While some Italian citizenship by descent applications are submitted at an Italian consulate, alternatively some must go through a judicial proceeding with a “1948 case”. If you are petitioning the Italian courts for citizenship by descent, you may have questions regarding the legal process, how the case is filed, and if you are able to choose the judge presiding over the case.

This article will answer relevant questions pertaining to filing a 1948 case.

Eligibility for a 1948 case

First, we will review the situations where you would have a 1948 case. The 1912 Citizenship Law established that Italian citizenship would be passed down jure sanguinis, or “right of blood”, provided that the Italian ancestor did not acquire foreign citizenship before the next descendant was born. This establishes an unbroken chain of citizenship between the Italian-born ancestor and their descendants.

However, the 1912 law did not permit women to pass citizenship down to their children. Then, with the ratification of the Italian constitution on January 1, 1948, women were granted the same right as men, to pass citizenship down to their children born after this date. In this case, you would be able to file your application at an Italian consulate or municipality. However, if the woman in your Italian lineage gave birth before this date, you will be unable to do so. Recently, court cases have challenged this as unlawful and discriminatory and now the legal precedent states that principles in the constitution should be applied retroactively, including events that occurred prior. Therefore, if there is a woman in your Italian lineage who gave birth to her child outside of Italy before January 1, 1948, you can file a citizenship claim via the Italian courts, called a “1948 case”, and will have very high chances of obtaining Italian citizenship.

Another type of 1948 case involves the automatic and involuntary naturalization of Italian women. Before the US Cable Act in 1922, a woman’s citizenship status was linked to that of her husband. For example, when a foreign woman married a male US citizen, she automatically acquired US citizenship as well by virtue of the marriage and without filing naturalization papers or taking the oath of allegiance. Similarly, an Italian woman married to an Italian man who voluntarily acquired US citizenship (before 1922), acquired US citizenship herself, automatically and involuntarily, through her husband’s naturalization.

Based on recent cases, Italian Constitutional Court judgment n. 87 of 1975 and the Italian Supreme Court judgment n. 4466 of 2009, a lawsuit can be filed on the basis that the previous laws were discriminatory against women and that the Italian-born female ancestor who obtained foreign citizenship involuntarily and automatically could and should have been able to transmit her Italian citizenship to the next generation and subsequent descendants.

Therefore, if you have an Italian-born female ancestor who obtained foreign citizenship involuntarily and automatically by virtue of her marriage, you can file a petition for Italian citizenship via the Italian courts, which is also considered a “1948 case”, because she had her child before January 1, 1948.

Preparing for your 1948 Case

To file your 1948 case, it’s first necessary to compile the relevant documentation for your lawsuit, including the vital records for everyone in the Italian lineage (birth, marriage, divorce and death) and the naturalization records pertaining to your Italian-born ancestor or proof they never naturalized. These certified records also need to be legalized by means of an apostille and translated into Italian.

As of June 2022, if you live abroad, your lawsuit needs to be filed at the court covering the jurisdiction of the municipality where your Italian ancestor was born. You do not need to be present in Italy to file the case or attend the hearing. By signing power of attorney, you are able to have Italian legal representation throughout the entire process.

Judge Assignment and Filing

Many often wonder if it’s possible to choose the judge assigned to their 1948 case. Unfortunately, petitioners or attorneys are not able to choose the judge for the case. Once the case has been filed, it is the responsibility of the president of the court to identify and assign a judge to the case.

In order to file the claim, it is first necessary to pay a filing fee. This fee is €600 for citizenship by descent cases, plus a revenue stamp duty fee of €27.00. Your attorney will then file the initial petition along with supporting documents with the office of the court’s clerk. The case will receive a unique reference number, R.G. (ruolo generale) and will be sent to the president of the court. They will then identify a judge for the case based on a variety of factors such as judge availability. In some cases, the president of the court assigns the case to themselves. Also, in some courts that are divided into multiple divisions, the case is assigned first to the appropriate division, and then the president of that division appoints a judge.

You will also be able to monitor the case on the Giustizia Civile app, a mobile phone application. You will be able to see all relevant details pertaining to the case, including the name of the judge, hearing dates, and status updates. It will also show the eventual outcome of your petition. 

After the hearing, a decision is usually made within 3 months, depending on the judge and complexity of the case. In some cases, a second hearing is scheduled. With a positive ruling, the decision is filed with the court clerk’s office and there is a waiting period of 60 days before the decision is final and no longer subject to appeal. At this time, your attorney will be able to retrieve a certified copy of the final judgment from the court (sentenza con passaggio in giudicato). This final judgment is then registered with your local Italian consulate, which then sends it along with your vital records to the municipality where your ancestor was born. This process of registering your records in Italy officially recognizes you as an Italian citizen.

Conclusion

For those with a 1948 case, the court process may seem overwhelming and often leads to many questions. This article has aimed to provide answers to these common questions and outlined helpful information related to the filing of 1948 cases. Should you need further assistance or have additional inquiries, don’t hesitate to contact us at info@italiancitizenshipassistance.com.