by Andrew Montone*
The recognition of the status of “Italian citizen” (Italian citizen), already considered by Cassazione as an immediate and unconditional right subject to protection, has been interpreted differently by Court of Genoa, especially with regard to the concept of interest in acting, one of the conditions for action provided for in Article 100 of the Italian Code of Civil Procedure.
In simple terms, the interest in bringing an action is a procedural interest that reflects the need/usefulness of having a request considered through a judicial decision, since it cannot be resolved by the State. In the case of recognition of Italian citizenship, we are dealing with the paternal route, considering that the requests, in theory, should be handled by the consulates in a... reasonable duration. This understanding is widely accepted by Court of Rome, including before decentralization, which allowed other courts to operate.
Proof of this interest, in its evolving form, can be achieved by various means that demonstrate the ineffectiveness of the Italian State, especially with regard to the actions of consulates. Examples include:
The Supreme Court reaffirmed: citizenship is born with the person.
- New legal front opened
- Processes can still be filed.
- Individual assessment before any decision.
- Emails sent to the consulate (such as “ordinary post”);
- Waiting lists that demonstrate the State’s inability to meet various demands;
- Orders placed with AR (Acknowledgement of Receipt), accompanied by hand-filled forms and a copy of an identity document.
With the advent of the system “prenot@mi” (when used), applications began to be made exclusively online. This understanding is followed by the Tribunale di Roma, which, in several decisions, reaffirms that the uncertainty regarding the recognition of citizenship status and the excessive delay in processing these applications result in harm to the legitimate interests of citizens, justifying the pursuit of judicial protection (cf. decisions of the Tribunale di Roma on 01/11/2012, 28/06/2016, 03/08/2017, among others).
In line with this position, courts such as Brescia (Judgment no. 4681/2024), Salerno (Judgment no. 4312/2024) and Catanzaro (Judgment no. 1624/2024) also recognize the right to act, based on situations of uncertainty caused by administrative delay.
The Tribunale di Brescia, for example, acknowledges that the records (screenshots) from the Italian Consulate General in São Paulo, when there is no response to a citizenship application, demonstrate the consulate's inefficiency in processing requests, even when they were submitted several years ago.
The Tribunale di Firenze, aware of the chaotic situation involving countries such as Brazil, Argentina and Venezuela, states that there is a legitimate interest in acting, even when there is no formal proof of attempts to use the system. “prenot@mi”. Clear evidence, such as the long waiting lists at the aforementioned consulates, which exceed 10 years, demonstrates the lack of assessment of requests within the legal deadlines, creating an objective situation of uncertainty.
Recently, the Tribunale di Reggio Calabria, in some decisions, has been requesting the constant demonstration of interest in pursuing the action, which also occurs with new judges who are not yet familiar with the processes for recognizing Italian citizenship.
However, the position of the Court of Genoa and its Court of Appeal (Judgment no. 1246/2024, of 16/10/2024) contrasts with those of the aforementioned courts. In its analysis, the court does not consider the screenshots (graphic works) and emails sent to the consulate as adequate means to prove the attempt to apply for citizenship, arguing that:
“Regarding the ‘screenshots presented by the appellants’, it should be noted that, regardless of instrumental intentions, these do not allow verifying whether the appointment attempt was made for the citizenship application or for other services offered by the Italian Embassy website.”
Furthermore, the Ligurian court considers that emails sent via regular email (such as Gmail or Hotmail) are not suitable for initiating the application process, as they are not accompanied by the documentation required by Presidential Decree No. 362/94.
A parenthesis is opened: the decree's rule is not part of the citizenship regulations swear sanguinis.
What the Tribunale di Genova considers appropriate to initiate the process is formal contact with the diplomatic-consular authority via PEC (Certified mail), that is, a formal and certified communication.
There are also decisions indicating that this contact would not be appropriate if it occurred during the proceedings, which is diametrically opposed to what the Cassazione provides regarding this supervening interest:
“L'interesse ad actere (…) the pregiudizio must be concrete and actual, even sopravvenuto all'atto impugnato, but must not necessarily imply the injury to a right (…); è sufficiente uno stato di uncertainty (…)” (Cass., 20.1.2010, n. 919).
The effect of the lack of interest in acting (one of the stock conditions, also present in the Brazilian CPC) is the declaration of inadmissibility of the claim, without going into the merits. This implies that the right will not be analyzed, not becoming res judicata, but generating, however, new costs for its filing.
Therefore, it is essential to carefully analyze each consular unit and the understanding of each court, since interpretations can vary substantially depending on the region and the specific situation of each request, especially in consulates outside Brazil.
Andrew Montone He is a lawyer specializing in Italian citizenship, registered with the Milanese Bar Association, the Portuguese Bar Association, and the Brazilian Bar Association. Currently, he practices in... Studio Legale Piccolo, in Italy, focusing on immigration and citizenship.
The Constitutional Court's decision changed the landscape. The new citizenship law will now be reviewed by the European Union's courts of justice.
