Former president of the Venice Court says new Italian citizenship law is "legal fiction"

The former president of the Venice Court, Salvatore LaganàHe stated that the new legislation on Italian citizenship by descent jeopardizes the very credibility of the Italian Republic and is a "legal fiction." The statement was made during the Legal seminar at the National Forensic Councilin Rome, which debated Decree-Law 36/25, also known as the Tajani Decree.

Laganà strongly criticized the wording of the rule, which uses the formula "it is considered that Italian citizenship was never acquired" for those born abroad before the law came into effect. According to the magistrate, "the legislator masks the effects of a true revocation of Italian citizenship with an apparently milder wording, but which, in reality, deprives people of citizenship."

According to the legal expert, the legislative maneuver attempts to ignore the fact that citizenship is a fundamental subjective right, acquired in an original way. "The phrase 'is considered' operates a true..." fictio iuris (legal fiction) "By virtue of which a right that originally existed and had the value of a personal status is suddenly considered no longer to exist," he explained.

Retroactive impact and lack of transition

The magistrate emphasized that, until the new rule came into effect, the right was guaranteed without ambiguity. "Those born abroad who held another citizenship were deprived by law of a status that was already theirs until 23:59 pm Rome time on March 27, 2025." He argued that "one should not hide behind hypocritical formulas" regarding what the legislator decided.

Another point of criticism was the absence of a transition period. Laganà highlighted that the change affects millions of Italians abroad who possess this right in a “permanent and imprescriptible” manner. He stated that the violation of the legitimate trust of the citizen is “clearly evident,” since the decree did not grant a “grace period or a period of rectification” for those who were already seeking documents.

Irrationality in effectiveness criteria

Regarding the new "effectiveness" criteria, the magistrate pointed out contradictions in the legal text. According to him, the legislator's choice "does not seem rational," as it focuses on formal presumptions of the ascendant and ignores the reality of the applicant. "The fact that the applicant is actually resident in Italy, works here, and knows the language is irrelevant," he lamented.

Laganà also condemned the reversal of the burden of proof, which now requires the plaintiff to prove the "lack of grounds for non-acquisition." He recalled that the jurisprudence of the so-called "twin judgments" of 2022 establishes that the applicant only needs to prove the acquisition fact and the line of transmission.

Expectations for the Constitutional Court

The debate is taking place at a crucial moment, preceding the hearing at the Constitutional Court scheduled for March 11. The court will analyze challenges from the courts of Mantua, Turin, and Campobasso, which pointed to the illegitimacy of the decree. "Citizenship belongs to the realm of fundamental rights, and the automatic extension of presumptions does not fit within fundamental rights," the magistrate concluded.

Laganà's statement gained additional weight because it came from a figure within the Judiciary, with extensive experience in higher courts.