New Italian Law March 2009

[JoeTinLA]

If the Egiziana was born in 1962, and assuming her mother or father was born on the earliest possible date after the '48 law change, then that parent would have been 14 years old when this woman was born. So I have to infer that that parent was born BEFORE 1948. Therefore if the parent had no transmission rights before the Cassazione decision (making the daughter a non-citizen), then the Cassazione decision obviously restored those rights for people born BEFORE 1948.

I don't see how else you can interpret this... I'm sure there's a way, though...

[teddi]

I understand you want this court ruling, which overturns the loss of Italian citizenship by women marrying a foreigner prior to 1948, to overturn Article 1 of the 1912 law as well. Probably your best course of action is to pursue your case through the Italian court system. Possibly you may achieve the Cassazione court ruling that overturns the 1948 rule. I imagine the thousands of people affected by it will be most appreciative.
Best of luck in your endeavor.

[JoeTinLA]

I understand you want this court ruling, which overturns the loss of Italian citizenship by women marrying a foreigner prior to 1948, to overturn Article 1 of the 1912 law as well. Probably your best course of action is to pursue your case through the Italian court system. Possibly you may achieve the Cassazione court ruling that overturns the 1948 rule. I imagine the thousands of people affected by it will be most appreciative.
Best of luck in your endeavor.

Until we actually read and translate the decision, there is no definitive way to state what it says.

[teddi]

Actually this has happened at least once before. in 1998 a tribunale granted Italian citizenship to a fellow, born in 1942 to an Italian mother who had lost Italian citizenship by marrying an Argentinian.

Goes back to mler's observation on the differences in legal precedent under Napoleonic Law vs Common Law.

[JoeTinLA]

teddi - as far as I can tell, the decision has not been posted yet for the general public on the Corte di Cassazione:

http://www.cortedicassazione.it/MappaSito/MappaSito.asp

It looks like the section that shows civil and criminal decisions requires access with a Smart Card.

Don't know if anyone here has looked at it. I will ask my lawyer.

I think you're right that legal precedent and "stare decisis" has much greater weight in Common Law countries, but it makes no sense that this would carry zero applicability to people other than this one Egyptian woman. I think that may be pushing the idea of "Roman Law" a bit far.

Again, the Immigrazione Oggi article says that now citizenship must be recognized for "descendants" of these Italian women. If the decision was strictly limited to this one woman, I don't think you'd see any of this hoopla over it.

[teddi]

Regardless of some hoopla on citizenship forums, this Cassazione court ruling does only specifically pertain to the single case before it. Not to say that subsequent courts won't refer to it when deciding cases of women who've lost Italian citizenship by marriage to a foreigner prior to 1948- they may well. But precedent isn't as strictly adhered to in Napoleonic Law.

The ruling on this case does not strike down law 555/1912 article 1. Not to say no one will argue that in a future court case. But it takes 8-10 years for these cases to work their way through the system- whereas with 3 years residence a descendent can have citizenship.

It will take a law passed by parliament to strike down DL 555/1912 Article 1. The Italian system works differently than the US.

[mler]

Joe, this is only a guess because I'm not as familiar with the details of this law as you are but, based on this discussion and the details provided by teddi, the woman who initiated this action was precluded from obtaining citizenship only because her grandmother married an American and thus lost her citizenship. The arbitrary removal of her citizenship without any act of renunciation on her part, is what this ruling addresses.

Because the grandmother was considered a non-citizen after her marriage, she was unable to pass Italian citizenship to any child born after that marriage. And this is the essence of the issue. Was the grandmother's child born before or after 1948? If, as you suspect, it was before 1948, your argument makes sense.

If, however, the parent of this woman was born AFTER 1948, under the 1948 ruling, he/she would NOT have been precluded from obtaining citizenship through his/her maternal line. Since the grandmother's citizenship was restored, if the parent was born after 1948, the Italian line remains intact.

If you are able to obtain this information, you may have the answer to your question. You still, however, run into the difficulty of establishing precedent, and the long path through the Italian legal system.

[JoeTinLA]

mler, as I understand it, the woman herself was born in Cairo in 1962 (this was mentioned in an article posted above by teddi). Her grandmother had married an Egyptian.

Therefore, as I mentioned above, I would bet a lot of money that her parents were both born before 1948.

If they were, then assuming the parent descended from the Italian woman who lost her citizenship could not transmit citizenship to the plaintiff because of the parent's birth date, it appears that the Cassazione decision reversed that and allowed the parent to transmit citizenship to the daughter, acquiring it himself or herself retroactively, through the now-restored citizenship of the grandmother.

I think you're probably right about the pitfalls of relying on precedent in Italy, and the long path through the Italian legal system. So I'll take your advice and pursue citizenship via both my mother's and father's sides.

I think my lawyer may be urging me to use the Cassazione decision because he's not worried about any steep legal fees I might incur with him if he should have to make one or two (or a dozen) court appearances on my behalf.

[mler]

I cannot begin to tell you how rewarding (albeit often frustrating) it is to trace the generations of family for jure sanguinis, and this is the perfect site to begin your quest.

If you want more information on the ruling, you may want to join the forum at www.expatsinitaly.com This is a good group, and if I remember correctly, the ruling you cite was, at one time, a topic under discussion.

For more information on the jure sanguinis document-gathering process, try: www.myitaliancitizenship.com and www.italylink.com , both excellent sources of information. And, of course, this site is a great resource for both your genealogy and document searches.

BTW, if you do go the jure sanguinis route, at what consulate will you apply?

Best of luck to you, and have some fun with this.

[JoeTinLA]

I cannot begin to tell you how rewarding (albeit often frustrating) it is to trace the generations of family for jure sanguinis, and this is the perfect site to begin your quest.

If you want more information on the ruling, you may want to join the forum and www.expatsinitaly.com This is a good group, and if I remember correctly, the ruling you cite was, at one time, a topic under discussion.

For more information on the jure sanguinis document-gathering process, try: www.myitaliancitizenship.com and www.italylink.com , both excellent sources of information. And, of course, this site is a great resource for both your genealogy and document searches.

BTW, if you do go the jure sanguinis route, at what consulate will you apply?

Best of luck to you, and have some fun with this.

Hi mler,

My lawyer has already started making inquiries with the LA consulate, I believe.

Thank you so much for the info!

BTW, this might be of interest to an English friend of mine, who lives in Milano and runs a general-interest blog called "Blog From Italy", on which he reports about anything and everything connected to Italy.

Check it out at www.blogfromitaly.com

Hope you enjoy it!

Joe

[mler]

Thank you. I certainly will.

I know you're a lawyer, but it's not really necessary to file a jure sanguinis application through a lawyer. Most applicants go it alone. If you are very busy, getting help with locating documents and doing the legwork certainly will make your life easier; but the process and application is straightforward, and a lawyer will not be representing you at the consulate.

You will probably get a lot more valuable information from those who have applied or are in the process of applying at the LA consulate than you will from a lawyer no matter how many inquiries he makes. Ask some questions. You'll be surprised at how knowledgeable these posters can be.

[teddi]

mler and others who've been reading Italian citizenship boards a long time, no doubt recall seeing occasional posts on legal rulings granting citizenship to persons born prior to 1948.

These are invariably trumpeted as the end of the 1948 rule at consulates and comuni. Yet the rules at consulates and comuni have not changed.

The current case appears to be yet another of these: the nonna's Italian citizenship is restored and Italian citizenship is bestowed directly by court order on this specific descendent.

In fact, there have been a handful of protracted legal appeals where a child born prior to 1948 to an Italian woman who lost citizenship by marriage to a foreigner was granted citizenship.

One was in 1998: a tribunale granted Italian citizenship to a fellow, born in 1942 to an Italian mother who had lost Italian citizenship by marrying an Argentinian.

In 2000 the Cassazione court overturned a woman's loss of Italian citizenship by marrying a Tunisian and bestowed citizenship to her 3 sons, one of whom was born in 1944.

Another in 2005: a tribunale granted Italian citizenship to a son born in 1947 of an Italian woman who lost citizenship through marriage to a Moroccan. As of 2008, this is being appealed.

Rather than striking down article 1 of DL 555/1912, these individual cases have specifically restored the woman's lost citizenship and directly bestowed citizenship by court order on a specified descendent.

Also recall that after the 1948 constitution took effect, Italian citizenship for children born on/after 1 Jan 1948 to an Italian mother was not immediately recognized. There were individual court rulings that recognized a specific child's citizenship over the subsequent decades, but the matter was not settled until the Corte costituzionale ruled in 1983 that the 1948 constitution permitted women to pass citizenship to their children. So it took 35 years.

Given the difference in judicial precedence under the Italian system vs the US system, I don't expect these individual rulings to direct all comuni or consulates to recognize citizenship through pre-1948 births to Italian women.

It will require an act of parliament, or a definitive ruling by the Corte costituzionale.

[mler]

Hi teddi,

Thank you for posting specifics on the history of legal action in Italy regarding the 1948 ruling and citizenship. My knowledge is only anecdotal, based on my membership on several citizenship boards. I do recall (but have yet to locate) that someone reported a direct challenge to the law that was won initially and lost on appeal.

I was concerned about this thread because I believed it might create unrealistic expectations and might encourage people to pursue long, costly, and ultimately futile legal battles. The information you posted provides a realistic analysis of the significance of Cassazione ruling. History clearly demonstrates the futility of basing expectations on Italian judicial precedence.

[filmoyster]

Any updates on this investigation?

Thanks!

[teddi]

No change: the 1948 rule is still being enforced by Italian consulates and embassies.

Persons whose female ancestor lost Italian citizenship by marriage to a foreigner prior to 1948 may file suit in Italian court to have their citizenship recognized.