“We are in the National Forensic Council, but I don’t think you need to be a genius of constitutional law to understand that this (the Tajani Decree) is completely illogical, unreasonable, and disproportionate.”
With this phrase, the professor of constitutional law and researcher of public law Antonello Ciervo, from Unitelma Sapienza University, criticized Decree-Law 36/25, known as the Tajani Decree. The statement was made on Friday (6), during seminar held at the National Forensic Council, In Rome.
Ciervo stated that the text conflicts with the fundamentals of the rule of law. "The point is that we are facing a..." fictio iuris (legal fiction) with retroactive effect, effective former tunc (which has been the case since the beginning, as if it had always been this way), which substantially interrupts the continuity of the bloodline,” said Ciervo.
According to him, the decree modifies the logic of citizenship. jure sanguinis, which, according to the established jurisprudence of the Court of Cassation, is a perfect, imprescriptible subjective right, acquired at the moment of birth, and whose judicial or administrative declaration retroacts to its origin.
"That fictio iuris it contrasts with the other fictio iuris Created by the decree-law, which states: if you haven't applied by a certain time, you are not entitled to citizenship. This is absolutely illogical, unreasonable, and disproportionate.”
Criticism of retroactive cuts
The legal expert pointed out that the rule prevents the recognition of citizenship for those who did not apply by 23:59 pm on the day before the decree was published, without any transition period or possibility of defense.
"The individual was not placed in a position to exercise this choice voluntarily. Many didn't even have the necessary documents ready, which depend on registry offices, consulates, and notaries. The law requires a retroactive option that the citizen had no way to exercise," he said.
"We are facing a system reform carried out surreptitiously (hidden, undeclared), and the Constitutional Court has already stated that system reforms cannot be made by Decree-Law."
Legitimate trust and European case law
Ciervo stated that the rule violates the principle of legitimate trust, recognized by both Italian constitutional jurisprudence and European courts.
"If I was born Italian, even without it being declared, I have an inalienable right to request recognition." "The decree says that this right disappears overnight," he explained.
"Legitimate trust is part of the principle of legality. I need to know, with predictability and certainty, what criteria govern my right."
The professor also highlighted recent decisions by the Court of Justice of the European Union and the European Court of Human Rights.
"These courts say it's legitimate to change citizenship rules, but citizens need to be given a reasonable timeframe to exercise their option. Here, that didn't happen."
Burden of proof reversed
At another point in his speech, Ciervo criticized a new provision that alters article 19-bis of Legislative Decree 150/2011. According to him, this change imposes on the applicant the burden of proving that there was no interruption in the bloodline, something that previously fell to the State.
"The government holds all the official documentation. Reversing this burden creates an additional barrier to access to citizenship."
"It's an obstacle that adds to all the others. This type of rule has no place in a state that calls itself democratic and founded on respect for human dignity," he concluded.
FOLLOW-US
