“The reduction in applications may even ease the courts, but the decree takes away rights from those who already had recognized Italian citizenship.” The statement was made by the former president of the Court of Venice, Salvatore Laganà, during a hearing this Wednesday (9), in the Italian Senate.
In recent days, the Constitutional Affairs Committee in the Italian Senate has been hearing from jurists and experts on the Bill for the Conversion of the Decree-Law No. 36/2025, which changes the rules of citizenship by descent, the jure sanguinis.
Responsible for one of the most overburdened courts in Italy — with more than 36 cases since 2024, 98% of them from Brazilians —, Laganà stated that the new text creates legal uncertainty and harms those who have a legitimate right to citizenship.
“The reduction in the number of potential applicants for Italian citizenship cannot fail to be viewed positively by those who have had the responsibility of running a court.”
“Article 3-bis […] has a heavy impact on the requirements previously provided for the recognition of citizenship and ends up constituting a true revocation,” he said.
The judge recalled that Italian case law, including recent decisions by the Court of Cassation, recognizes that citizenship jure sanguinis It is an original right. According to him, these decisions are merely declaratory in nature — that is, the State merely recognizes something that has existed since birth.
“Judicial decisions on Italian citizenship are, according to the consolidated position of case law and doctrine, declaratory and not constitutive in nature. They therefore recognize the existence of a status already acquired by the applicant.”
“By stating that someone born abroad never acquired citizenship, someone is deprived of a status that they held until 23:59 p.m. Rome time on March 27, 2025.”
Laganà also criticized the new criterion required by the decree: an “effective link” with Italy. The rule favors those who have an ancestor born in the country, even if they have never lived there, and excludes those who live, work and speak the language.
“The principle of effectiveness […] is not treated as the result of proof of objective facts, such as knowledge of language, culture or residence, but rather as absolute presumptions, not subject to challenge, which often do not concern the applicant.”
“It is paradoxical that the condition of those who live and work in Italy, know the language and participate in the life of the country, but who, because they do not have an ancestor born in Italy, cannot be recognized as citizens, is not considered relevant.”
The judge also pointed out as serious the reversal of the burden of proof promoted by the decree, which transfers to the citizen the obligation to prove that he has not lost the right.
“The new rule reverses the burden of proof: it is up to the citizen to prove that he or she has not lost his or her citizenship, contrary to procedural principles, according to which the person who accuses must prove what he or she claims.”
Laganà argued that the administrative route should be mandatory before taking legal action.
“It would be appropriate to expressly provide for the mandatory prior administrative procedure before the judicial procedure, as a condition for the action, reserving the judicial process only in the event of denial.”
This Thursday (11), the Constitutional Affairs Committee continues to hear guests about the decree. Among the names is the mayor of Val di Zoldo, Camillo De Pellegrin, known for his statements against the recognition of citizenship for descendants abroad.
The phase for presenting amendments to the text ends on April 16.
The full video of the hearing on Wednesday (9) can be watched here: Senado.it
Full transcript, in Portuguese, of the speech by the former president of the Court of Venice *
Considering, firstly, that the reduction in the number of potential applicants for Italian citizenship cannot fail to be viewed favorably by those who have had the responsibility of managing a court whose workload has been, as already mentioned, heavily affected by the abnormal number of cases—including a veritable substitution of administrative activity—and considering further that citizenship should not be confused with the status of Italians not belonging to the Republic, mentioned in Article 51, paragraph 2, of the Constitution, with regard to mission, public office, and elective functions, with the need to avoid that the just recognition of descendants of immigrants who have maintained the Italian tradition, or of people who have remained resident in territories that were once Italian, overrides the status of citizens belonging to the Republic, which is something else entirely.
However, I would like to highlight some of the most relevant aspects of the decree-law, especially Article 3-bis inserted in Law No. 91 of February 5, 1992, insofar as it considers that anyone born abroad, even before the date of entry into force of the article, and possessing another citizenship, has never acquired Italian citizenship, except in the exceptions provided for by the rule itself. This strongly impacts the previous requirements for the recognition of citizenship and ends up resulting in a retroactive revocation of that citizenship which, as mentioned in the cited decision of the Court of Cassation of the United Sections, is acquired by original title. jure sanguinis, while the status of citizen, once acquired, is permanent and imprescriptible in nature, and may be recognized at any time based on simple proof of the acquisitive status established by the birth of an Italian citizen.
In fact, it should be remembered that judicial decisions regarding the recognition of Italian citizenship, according to the consolidated position of jurisprudence and doctrine, are of a... reconhecimento and not nature constitutive, therefore recognizing the existence of a status that had already been acquired by the applicant.
At the moment when, as written in the law, it is considered that the applicant born abroad never acquired citizenship, it necessarily follows that he is deprived of a status that, until 23:59 pm (Rome time) on March 27, 2025, he possessed and could assert, both administratively and judicially. I believe that the legislator can do this, also in light of the aforementioned United Sections rulings and Article 51, but it is important that everyone is fully aware of what is being decided: the deprivation former tunc of a legal status that someone born abroad could previously claim as inherent to their status as a descendant of an Italian citizen.
Secondly, the principle of effectiveness — that is, the effective acquisition of citizenship, which consists of proving the existence of a link with the State that goes beyond simply sharing an ethnicity, manifesting itself in an objective participation in the rights and duties of the Republic — is not treated by the 2025 legislator as the result of proof based on concrete elements, such as knowledge of the language, sharing of culture, residence in the State, etc., but rather as the result of a series of presumptions juris and de jure, which cannot be proven to the contrary and which, paradoxically, do not concern the outcome of the applicant's citizenship.
These presumptions are established, as is known, either by the birth in Italy of one of the applicant's parents, who must also be an Italian citizen, or, alternatively, by the residence in Italy for at least two years of the citizen parent before the birth of the child, and secondly, by the birth in Italy of one of the first-degree ascendants, that is, a grandfather or grandmother. It follows that the fact that the applicant, for example, actually resides in Italy, works there, knows the language, etc., is of no relevance.
He could not, for example, obtain Italian citizenship. jure sanguinis, if he is the child and grandchild of Italian citizens who were not born in Italy. Likewise, he could not obtain it if he is the child of an Italian citizen who was not born in Italy, but who has been resident in the country for more than two years, if such residence occurred after his birth.
Now, if it is true that the presumption corresponds to an assessment based on what normally occurs, I must humbly note that it would seem to me closer to this presumption the case of someone who lives and works in Italy and is the son of an Italian citizen who was neither born nor resident in Italy before his birth, as well as someone who was born of an Italian citizen who lived in Italy, perhaps for a long time, perhaps in a stable way, but only after his birth.
Thirdly, the choice contained in the second paragraph inserted in article 19 of legislative decree number 150 of 2011, on disputes relating to the recognition of citizenship, according to which the person requesting recognition of citizenship must allege and prove the absence of legal grounds for ineligibility or loss of citizenship, certainly implies a reversal of the burden of proof. This contravenes the general principles on the burden of proof, according to which it is up to the plaintiff to prove the facts constituting his claim in court, while the burden of proof relating to facts extinguishing, modifying or impeding the claim falls on the defendant. This, moreover, was recently reiterated by the United Sections of Cassation, with the aforementioned ruling of the 22nd.
And it is curious that not only does this inversion of the burden of proof occur, but that the proof itself cannot be made even by testimony — which, although it is a type of evidence rarely used in courts today, is still an instrument —, limiting in a way that is not easily understood the means of defense available to the plaintiff.
The last observation: even with this significant limitation, the number of people potentially interested in acquiring citizenship jure sanguinis will continue to be broad - although certainly smaller than before - and it would have been advisable, in my opinion, in order to avoid the repetition of the replacement of administrative activity by the judicial authority, to expressly provide for the obligation of a prior attempt at the administrative procedure before the jurisdictional one, making this a true condition for filing the action, this being considered exclusively as an appeal against the refusal to recognize citizenship by the administrative authority.
*Transcribed and translated with AI.
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