This article will address a frequently asked question: Is it possible to choose the judge who will preside over your 1948 case? Before we begin, it is useful to provide an overview of what a 1948 case is.
A 1948 case is one avenue through which applicants can pursue Italian citizenship by descent. And refers to cases that can be filed in Italy by those wishing to obtain Italian citizenship through an Italian-born female ancestor. Historically, Italian citizenship law denied women the right to pass citizenship on to their children. It was only once the Italian Constitution came into effect on January 1, 1948, that women were granted the right to pass their citizenship status on to their children. With this considered, any child/ren born before that date, and subsequently any descendant in that female antecedent’s direct line, must apply to have their Italian citizenship retroactively recognized.
In order to do this, a petition is filed at the regional court that covers the jurisdiction of the municipality where the applicant’s female Italian ancestor was born. For more information on 1948 cases see our related podcast here.
Can I choose a judge in a 1948 case?
In short, the answer is no. It is not possible to select the judge in a 1948 case. This is because once a claim is filed, it is the administerial responsibility of the president of the court to identify and assign a judge to the case. To do this, they will take into account the schedule of the judge to determine their availability.
How is a case filed and judge assigned to the case?
In order to file a claim at court, it is required that a filing fee payment is made. For citizenship by descent cases the cost is €518.00, plus the revenue stamp duty fee which is €27.00. Once these fees have been paid, the power of attorney designating the attorney of record, the initial petition (“ricorso”) written by the attorney of record, and the supporting documents must be filed with the office of the court’s clerk. At this point the case will be assigned a case number (“R.G.) and it will be sent to the president of the court. The president will set about the task of identifying and allocating a judge to the case, based on aforementioned factors such as the availability of a judge. The president of the court can also assign the case to themselves, though. If the court is divided into several divisions, the president of the court assigns the case to the appropriate division, and the president of that division appoints a judge.
How does the appointed judge communicate the date of the hearing?
It is the duty and role of the office of the clerk of the court, which is the office adjacent to the court, that is responsible for administrative functions, such as documenting judicial activities, registration and custody of acts, and publication of judgments, to communicate all information and notifications relating to the case to those who are party to proceedings. Applicants are not required to be physically present in Italy, and can sign power of attorney to an appointed attorney. With this considered, the attorney is able to receive all notifications and information relating to the case on behalf of the client. It is common practice for the clerk of the court to send all communications and correspondence via PEC, which is a certified and secure e-mail.
Will the judge hold hearings in person or remotely?
It is possible that a hearing may be in person, or held remotely, or in written proceedings. How a hearing will be held will be dependent on factors such as the judge and complexity of the case. In the event that that the judge needs to move the date of a hearing, the clerk’s office will notify the attorney via a secure PEC email. The judge has full authority to postpone the hearing date, if the judge deems it is necessary to give priority to more urgent proceedings. In the first hearing, generally speaking, the judge will conduct and complete procedural checks, such as verifying the regularity of the powers of attorney, and if the notification has been properly served to the defendant, which in citizenship proceedings is always the Ministry of the Interior (Ministero degli Interni). It is important to highlight that the Italian judicial system adheres to a civil law model, and this means judges are not bound by case-law precedents, and can make rulings at their individual discretion. Judges also have the authority to disregard other or even higher court’s decisions.
Where will the process take place?
The court where the case is filed is usually determined by the place of birth of the relevant female Italian ancestor; however, it is also useful to note that there may be circumstances where you have a choice of courts. This applies in cases whereby you have more than one ancestor through which you qualify, and therefore have more than one plausible pathway through which to apply. In these examples, it may be possible to file the case at a court that falls under the jurisdiction of where one of your ancestors was born, has fewer scheduled hearings, and accepts cases relating to the naturalization of an ancestor when the children were minors (naturalizzazioni in costanza di minore età) cases. With this considered, it may be possible to choose the route, and antecedent, that is most straightforward, in terms of gathering the required documents and vital records pertaining to the ancestor. For more information on Italian citizenship 1948 cases that involve naturalization and ancestors who were minors, see our related podcast here.
This segment has been written to shed light on the topic of 1948 cases and the intricacies of the court process and procedure involved. If you have any further queries, or would like more information about applying for citizenship, you can visit our homepage, or contact us directly, and one of our friendly experts will be in touch.
