The Supreme Court decision laid down the principle according to which the statelessness determination procedure requires evidence of: (i) the lack of nationality of the State with which the person has significant connections and (ii) the legal or factual impossibility of obtaining the nationality of that State.
Article 1, 1954 Convention on the Status of Stateless Persons
Italian Law no. 306 of 1962.
Serbian Law no. 134/2004.
The appellant’s mother was Yugoslavian and the appellant’s father did not confirm his paternity. The Judgment does not specify the appellant’s place of birth.
In 2013, the Tribunal of Rome declared the appellant stateless. The Italian Ministry of the Interior challenged the first instance judgment before the Court of Appeal of Rome, which confirmed the decision of the Tribunal of Rome. The Italian Ministry of the Interior then challenged the judgment of the Court of Appeal before the Supreme Court.
The appellant argued that she had met the standard of proof set forth by Article 1 of the 1954 Convention by providing evidence that she lacked a nationality.
In particular, the appellant submitted certain documents which proved that the appellant was not registered in the registers of the republic of Serbia. On this basis, the Tribunal of Rome and the Court of Appeal correctly declared her stateless.
The Italian Ministry of Interior maintained that the judgment was wrong as it was against:
- Article 1 of the 1954 Convention, which provides that: “the term “stateless person” means a person who is not considered as a national by any State under the operation of its law”. According to the Ministry of the Interior, such Section should be construed as meaning that a person should be declared stateless if he/she cannot concretely be granted the nationality of a state with which he/she has a significant connection. As such, in the first instance proceedings the applicant failed to provide evidence on the actual impossibility to acquire Serbian nationality, under Serbian law.
- Serbian Law no. 134/2004, Section 28, which provides for the possibility of acquiring nationality on the basis of a written declaration submitted by the person over 18 years of age, able to work and of Serbian or other nationality.
The Supreme Court found that the reasoning of the first and second instance judges was wrong as they considered sufficient the proof provided by the applicant on her lack of nationality, without further investigating if the applicant was entitled to Serbian nationality based on Serbian law.
In fact, the Supreme Court upheld the first argument put forward by the Italian Ministry of the Interior on the interpretation of Article 1 of the 1954 Convention, stating that: “In judgments concerning the verification of the status of a stateless person, the applicant is required to specifically allege that he/she does not possess the nationality of the State or States with which he/she has or has had significant connections, and that he/she is not in a legal and/or factual position to obtain its recognition in light of the applicable regulatory systems”.
In summary, in order for a person to be declared stateless, he/she must provide evidence of both:
- the lack of nationality of the State with which the person has significant connections and
- the legal or factual impossibility of obtaining the nationality of that State.
On this basis, the Supreme Court maintained that the applicant failed to provide evidence of the second condition required to be declared stateless.
The appeal before the Supreme Court was upheld. The Supreme Court then deferred the case back to the Court of Appeal, which will have to decide in accordance with the principle laid down by the Supreme Court.
Cassazione civile, 24/11/2017, n. 28153
Cassazione civile, SS. UU., n. 28873/2008
Cassazione civile, 21/06/2013, n. 15679
Cassazione civile, 03/03/2015, n. 4262