On December 24, 2021, the Italian parliament approved a law (no. 206/2021) which is going to reform the state’s judicial system and bring a number of changes to civil lawsuits, including 1948 cases. In particular, the new provisions set forth in art. 36 of law no.206/2021 became effective on June 22, 2022. These provisions allow other courts – aside from the Court of Rome – the ability to hear 1948 cases. More specifically, the law establishes that “if the petitioner resides abroad the lawsuit must be filed at the court that covers the jurisdiction of the Italian father, mother or ancestor’s municipality”. There are several reasons behind this new law and a number of potential implications. It will be the aim of this article to analyze these and to provide you with an explanation of how you qualify for dual citizenship under the 1948 rule with a court case.
Arguably, one of the most important functions of any legal system is to enforce the laws in the society it governs in order to respond effectively to social, economic, technological, moral and political challenges. It goes without saying that society does not remain static, and thus the legal system and the laws it produces need to be relevant in order to be effective. This also applies to citizenship law, which has evolved since the very foundation of the Kingdom of Italy on March 17, 1861, and has become increasingly favorable to individuals seeking Italian citizenship by descent, thereby reflecting the needs of an evolving modern Republic. But let us briefly provide you with the laws regulating citizenship rights that have been implemented in the past century.
The first law regulating the acquisition of Italian citizenship in detail came into effect on June 13, 1912. This law included provisions designed to protect the citizenship rights of immigrants’ children who had left Italy during the diaspora in 1800. According to this law, children who were born outside of Italy were Italian citizens by birth right if their father was still an Italian citizen at the time of their birth (i.e., if the father had not yet naturalized in a foreign country). At that time only men were allowed to pass their citizenship on to their children. This law did not apply to women and therefore children born to Italian women were not considered Italian citizens. It was only after June 2, 1946 (when Italy became a Republic) and more specifically on January 1, 1948, when Italy’s constitution came into effect, that women were given the same rights as men with regards to the ability to pass citizenship on to their children. Therefore, under the new constitution, Italian women were allowed to pass their Italian citizenship only if their children were born after January 1, 1948. This is why if your female ancestor gave birth to her child prior to January 1, 1948 you can only claim citizenship retroactively via a judicial proceeding and file a 1948 case. On the other hand, if there is a female ancestor in your Italian line who gave birth to her child after January 1, 1948, you can file your citizenship application at an Italian consulate or at a municipality in Italy.
The precedent to claim Italian citizenship retroactively was set in 2009 when the Court of Rome stipulated that the principle of gender equality established in the constitution should be applied retroactively. This principle was also extended to the law passed before the Italian constitution was issued. Therefore, the Court affirmed that female ancestors could pass their citizenship on to their children provided that they did not voluntarily naturalize before their child’s birth.
The Office of the Ministry of Interior is the counterpart in lawsuits filed for 1948 cases and these are dealt with before the Court of Rome. However, this has changed now. In particular, the law that was published on the official journal of the laws of the Italian government (“Gazzetta Ufficiale”) on December 9, 2021, which came into effect on December 24, 2021, states that when “the petitioner resides abroad, the lawsuit must be filed at the court that covers the jurisdiction of the Italian father, mother or ancestor’s municipality of birth”. This means that as of June 22, 2022 it is necessary to file 1948 cases in the courts in the regional county seats that cover the jurisdiction of the municipality where the applicant’s Italian ancestor was born. However, the new provisions only apply to cases filed after June 22, 2022 as the law became implementable 180 days after becoming effective on December 24, 2021.
Arguably, one of the reasons behind the reform is to improve the efficiency of Italy’s judicial system. This will be done by lightening the workload of the Court of Rome, where all 1948 cases have been filed to present. The aim is to reduce the overall processing time for lawsuits by 40%. Nevertheless, it is also worth pointing out that the courts in the regional county seats in Italy have different processing times and jurisprudences, thus every lawsuit will need to be carefully assessed prior to it being filed at a specific court.
Although there is a degree of uncertainty as to the implementation of the law in various courts in Italy, it is fair to argue that the success rate of a 1948 case will most likely remain unvaried; this is because courts tend to grant citizenship in any lawsuit filed after the precedent was established in 2009. Furthermore, generally speaking, the Italian government no longer represents itself in court, and state attorneys no longer represent the Italian Ministry of the Interior. Nevertheless, it is important to note that every case is unique, and each court has the power to assess whether an applicant meets the requirements for dual citizenship.
As for the application process per se, in order to file a 1948 case the petitioner will need to retrieve certified copies of his/her family’s vital records (i.e., birth, marriage, divorce and death certificates) and the naturalization records pertaining to the ancestor who was born in Italy. If the woman (who was born in Italy) through whom the applicant is claiming citizenship did not naturalize, the applicant will need to retrieve a Certificate of Non-Existence of Records from USCIS (U.S. Citizenship and Immigration Services) and a Letter of Negative Search from NARA (the National Archives and Records Administration) or from the county, which states that the individual in question was never naturalized. All the records will need to be authenticated with an Apostille and translated into Italian.
Contrary to applying via an Italian consulate, the translations of the documents will need to be certified prior to being submitted to the court. In addition to the cost of retrieving and authenticating the vital records, which is dependent on the specific state responsible for issuing them, the petitioner will need to cover the costs of certifying the translations. The cost will depend on the number of vital records that need to be translated and, consequently, on the number of revenue stamps that are needed to certify each translation. On average, the cost of certifying the translations of all the vital records varies between €200 and €500. Generally, the most straightforward way to obtain the certifications is to provide the clerk of the court with the documents. In addition to this, the cost of filing a lawsuit is €286. Once the lawsuit has been filed, the case will be assigned to a judge who will schedule the first hearing. The waiting time varies greatly depending on the availability of the judge but it can range from a couple of months to 18 months approximately. During the first hearing, the judge will examine the petitioner’s vital records, and if no additional documents are required, the decision will be made whether to grant or deny the applicant’s claim to citizenship on the same day on which the hearing is held.
If the case is won and the court officially recognizes the applicant as an Italian citizen, the ruling will be filed with the clerk of the court, and the attorney who represented the petitioner in court will be notified. The attorney will need to wait 60 days for the judge’s decision to become final and thus no longer be subject to appeal. When that period of time elapses, the applicant will be able to request a copy of the final judgment with an official seal, which indicates that the ruling is final (“sentenza con passaggio in giudicato”). The final judgment will then need to be registered through the Italian consulate which covers the jurisdiction where the applicant resides. The consulate will then send the certified copy of the judgment, together with a certified copy of the petitioners’ birth certificate (which the court gives back to the applicant) to the municipality in Italy where the applicant’s ancestor was born. Finally, when the birth certificate is registered, the applicant can formally be considered an Italian citizen. If the applicants reside abroad, when they register the final judgment, they will also be able to register with the AIRE (Registry of Italian Citizens Residing Abroad) and apply for an Italian passport at the Italian consulate which covers the jurisdiction where they reside.
We hope that this article has provided you with an insight into 1948 cases and into the new laws that will affect these as of June 22, 2022. If you need further information about applying for Italian citizenship via a 1948 case please do not hesitate to contact us at [email protected]. We will be happy to help you.
