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CASSATION J.S. Judg. 4466 English

Judgment of de Cassation, Joint Sections, n. 4466, on February 25 th, 2009. 

 

Mariam Elia, born on September 4th,1962, in Cairo from Edward Elias, which never had the Italian citizenship which as son of Angelina Costanze, who would have lost it because of her marriage with an Egyptian citizen, since such a loss and unsuccessful acquisition of condition state depended on the application of procedure of the law on June 13th, 1912 n. 555 declared illegitimate in 1975 and in 1983 by the Constitutional Court, because they were discriminatory in relation to the woman with respect of to the man (articles 3 and 29 of the Const.). With an appointment on August 27th 2003, she requested to the Court of Rome in contradictory with the Home Office to be declared Italian citizen by sanguinis law, for transmission of the condition (state) by her ascendancies. The Home Office constituted and requested the rejection of the demand itself, rejected in the year 2004 by the Court, for lack of the declaration of the Costanze in relation to want to recover the lost citizenship, in the sense of the article 219 of the law of May 19th, 1975, n. 151; with such an adverse judgment the actor proposed recurs ejected by the judgment in epigraph of the Court of Appeal of Rome, which, she retained inadequately proven the declaration of the Costanze on the repurchase of the citizenship.

 

For the cassation of such a judgment Elia has proposed resource for four motives, illustrated by the memory in the sense of the art. 378 c.p.c. and notified by post on 15th  – 16th December 2006, to the Home Office to the general attached Attorney to the Court of Cassation and they have not defended both announced ones. The first civil section of this Court, with Ordinance n. 2563 of February 4th  2008, has emphasized the re-proposal by itself of the question of the retroactive effects of the unconstitutionality of procedure pre constitution, that, in relation the in force pre Law n. 555 of 1912, has been an object of contrast among more judgments of this Court, solved by the United Sections in the sense that the unconstitutionality struck of such procedure, does not retro operate beyond the 1st of January 1948, it does not even affect the exhausted relations, among which has been included that of the loss of the state for the woman because of marriage with a foreign citizen, previous to the above mentioned date. One has denied the possibility of re expansion of the relations of citizenship extinguished because of the marriage of the woman with the foreigner, who had produced such an intractable effect, in relation to a norm ratione temporis legitimate; the first civil section, even believing correct the premise of the principles enunciated by the Sections Joined on the retroactivity of the judgments of the Constitutional Court declarative of the illegitimacy in force laws before entry into force of the fundamental paper and on his unconstitutionality called "sudden coming”, has not shared the corollary, for which they should never believe "exhausted" the relations of citizenship extinguished or not born before the 1st of January 1948, considerate incapable of rebuild after the removal of the norm that had produced such consequences.

 

Mistaken would it be, to notice of the simple section, the consideration as concluded or exhausted of the relations of citizenship lost or not acquired before 1948 by the past considered unconstitutional discipline, deducing such a depletion of the declared illegitimate procedure, in how many the preclusive facts to the retroactive extension of the constitutional illegitimacy only can be extracted of procedure different from those evaluated by the judge of the law, being constituted by the effects of the final judgment, of the course of the terms of decadence or the times of prescription or of conclusive acts to this respect, of procedural or substantial nature.

 

Therefore the relations of lost or unsuccessful acquisition of the citizenship for the law  n. 555/1912 " not exhausted to the 1st of January 1948, in absence of external events that has defined them in precedence, returning them not more actionable or unable for jurisdictional guardianship, they cannot be considered to be exhausted ".

 

The loss for the woman of the citizenship because of the "fact" marriage with the foreigner, in agreement to the article 10, the third clause, of the Law n. 555/1912 declared unconstitutional from the 1st  of January, 1948, it would not constitute an effect that necessarily has to act beyond such a date, being able to be considered to be removed from the same date by struck unconstitutionality, in case there should be absent facts or preclusive events of such a retroactive absolute efficiency of the judgment of unconstitutionality.

Demostrativo, convincente, que no admite contradicción: juicio apodíctico.

In view of the virtual contrast of such a solution with that one enunciated by previous decisive judgments of the Court of legitimacy of the aforesaid contrasts, the First President has assigned the decision to the United Sections, in the sense of the article 374 c.p.c..

 

Motives of the decision.

 

1. 1 The first motive of resource deduces violation or false application of the article 219 of the law on May 19 th, 1975 n. 151 and insufficient or omitted motivation on decisive points, relative to the existence of the budgets of fact to apply such a norm.

Inaccurately the territorial Court has denied the repurchase of the citizenship for the appellant, for lack of declaration of her ascendancy of wanting to recover the Italian citizenship regulated by the article 219 of the law n. 151/1975, even being in acts such a document, which expresses Angelina Costanze's will, to want to return to be an Italian citizen, regularly demonstrated before the consular Italian authorities in Egypt, residing the woman in that country.

that does not admit contradiction

The Court of merit affirms – with a sharp affirmation that does not admit reply  -  that the act of Costanze does not constitute " suitable documentation to the respect... For which the citizenship has never been recovered by the same one and therefore cannot be transmitted to the children and to her inheritors "; in effect the declaration directed the consular authority in presence of two witnesses of Costanze, of wanting to recover the citizenship, is suitable to the repurchase of the citizenship’s condition and to the judgment of merit it has clear vices of motivation on such a decisive point for the judgment.

 

1.2. The second motive of resource denounces violation of principles of right and insufficient or omitted and contradictory motivation on decisive points of the controversy, since, also to considering the document treated in the first motive of resource, inadequate to the aim  objective, the territorial Court has been mistaken in denying that the judgments of constitutional legitimacy should have retroactive inapplicable effects to the relation of loss of since, also to considering the document treated in the first motive of resource, inadequate to the aim lens, the territorial Court has been mistaken in denying that the judgments of constitutional legitimacy should have retroactive inapplicable effects to the relation of loss of citizenship the one that is a reason, considering this one to be last exhausted, rightly being the citizenship’s condition an imprescriptibly, relation.

 

1.3. With the third motive of resource they propose the doubts on the constitutional legitimacy of the article 21 of the Law n. 151 of 1975, which applicability has been confirmed by the article 17 of the Law about the citizenship of February 5 th, 1992 n. 91.

 

The condition imposed by such procedure, by which, before the absence of the declaration in her foreseen, the repurchase of the citizenship would be denied, is unconstitutional, because it is in contrast with the articles: 3 and 10 of the Const., with the convention of New York of December 18th 1979, ratified by the law n. 132 of March 14 th, 1985 and with the principles of not discrimination among man and woman contained in the European Constitution.

 

The automatic loss of the citizenship for only for the woman married foreigner and not for the man is discriminatory and the pretension of subsequent duties at the expense of the same victim of the injustice, to recover the citizenship’s condition of which illegitimately has been deprived, is unconstitutional, since the man preserves in all the cases his citizenship and, for the descendants of the deceased women between 1948 and 1975, the repurchase of the citizenship might not be possible.

The repurchase of the citizenship one asks to consider therefore automatic, as it was the loss because of the unconstitutional law.

 

1.4. Finally the fourth motive of resource also requests the reform of the decision of the territorial Court for the jus superveniens of the D. lgs. of April 11 th, 2006 n. 198, also called " Code of parity of opportunity among man and woman " and to norm of the article 5 of the law of November 28 th, 2005, n. 246.

 

2. The second motive of resource, which censures the judgment of merit for having denied the automacity  of the repurchase of the citizenship of the ascendancies of the appellant and the acquisition of the citizenship’s condition of citizenship for this one last, because of the judgments of the constitutional Court on April 16 th, 1975 n. 87 and February 9th, 1983 n. 30, independently of the declaration of  her ascending, of the article 219 of the Law n. 151 of 1975, it is logically preliminary to the examination of other motives of resource.

 

The judgment of 1975 has declared illegitimate  the article 10, clause 3, of the Law of June 13 th, 1912 n. 555, in the part in which the woman was foreseeing the loss of the citizenship without her proper will, in case of marriage with a foreign citizen; the judgment n. 30 of 1983 of the judge of the laws has noticed the unconstitutionality of the articles 1,  number 1 and 2, and 2, clause 2, of the same law on the part in which the first one did not foresee the acquisition of the citizenship for the civil mother’s children and the other one established in all cases the predominance of the citizenship of the chaplain in the transmission of the citizen's condition to the children.

 

 

The controversy there concerns a descendant from subjects that, before 1948, have suffered the effects of the declared unconstitutional procedure: The grandmother of the appellant, Angelina Constanze, had lost the Italian citizenship without having resigned it, for having "been "married"  (this way the word used in the law n. 555 of 1912), with an Egyptian and the son of the couple, born in 1942, must have acquired the citizen's condition of the father, as imposed for the discriminatory law of the feminine condition, and she could not transmit the Italian citizenship to the daughter who asks for the recognition in this one sedate. Unlike the precedents who have given place to the contrast, in that they operated in judgment reasons  that directly affected the declared unconstitutional laws, that is to say women who had the citizenship lost for the marriage with the foreigner or persons who did not acquire it to be children of mothers in the indicated condition and of foreign father, in the case, the legal actor is only a descendant from subjects that have suffered the effects of the discriminatory discipline.

 

The judicial recognition of the citizenship would correspond to the right of the appellant, for the procedure having being declared unconstitutional supra mentioned, must be considered to be re-acquired or not lost the condition of Italian citizens of the father and of the grandmother, how much less to passing of the 1 º of January, 1948, being incompatible with the beginning(principle) of not discrimination among the sexes the effects, lasting in the time, of the not more applicable unconstitutional regulation less from the date that precedes.

 

2.1. The Constitutional Court in 1975, declaring the constitutional illegitimacy of the art, 10, third clause, of the law n. 555 1912 of " in the part in which it foresees the loss of the Italian citizenship independently of the will of the woman", has considered not only such a discriminatory discipline of the equality among man and woman and against not only the art. 3 Const., but also against the principle of equality of the spouses and of the unit of the family of the article 29 of the Const., being able to induce one the woman, for not loss the proper condition of citizenship, “not to fulfil   the legal act of marriage or to dissolved it, once fulfilled”

(this way textually the mentioned Judgment n. 87 of 1975), foreseeing the same norm, on point no declared illegitimate, the repurchase of the citizenship consequently - broke the conjugal link, which permanency was presupposed the juridical one of to last of the loss of the citizen's, still previous citizenship’s condition in the regime.

 

To analogous ratio decidendi inspires the Judgment n. 30 of 1983, which considers the discipline of the law to be discriminatory n. 555 of 1912 in order the unsuccessful acquisition of the citizenship, because “treats in a different way from the legitimate children of Italian father and foreign mother with respect of the legitimate children of foreign father and Italian mother", as affirms the indicated judgment, only allowing to first the citizen's condition acquiring.

 

In the same line and in relation always the articles 3, the first clause and 29, the second clause, of the Const., it has declared himself finally illegitimate, with the judgment of the C. Const., on February 26 th, 1987 n. 81, the article 18 of the preliminary  regulations to the civil code that, in case of different nationality of the members of the pair and lack of a national common law to both, imposed the application of the national law of the husband on the time of the marriage; the decision assumes relief in this one sedate, because the denied pre-eminent position of the husband to individualize the law applicable to both spouses, matters that the transmission the woman of the citizenship imposed by the national law of him because of the marriage to the time in which it was contracted could remain, without being considered to be discriminatory and capable of infringe from the right to the juridical and moral equality of the spouses.

 

2,2. This Court, with judgment of February 23 th, 1978 n. 903, has denied that the judgment of constitutional illegitimacy of procedure previous to the entry in force of the Constitution could have effects before the 1 º of January, 1948, effective date of the Fundamental Letter, noticing that " the loss of the Italian citizenship, because of the acquisition of the foreign citizenship because of the marriage of the woman contracted with citizen of another country, is an instantaneous effect of such an act, constituting a generating fact of the event, on which it cannot produce effects the judgment of illegitimacy of article 10, 3 th clause, of the Law on June 13 th, 1912 n. 555, of the judgment of the constitutional Court n. 87 of 1975".

 

The judgment already enunciates principles to the epoch consolidated on the so called unconstitutionality struck of the procedure pre constitutionals declared illegitimate (cfr. infra n. 2.3.), but to them there do not adhere two successive judgments of this Court.

 

The Cas., on July 10 th, 1996 n. 6297, on the budget that the same relevancy of the question of constitutional illegitimacy in the system of incidental judgment in which she is decided, endures the cessation of efficiency erga omnes of the laws pre constitutionals in all that applicable to the not exhausted relations, the Court thinks that the causes of the lack of acquisition of the citizenship for the actor, born previously to the of January 1st 1948 and son of Argentine father and of mother who had lost the citizenship for the marriage, is not the birth but the relation of paternity from one of the progenitors citizen forgotten unjustly by the illegitimate norm and recognizes the plaintiff the citizenship.

 

In the same line moves Cas., on November 18 th, 1996 n. 10086, in relation to a marriage) of 1950 of an Italian with a Swiss, and to the acquisition of the citizen's condition of the son; because of these two judgments the contrast arises among decisions of the simple sections, to which the first resolution is given, from this Court to Sections Joined with Judgment of November 27, 1998 n. 12061, which she adheres to how much enunciated in 1978, with the explanation that the rule of the unconstitutionality dad struck imposes that the loss of the citizenship because of the marriage of the woman with a foreigner before entered force of the Constitutional Test, already definitive event, remains after the entry in force of the Constitution, except the faculty for the woman to recover her citizenship’s condition with the instruments foreseen by the ordinary law, that is to say with the declaration foreseen in the article 219 of the law n. 151 of 1975.

 

In relation to an Italian citizen born in Lybia, which lost the citizenship for a marriage of 1944 with a Tunisian, the Cas., on November 22, 2000 n. 15062, moving away of the principles enunciated in 1998 and adhering to the thesis of the so called struck unconstitutionality, she has affirmed that, to passing of the of January 1st 1948, the lack of depletion of the relation of loss of the citizenship imposed by the illegitimate norm, endures the recovery. One has made notice that to remain the effects of the loss and the lack of acquisition of the citizenship’s condition they are in contrast with principles and constitutional procedure after the January 1st 1948, the Italian citizenship being recognized to three children of the woman, not citizens only to have born after the mother had lost the citizen's condition for the turned illegitimate norm.

 

Because of the been reborn contrast of the orientations of this Court on the loss and on the unsuccessful acquisition of the citizenship, derived all in force of the pre in force disciplines of the declared illegitimate procedure of the law n. 555 of 1912, this Court to United Sections, with the judgment on February 19, 2004 n. 3331, has confirmed again the untratabil of the loss of the citizenship's condition for the woman who should have married with a foreigner before it entered force of the Constitution, being such a effect arisen from an event produced in definitive route and already exhausted, before that the constitutional parameter of reference that turned it illegitimate was juridically existing and being able the woman re-acquire in any case her citizenship’s condition with the declaration, in such a case with constitutive effect, of the article 219 of the law n. 151 del1975.

 

2.3. With the exception of both judgments of 1996, all others reaffirm the principle for which " the declaration of constitutional illegitimacy of a norm of law operate with efficiency erga omnes, by that, in consequence of it, the norm of declared law constitutionally illegitimate is eliminated of the in force legislative system ex-tunc from the moment in which it(he,she) has entered force, if it is a question of successive norm to the Constitution, or from the moment of entry in force of this one last, if it is a a norm previous to it" (among others, with the mentioned judgments, cfr. Cas., on June 4 th, 1969 n. 1959, on 4 t February 1975, n. 419, and on 12th January 1980 n. 260 and, in the same sense, C. Const., on 27 th April, 1967 n. 58).

 

Except the case in which the same judgment of the constitutional Court was regulating in a different way the same retroactivity, the question of the retroactive effects of the declarations of illegitimacy of laws pre constitutionals generally is solved with the principles supra indicate in reference of the also called struck unconstitutionality, steadying itself that, only from the entry in force of the Constitution, in January 1, 1948, and not before such a date, could have relief the contrast with the procedure of the fundamental law of the internal right, being absent the constitutional parameter of reference, not existing not in force. Even about unconstitutionality struck of juridical procedure exactly one speaks with reference to declared unconstitutional procedure for her contrast with born rules of modifications to the Constitution successive at the entry in force of the ordinary declared illegitimate procedure: it has happened with the article 5 bis of the law n. 359 of 1992, in relation to the article 117 Const., replaced by the law on October 18 th, 2001 n. 3, and to the judgments of the Court Const. On October 24th, 2007 n. 348 and 349.

 

In relation to such a question Cas., on December 14 th, 2007 n. 26.275 there notices correctly that the incidental character of the judgment of constitutional legitimacy imposes that the norm that is her object regulates the controversial relation and that therefore this one still in order that, for her regulation, it could in reference to it to make stop the efficiency of the law of that has declared itself the unconstitutionality, from the successive day to the publication of the judgment of the “Judge of the Laws” (article 136 Const.).

 

For effect of the recall of the incidental question of constitutional illegitimacy, the illegitimate norm makes to itself inapplicable to the relations and to the cases to which it would have been applied, if there did not exist the judgment of the judge of the laws, who affects only on such situations only if and in how many they are not still definite, consolidated and concluded, for effect of others (article 30, clause 3th, of the law of March 11th  1953, n. 87).

 

There was already autority affirmed in doctrine that the limits of the retroactivity of the declarative judgments of unconstitutionality of the “Judge of the Laws”, absolute and erga omnes, correspondin any case to those of the relevancy of the question raised to the “Judge of the laws”, who affirms of her the admissibility when the relation to which the norm of whose constitutionality is doubted should be still actionable, that is to say sujetable to a judgment that regulates it on the basis of the discipline in contrast with the Constitution and capable of modifications, and not therefore when it already exhausted and concluded beech, because of different procedure that have closed it already in definitive form, Cas. On July 18 th, 2006 n.  16.450). If the depletion of a relation is emphasized by substantial or procedural procedure different from those object of the judgment of constitutionality, her to be hanging, necessary for the relevancy of the question, it cannot deduce any more than than the norm of whose constitutionality is doubted, to become ineffective in relation to situations that Cassation

 should not already believe defined or already consolidated, this way (Cas. January 14th 2008 n. 599, the cit. n. 26275/2007, on July 28 th, 2005 n. 15809).

 

For the laws pre constitutionals, one affirms that the relations regulated by a regulation, arisen in the phase in which this one could not be evaluated on non-existent parameters of constitutionality, in general cannot be affected by the sudden coming illegitimacy of the law either, except different indication of the judgment of the Judge of the Laws.

 

The latter judgment cannot modify the relations regulated by the illegitimate norm, except that these are not capable of producing, in the juridical sphere of the one who is to title of it, still(yet) consequences because of the unconstitutional law. In case of species, the judgment n. 87 of 1975 and n. 30 of 1983 of the constitutional Court clarifies that, in order the marriage with the foreigner, the loss of the citizenship of the woman was staying without effect with the dissolution of the marriage and that the unsuccessful acquisition of the citizenship’s condition derived not from the woman's mere birth deprived of the citizenship, without her will, but from the "filiation" from this one, teaching, with such a reading of the unconstitutional procedure of the law of 1912, which were to marry the foreigner and the filiation of this one the permanent reasons of the loss and of the frustrated acquisition of the citizenship condition and the facts from which the relations were arising, still there being no the husband pre-eminent relief in them (C. Const. n. 71/1987).

 

3. The citizenship is a personal condition that there does to a person member of the people of certain country and from her rights and duties arise not only with regard to the State but also in the relations of the citizen with the society and other persons who to her(it) belong(concern) (article 4, clauses 1 and 2, Const.). For the ordinary regulation, to the citizenship there has citizens right the son of father or mother or of unknown progenitors, if he is born on the national territory (article 1 Law on February 5 th 1992 n. 91), with reference to the concepts of jus sanguinis and ìus soli: the Constitution prohibits that the citizenship’s condition could get lost for political motives (article 22 Const.) and the ordinary law adds that she only can be resigned the one who is to title (article 11, Law n. 92 of 1991).

 

The normative structure of the institute demonstrates that every person has a civil right to the personal condition constituted of the citizen's condition and to this respect even they are the international relevant conventions in this one sedate in the sense of the article 117 Const. (From the article 15 of the universal Declaration of the rights of the man of 1948 to the Agreement of Lisbon approved by the European Parliament on January 16 th 2008).

 

The law n. 92 of 1991 on the citizenship reaffirms the existence of such a right that can be alone recognized by the administrative competent authorities (Home Office: articles 7 and 8), foreseeing exceptionally acts of grant on behalf of the President of the Republic, with a political discretion limited, in relation to the special circumstance indicated by the law, by which the citizenship is granted (article 9).

 

The citizen's condition(state) is permanent in the time that they demonstrate in the exercise(fiscal year) of the consequent rights; this one, since it has been emphasized, only can get lost for resignation, as it(he,she) was also in the legislation pre in force (article 8 n. 2 L. 555 of 1912).

 

For the Convention on the elimination of any form of discrimination with regard to the woman adopted in New York on December 18, 1979 and ratified in Italy for the law of March 14 th, 1985, n. 132, invoked in the resource, to the women correspond(fit) " equal rights to those of the men as for acquisition, change and conservation of the citizenship ".

 

In the law of 1912, since as interpreted by the Constitutional Court in both mentioned judgments, the conjugal relation of the woman "married" foreigner and that of "filiation" only of civil father they were enduring respectively the loss or the acquisition of the citizenship, not pertinent to the son of woman who had lost it for marriage(couple)

 

None indexes sole right to the birth and the mere jus sanguinis justified or justifies the acquisition of the citizen's condition, which arises from the filiation, today also adoptive, being doubtful and overcome the link the mere fact of the acquisition being born of a subject with a specific citizenship of this one, with a vision that dangerously approaches the concept of "race", incompatible with the civilization before still that with the article 3 of the Constitution.

 

The citizenship, as exactly steadies itself for the best doctrine, assumes not only her sense and meaning in the discipline of the vertical relations of his holder with the State that exercises sovereign power in relation to that one, but also in horizontal those with other members belonging to the society in whom he takes part with the holders of the same citizenship’s condition (article 4, Const.).

 

For the relation of filiation that connects a person with the social intermediate formation constituted by the family " natural society " (articles 2 and 29 of the Const.), the person enters relation with the whole society and has right to the recognition of the condition of citizen and of the rights and consequent duties.

 

Therefore correctly one affirms that the citizen's condition, effect of the son's condition, constitutes an essential quality of the person, with characters of absolutility, originality, unavailabelity and unprescriptibility; what always they make it actionable and in general not definable as exhausted or closed, if not when it proves denied or recognized for judgment spent in authority of judged thing.

 

Such a reconstruction of the concept of citizenship emerges of the same judgments on the law pre constitutional that was regulating of the Constitutional Court, which consider the loss and the unsuccessful acquisition of the citizenship’s condition imposed by the illegitimate regulation, effect of a marriage, providing that this one should be still effective and should not have been dissolved, and of the being son of mother that the loss of the citizenship’s condition has suffered against her will, without resigning them.

 

It steadies itself in the judgments " of the S.U. of 1998 and of 2004, that the causative fact of the privation of the citizenship for the woman would be the alone event of the marriage contracted before it entered force of the constitution, to which the article 10 was connecting the loss of the citizenship, there being qualified such an effect as exhausted consequence of the marriage itself, without giving them relief to the indicated reasons of the declarative judgments of the illegitimacy of the regulation, put in heighten also with base in also to last of the matrimonial link up to his dissolution and to the filiation of the person still of civil mother.

 

The same interlocutory decision of the First Civil Section affirms exactly that the citizen's condition, if it was lost, is in any case recoverable, since also it happened in the entire force  of the article 10 of L. n. 555 of 1912 on the not illegitimate point, in spite of there be dissolving of the link and therefore that the loss of the citizenship constitutes a relation perdurante in the time, on which the spouse's condition affects and not only the made marriage and that one of son of woman and not of civil man, that, still(yet) in the present fattispecie, they have affected on the citizenship of the ascendancies of the appellant, in contrast with the fundamental and constitutional beginning(principles) of not discrimination of the woman and because of a diversity of treatment founded on the sexual distinction and violatory of the principle of guardianship of the familiar unity and of moral and juridical equality of the spouses.

 

In absence of events or situations, regulated by diverse procedure of the law n. 555 of 1912, as for example a judgment passed in authority of judged thing that has made definitive and exhausted the loss or the unsuccessful acquisition of the citizenship, to remain of such effects endures to persist of the consequences of a discriminatory regulation and violatory  of fundamental rights of the woman, even in absence of an external event that has made definitive the relation regulated by the unconstitutional procedure

 

 The absolute character of the guardianship of the fundamental right not to being discriminated for reasons of sex injured by the regulation of 1912, it might make admit a retroactivity beyond the date of entry into force of the Constitution and an incident in the analogous time to that one recognized in the space for this Court (United Sections, Ord. on May 29 th, 2008 n. 14201 and Sent. on March 11 , 2004 n. 5044), being in game right inviolable of the woman to being treated not in a diverse way to the man, that the Letter in the article 2 "recognizes" and does not attributes, also in reference to the role of the spouses in the family (C. Const. n. 81/87). The lack of reference to such a more extensive retroactivity in the mentioned judgments of the Constitutional Court of 1975 and of 1983, which content indicates their retroactive efficiency only for the relations not exhausted on which the unconstitutional procedure still should affect, does not consent of overcoming in the case the principles enunciated of the unconstitutionality sudden coming and the limit of the retroactivity not beyond the 1 º of January, 1948 of the putting in relief illegitimacy of the procedure pre constitutionals.

 

3.1. Both precedents of 1998 and of 2004 of this Court to United) Sections connect the recovery of the citizenship to the declaration foreseen by the article 219 of the law n. 151 of 1975, believing the first one that the reference in the judgment n. 87 of 1975 to the loss of the citizenship against the will of the woman, exclude naturally a repurchase of the condition without the will of the same one and steadying, in the second judgment, what such an act would have constitutive nature at least with reference to the citizenship lost before the entry in force of the law n. 151 of 1975.

 

The norm confirmed by the article 17 of the Law N. 92 of 1991, foresees that " the woman that, because of marriage with a foreigner ... has lost the Italian citizenship before the entry in force of the present law, recovers with declaration directed the competent authority ", that is to say to the Official of civil status of the city where the deponent resides or wants to establish her residence or, in case of foreigner residence, to the diplomatic or consular authorities (cfr. articles 7 and 23 of Law n. 92 of 1991 and article 1 of the D.P.R. on April 18, 1994 n. 362, procedure that have replaced the article 36 of the disp. act. of the c. c.).

 

In relation to the faculty of the right haven’t  to the recovery or to the acquisition of the citizenship, of resigning the citizen's, foreseen citizen’s condition, in the in force pre law n. 555 of 1912, (article 8) and in the current regulation, article 11 of L. n. 92 of 1991, the article 219 of L. n. 151 of 1975, it imposes the declaration, which, in the same norm is foreseen "it" is "directed" for the administrative authority by effects of recognition of the repurchase of the citizenship lost before the entry into force of the law of 1975 and previously 1948.

 

The affirmation of the norm that the repurchase has "with" the declaration and not " for effect " of this one, in no case allows to qualify such an act as constitutive, still when the administrative authorities are compelled to "recognize", with ministerial decree, the right to the recovery of the citizenship lost from the day following that one in which all the formalities have been fulfilled needed (art. 15 of the Law n. 92 of 1991).

 

It must be considered that, since it is foreseen for the condition of stateless, also for the citizen's condition, the administrative recognition and the decree of the Home Office that it obtains to (article 7 and 8 L. n. 92 del1991), concerning a civil right, they are linked acts that cannot but to be based on the documents produced by who requests them, in application of the principles of impartiality and transparency of the administrative action(art. 97, Const.).

 

On the other hand the judicial checking of the citizen's condition is not linked to the same limits of the action of the Public Administration and, in case of loss of the citizenship for marriage of a woman with foreigner previous to 1975, it can happen without such an act, providing that the resignation is not proved by the Home Office of interested to the condition itself controlled in the defaults (on the double route, administrative and jurisdictional, for the recognition of the condition of stateless (cfr. S.U. On December 9, 2008 n. 28873).

 

Such a constitutional reading of the article 219 of the Law n. 151 of 1975, absorbs every censorship proposed in the first motive of resource and makes irrelevant the question of constitutional legitimacy raised in the third motive of challenging.

 

3.2. The situation based on the demands object of this judgment, that is to say the right to the condition of citizenship of the appellant, because illegitimately acquired by the father son of woman who unjustly had lost it, is ever a "automatic" consequence of the application of an unconstitutional law from the January 1st, 1948.

 

On the logical plane before that on the juridical one, in the sense of the article 136 of the Const. and of the article 30 of the Law on March 11, 1953 n. 87, the cessation of the effects of the illegitimate law because it is discriminatory, cannot affect immediately and in "automatic" route on the hanging or still actionable situations as the right to the citizenship, always being able, from the date in which the law has become inapplicable, be admitted the right unprescriptible to the unsuccessful loss or to the acquisition of the citizen's condition of the ascendancies of the appellant and then the right of this one to the declaration of the proper citizenship’s condition, as daughter of civil father for the woman's filiation that, from the January 1st, 1948, Italian citizen must consider.

 

The effects produced by an unjust and discriminatory law in the relations of filiation and conjugal and on the citizenship’s condition, which they persist in the time, they cannot that to come less, also in case of death of anyone of the ascendancies, with the cessation of efficiency of such a law, which passes from the January 1st, 1948, date from the citizenship has to consider to be automatically recovered by that they have it lost or have not acquired it because of an unjust norm, except there has been expressing resignation to the condition of the right haven.

 

The procedure pre constitutionals recognized illegitimate because of judgments of the judge of the laws, they are inapplicable and do not have effect beyond the January 1, 1948, on the relations on those who still affect, if they remain, the discrimination of the persons for her sex or the pre eminence of the husband in the familiars relations, providing that there is a person on whom still they determine unjust but actionable consequences, that is to say tutelary in sedate jurisdictional.

 

Certainly it cannot constitute a hermeneutic criterion in the opposite direction of the effects of the judgment of unconstitutionality of the laws, the distrust of the administrative practice towards an excessive expansion of the retroactivity, which might give place to a multiplication of requirement of citizenship for the descendants of the Italian citizens emigrated to other States, as the actor-appellant in the fattispecie (cfr. the circular letter of the Ministry of the Interior of November 11, 1992, n. K.60.1, that to this respect interprets the law n. 91 of 1992, invoking the Opinion of the 1ª section of the Council of State of January 15, 1983 that he(she) denies that the judgments of the constitutional Court could retro action beyond the January 1, 1948).

 

Actually, still without bearing the diversity in mind, with regard to the epoch of the mentioned ministerial circular letter, of the current condition of the society, in which strong inmigratory flows exist, today there turns out to be clear the favority of our legislator for the recovery of the citizenship of the descendants of the emigrés abroad, those who are tended to recognize the right to vote, the normative trend emerges for example of the law of March 8, 2006 n. 124, of the D.M. On April 5th, 2002 and of the article 18 of the law n. 91 of 1992, must refuse any relief to the new regulation on the parity of opportunities of the fourth motive, absorbed by the welcome of the challenging.

 

 5. In conclusion, the resource of Elia is founded, independently of the declaration of her ascendant Angelina Costanze of wanting to recover the citizenship, having to be considered to be such a produced effect, to passing of the January 1st, 1948, of the judgment of the Court Const. n. 87 of 1975, with analogous consequences, of the same date, for the father of the appellant, son of civil mother right haven to the condition because of the indicated filiation, in reason of the judgment of the Judge of the Laws n. 30 of 1983 and of the end of the preeminence of the husband in the life of the family and the procedure that regulate it.

 

Such a recognition cannot also refuse in case of death of the ascendancies of the appellant, except that they should have had, for these, resigns the citizenship always consented by laws happened in the time (article 8 L. n. 555 of 1912 and 11 L. n. 92 of 1991), resigns of the one that must give prove in this sedates the one who is opposed to the recognition of the right.

 

And in relation to the exercise of the faculty of resignation to the citizenship and to the application of the principles of good administration of the article 97 of the Const., that has foreseen the declaration of the article 219 of L. n. 151 of 1975 for the repurchase of the citizenship: it is a question of a document necessary for the recognition in there sedates administrative officer of the citizen's condition(state) of the woman and of her descendants, checker the lack of a resignation to the citizenship and with not constitutive effects.

 

The declaration is necessary with other formalities, because directed the competent authority, it links the Home Office to the recognition with decree, of the condition already recovered by law.

The same document does not have on the other hand the same decisive relief for the jurisdictional guardianship of the citizen's condition, recovered automatically by the irrelevancy struck of the declared law constitutionally illegitimate, that makes stop the lasting effects of the same one in the time, still in witness of the conjugal relation of the woman on the basis of the loss, which from 1948 cannot give place to the privation of the condition.

 

Is duty has to enunciate because of it principle of right: " The ownership of the Italian citizenship is recognized in sedate judicially, independently of the declaration emitted for interested in the sense of the article 219 of the law n. 151 of 1975, to the woman who has lost it for having married a foreign citizen previously to the January 1st, 1948, in all that the loss without the will of the titular citizenship is an effect perdurante, after the indicated date, of the unconstitutional norm, effect that contrasts with the principle of the parity of the sexes and of the juridical and moral equality of the spouses (articles 3 and 29, Const.).

 

 

For the same principle, re-acquires the Italian citizenship from the January 1st, 1948, also the son of woman in the said situation, born before such a date and in the vigence or of the law n. 555 of 1912, determining the relation of filiation, after the entry into force of the Constitution, the transmission to him of the citizen's condition, which had corresponded to him for right without the discriminatory law; of the latter at the time the condition, for the relation of paternity, must transmit the daughter, appellant in this one sedates and which must be recognized".

 

In the sense of the article 384 c.p.c., this Court, received the resource, debit at the time to marry the opposed judgment that has applied diverse principles and to receive the demand of Elia , not being proved by the Home Office done obstatives  to the recognition and the citizen's condition(state) must be considered to be acquired automatically by the appellant, to the date of the birth (September, 1962), for the invoked reasons.

 

To the recognition they must continue the formalities of law to arranging in incidental route; the jurisprudential uncertainties in the matter justify the total compensation of the expenses of the whole judgment between the parts.

 

The Court receives the resource, case the opposed judgment and, deciding about the merit about the sense of the article 384 c.p.c.:

 a) She receives Elia Mariam's demand, born in Cairo (Egypt) on September 4th, 1962 and declares her an Italian citizen; 

b) She orders the Home Office and, because of it, the Official of the competent marital status, to proceed to the inscriptions, transcriptions and annotations of law, in the record of the marital status, of the citizenship of the indicated person, providing the temporary employees communications to the consular competent authorities; compensates the expenses of the entire judgment between the parts. This way decided about the chamber of advice of the United Sections of the Supreme Court of Cassation on February 3, 2009. 

 

 

 

 

 



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CASSATION J.S. Judg. 4466 English
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