In a decision taken last Tuesday, the 12th, the Italian Court of Cassation reaffirmed Italian citizenship by blood right (ius sanguinis). According to the decision, it is “an absolute subjective right of constitutional relevance, which arises with the holder and is imprescriptible”.
The understanding creates an important legal counterpoint to the so-called “Tajani Decree”, which imposed much stricter criteria for the recognition of descent. According to the government decree, only children and grandchildren of native Italians would have the right to apply for nationality.
The new decision, however, legitimizes the judicial route to obtaining citizenship, as it sees it as a right that the individual has since birth and not a concession from the State that can be revoked.
Furthermore, according to the Court, legal action can occur not only when there is a formal refusal from the State, but also when there are impediments, delays or difficulties that prevent access to the administrative system – which describes the reality of thousands of descendants of Italians who face long queues and failures in the consulate system in Brazil.
The Court of Cassation deals with the interpretation of the common laws of the country. According to the Italian legal system, the Constitutional Court has the last word on the matter — similar to the Federal Supreme Court of Brazil. However, the Constitutional Court tends to follow the Court of Cassation’s interpretation of Italian laws.
Therefore, many experts believe that this legal turnaround signals that any political attempt to restrict access to citizenship will encounter a barrier in the country’s highest civil courts.
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What changes?
According to lawyer specializing in European citizenship Fábio Gioppo, from Gioppo & Conti, the decision makes it clear that there is no legal obligation to exhaust the administrative queue before the judicial process.
“The person does not need to prove that they managed to make an appointment, demonstrate that they filed the request with the consulate or that they entered an administrative queue”, he explained.
The lawyer highlights the section in which the Court states that the interest in taking legal action exists when the consulate creates obstacles, takes excessive time, or makes it impossible to present an administrative request.
“In other words: infinite queue, unavailable system, years of waiting, nothing can prevent the recognition of a constitutional right”, concludes Gioppo.
