At the public hearing this Tuesday, Lorenzo D'AsciaThe representative of the Presidency of the Council of Ministers at the Avvocatura dello Stato presented to the Italian Constitutional Court the State's central argument for defending the transitional provision of the Tajani Decree: the judicial route has always been available to Italian descendants. who were waiting in the consular lineProtecting only those who had already filed a lawsuit would therefore be proportionate and not arbitrary.
The problem is that the decree under review exists because Italian courts have collapsed under the weight of citizenship by descent lawsuits. Presenting the judiciary as an available alternative for those on the consular waiting list is, at the same time, the central argument of the State and its most exposed contradiction.
The vicious cycle of the State
To support his argument, D'Ascia cited a recent decision by the Court of Cassation and summarized it in his oral presentation: "the judicial remedy is immediate, it can be activated immediately by anyone."
The state representative himself acknowledged, at the same hearing, that in 2024 the Venice Court concentrated 73% of its civil cases on actions for recognition of citizenship by jus sanguinis. Decree-Law No. 36 of 2025 It was born as a direct response to this collapse.
Lawyers who attended the hearing pointed out the logical inversion: the State changed the law precisely because of the increase in lawsuits and now claims that people should have resorted to the judiciary. "They are turning cause into effect. If people had filed lawsuits earlier, the law would have changed sooner," said one of the legal experts interviewed by [the source]. Italianism.
The “immediate remedy” that the courts refused.
D'Ascia's argument ignores the jurisprudence that the State itself has consolidated. For years, consulates indicated the administrative route as the appropriate channel, and Italian courts even rejected jus sanguinis claims when a valid consular route was available. The judiciary was reserved for cases of consular error, undue refusal, or abnormal delay (and normal waiting times did not count as abnormal delay).
“I didn’t choose the consular route instead of the judicial one. I was told it was the only route I qualified for,” reported a descendant in an international forum discussing the trial. Those who remained in line did not choose that route: they followed the official guidance of the Italian State.
Neither immediate, nor guaranteed, nor accessible.
The legal route was not the automatic alternative that the argument suggests. Many cases are unsuccessful, which dispels the idea of a guaranteed remedy. The costs are substantial, and many families simply cannot afford a lawsuit in Italy.
There is also the preparation time. A lawsuit requires months, often years, of collecting certificates, legalizations, apostilles, and sworn translations. Simply sending an email to a court is not enough. By stating that the judicial route was always available, the State ignores that this lengthy preparation is an essential part of the process.
The cases of 1948: the consular route never existed.
In the so-called 1948 cases, which involve the transmission of citizenship through the maternal line before the Italian Constitution, the consulates never accepted applications. From the beginning, the judiciary was the only possible recourse. For this group, the argument that there was a choice between the consular queue and legal action is not even factually sound.
"The law cannot be a source of surprise."
The most sensitive point, according to legal experts consulted by Italianismo, is that of legitimate expectation. For decades, jurisprudence recognized that Italian descendants are Italian from birth. Those who did not file a lawsuit trusted in the stability of the law, often because they lacked the resources at that time.
“Those who didn’t file lawsuits weren’t inactive. They trusted in the stability of the law,” stated one of the lawyers. According to him, a legitimate reform would require transitional rules, with a period of three to five years for those entitled to exercise their rights. “The law cannot be a source of surprise. On Thursday I’m Italian and on Friday I’m not anymore. The State has to provide the conditions so that you can exercise that right.”
Among the descendants following the trial, the contradiction has turned into a bitter summary: Italy says that everyone should have gone to court, the same Italy that justified the decree by saying that It was overwhelmed with cases.
In the end, the Italian state's argument resembles that old saying: the tail chasing the dog. Italy created the queue, made everyone wait in it, and now asks, before the Court, why no one left it to sue it.
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