizenship in a foreign countryhe lost his Italian citizenship.

The Court of Rome rejected the ministerial exception, also because the descendants had produced a certificate from the competent Brazilian authority which declared that the emigrant ancestor had never acquired Italian citizenship (CD. Negative certification of naturalization).

However, the first instance decision which recognized the Italian citizenship of the descendants was overturned by the Court of Appeal of Rome with sentence no. 5171/2021 of 07/14/2021. In essence, the Court of Appeal held that theobtaining foreign citizenship could also take place in tacit form and, therefore, for not having expressed a will contrary to obtaining foreign citizenship (nor was the certificate of non-naturalization produced by the interested parties an obstacle, given its generic nature). Furthermore, the Court of Appeal maintained that even the son of the emigrant ancestor, already born on Brazilian soil and considered jure alone Brazilian citizenhad tacitly lost any Italian citizenship transmitted iure sanguinis from the fathergiven that, at the age of majority, he would not have renounced his Brazilian citizenship in favor of the Italian one, thus demonstrating his implicit will to lose all ties with Italian nationality.

In support of these theses, the Court of Appeal referred to the effectiveness principleof citizenshiparguing that having always lived and worked in that country (even equating mere work in the Brazilian fields, to which our emigrants were often destined, on a par with public employment abroad and, therefore, to a further hypothesis of loss of Italian citizenship pursuant to article 11, third paragraph, of the Civil Code of 1865) were criteria indicative of the “tacit” choice in favor of Brazilian citizenship.

The argumentative system of this decision of the Court of Appeal of Rome was actually contradicted by various decisions of the same Court of Appeal of Rome (different section) which, on the same legal issue, aligned with the position expressed by the Court of Rome, also ordering the Ministry of the Interior to pay the costs of the proceedings (ex multis, sentence n. 6640/2021, no. 1496/2022, no. 4153/2022, no. 4707/2022 and no. 4711/2022).

Nonetheless, the Ministry of the Interior persisted in presenting a considerable number of appeals, relying on the favorable precedent and inducing the Supreme Court, before which in the meantime the aforementioned contrary decision of the Court of Appeals had been challenged, to provoke a rapid and to United Sections, in order to definitively clarify the legal question.

Reasons of the Supreme Court

As proof of the importance of the pronouncement in question, the same Court of Cassation does not hesitate to define the character decision epochal“, given the large audience of potential interested by the legal question at stake.

And also in the light of the delicacy of the question, the Supreme Court carries out a careful and in-depth work of reconstruction of not only internal sources, but also and above all of the foreign legislation referred to and its practical application. Thanks to this work, the Court of Cassation manages to unravel some crucial issues.

Primarilythe cases of loss of citizenship are limited to the cases expressly provided for by the law of the state whose citizenship is being discussed. In other words, the choice to evaluate a certain behavior for the purpose ofacquisition or of loss of status civitatis belongs solely to the national legislatorhaving no relevance the legislative choices made by other legislators who can decide who to consider “own” citizens, but they cannot condition the analogous legislative choices of the other states.

In other words, the adoption of criteria that refer to the principle of effectiveness (here actually declined in its dimension “internal” and not in the sense “external“that is, as a rule of public international law to settle disputes on citizenship between states, on which there is no unanimity of views in doctrine) is a choice that belongs to each national legislator and, in the concrete case, theItalian order has always expected cases of loss of citizenship which they imply behaviors “active” and “volunteer”. In this sense, therefore, the verb “get” used by article 11 n. 2 of the Civil Code of 1865 (the meaning of which was later confirmed by the subsequent article 8 of Law n. 555/1912), differently from what was claimed by the Court of Appeal which instead had valorised the mere silence of the emigrant ancestor (moreover, at the time the Italian government protested against the legal treatment reserved for its compatriots). Not surprisingly, the same conclusions had been reached Court of Cassation of Naples in the distant 1907 in the only case (at least as far as known) in which there was discussion about the relevance of great Brazilian naturalization” in the Italian legal system.

Secondly, the Supreme Court excludes that, also on the basis of the same Brazilian legislation, the emigrant ancestor had actually acquired the Brazilian citizenshipgiven that the effective acquisition of the rights and duties associated with the new status civitatis was linked to a case of progressive formation which provided, in addition to the behavior “passive” (determined by the failure to declare maintenance of the citizenship of origin), also to further activities (these qualify as “active”) such as registration on local electoral rolls.

The unlawfulness from the substantive point of view of the contested decisions was also accompanied by one procedural illegitimacygiven that the loss of Italian citizenship had been substantially proven through simple and general assumptions, and in contrast with a public document issued by the foreign state which attested exactly the opposite. Also for this reason, the Supreme Court reiterates that also in terms of Italian citizenship (indeed even more so in relation to such a central status in the life of a person and of a legal system) it is necessary strictly apply the burden of proofdue the descendant has the burden of proving the original attribution of Italian citizenship and the uninterrupted transmission of the same up to the same and to anyone who wants to plead a circumstance impeding or extinguishing this right, demonstrate the relative circumstances.

The various argumentative paths – very briefly summarized here – have therefore led the Supreme Court to the elaboration of four important and clear principles of law which are certainly intended to shed light on cases of loss of Italian citizenship by right of blood.


* By Atty. Marco Mellone, Mellone Law Firm

The United Sections intervene to clarify cases of loss of Italian citizenship “iure sanguinis”