Italy – Court of Naples (Contentious - Civil Court, XIII division), first instance order ex article 702bis et seq. Civil Code of Procedure, issued on 2 March 2022, docket no. 14558/2020)

The applicant, after having received statelessness status by a decision issued by the Court of Rome, applied for recognition of Italian nationality under Article 1(2) of Law 91/92 (which provides that: 'The child of unknown parents found in the territory of the Republic shall be considered a citizen by birth, unless the possession of another citizenship is proved'). This application was rejected by the municipality, the latter considering that the procedure provided for by Article 9(1)(e) of Law 91/92, which provides that Italian nationality may be recognised to 'stateless persons who have been legally residing in the territory of the Republic for at least five years', shall be applied instead.

The Court of Naples declared the Article 1(2) of Law 91/92 shall be applied in the specific case for the following reasons:

- Article 1(2) of Law 91/92 established a "presumption of birth on Italian territory" which could be rebutted only by a proof to the contrary, and such proof could only be proof that the person concerned had another citizenship (proof that was not possible in the specific circumstances, since it was undisputed that the applicant had a stateless status, having been recognised as such by the court in Rome);

- Stateless status has a "declaratory and not a constitutive" nature (as established by previous Supreme Court case law and in particular Supreme court decision no. 4823 of 4 May 2004 and Supreme court decision no. 16489 of 19 June 2019). Stateless status is by definition a situation of uncertainty and vulnerability which must therefore be limited;

- Article 1(2) of Law 91/92, providing for the automatic acquisition of citizenship (as confirmed by the previous Supreme Court decision no. 1053 of 14 January 2022) is precisely intended to prevent any statelessness status. 

- If the objective conditions for the automatic acquisition of citizenship laid down in Article 1(2) of Law 91/92 are met, the person concerned is granted a subjective right to citizenship which cannot be denied by the body responsible for assessing citizenship (i.e. the Ministry of Public Affairs).

In light of the above the Court of Naples declared the acquisition of Italian nationality by the stateless person concerned on the basis of Article 1(2) of Law 91/92.

Case name (in original language)
Tribunale ordinario di Napoli, sezione civile XIII, Pres. Rel. Est. Dott.ssa Grazie Bisogni
Case status
Decided
Case number
14558/2020
Citation
Italy – Court of Naples (Contentious - Civil Court), first instance order ex article 702bis et seq. of the Civil Code of Procedure, case 14558/2020
Date of decision
State
Court / UN Treaty Body
Civil Court of Naples (Tribunale ordinario di Napoli)
Language(s) the decision is available in
Italian
Applicant's country of residence
Italy
Relevant Legislative Provisions
  • 1954 Statelessness Convention
  • Italian Law no. 91 of 5 February 1992 (Italian law 91/92 or Italian law 91/1992) on New provisions on citizenship
Facts

The applicant had been declared stateless by the Court of Rome in a judgment based on the 1954 Statelessness Convention, on the grounds that he was 12 years old, had no identity documents, and was identified as a 'son of unknown parents'.

After having obtained the declaration of 'stateless', after a few months he had applied to the relevant municipality in the Naples district for recognition of Italian nationality under Article 1(2) of Law 91/92 (which provides that: 'The child of unknown parents found in the territory of the Republic shall be considered a citizen by birth, unless the possession of another citizenship is proved').

This application was rejected by the municipality, considering that the procedure provided for by Article 9(1)(e) of Law 91/92, which provides that Italian nationality may be recognised to 'stateless persons who have been legally residing in the territory of the Republic for at least five years' shall be applied instead.

Against this refusal, the applicant filed a complaint before the Court of Naples. 

Decision & Reasoning

The Court of Naples, after having decided on some procedural issues (i.e. after having established that the Ministry of the Internal Affairs should be a party to the proceedings in addition to the municipality, since it is the entity with powers to assess whether the objective conditions for the automatic acquisition of nationality laid down in Article 1(2) of Law 91/92 are met), established that:

- Article 1(2) of Law 91/92 establishes a 'presumption of birth on Italian territory' which could be rebutted only by proof to the contrary, and such proof could only be proof that the person concerned had another nationality (The Court of Naples noted that such proof was not possible in this case since the statelessness status was undoubtedly declared by the Court of Rome); 

- Statelessness status has a 'declaratory and not a constitutive' nature (as established by previous Supreme Court case law and in particular Supreme court decisions no. 4823 of 4 May 2004 and no. 16489 of 19 June 2019). Statelessness status is by definition a situation of uncertainty and vulnerability which must therefore be limited;

- Article 1(2) of Law 91/92, providing for the automatic acquisition of nationality (as confirmed by Supreme Court decision no. 1053 of 14 January 2022) is precisely intended to prevent any statelessness status. 

- In the presence of the objective requirements laid down by law for such automatic acquisition of nationality, a subjective right to nationality is conferred on the subject.

In light of the above the Court of Naples declared the acquisition of Italian nationality by the person concerned (having the status of a stateless person) applying Article 1(2) of Law 91/92 and ordered the transcription of this acquisition in the relevant registers.

Outcome

The applicant (a stateless person) obtained the Italian nationality on the basis of Article 1(2) of Law 91/92 which provides that: 'The child of unknown parents found in the territory of the Republic shall be considered a citizen by birth, unless the possession of another citizenship is proved').

Caselaw cited

Italian Supreme Court decision no. 4823 of 4 May 2004 

Italian Supreme Court decision no. 16489 of 19 June 2019

Italian Supreme Court decision no. 1053 of 14 January 2022