Hi All,
I kept my previous message brief in an effort to keep things simple. I wanted to write a more in-depth message explaining the issue with the ruling and sharing exactly what our lawyer said to us. If you aren't that interested, this is a message that you can skip.
I also wanted to share the response that another person whose case was rejected by Judge Pezone named Todd got from his lawyers when bringing up this same issue. Todd's team is more optimistic that things will work out for us and these cases, and they back it up with pretty good evidence. I really hope that they are right!
- - - - - - - - -
- - - - - - - - -
Here are the questions that I asked out lawyer and his responses. (This was sent by Whatsapp message, so I have kept the breaks between messages, just as he wrote them.)
Hello. It sounds like there was a Court of Cassation ruling that could affect our case. It was case/decision 17161 from 15 June, 2023. Can you help me understand if this affects our case?
I hope so much that this message finds you well and thank you for your patience.
I am aware of the ruling published last July unfortunately represented an unexpected breakthrough on the citizenship of minor children of naturalized foreign parent after 1912
Unfortunately, this ruling confirmed precisely the negative orientation that some Rome court judges had initially taken including the one who initially handled your case
This means that for the time being, the positive argument adopted by the Rome Court of Appeals and to which we referred in our appeal process remains defeated
Unfortunately, the Supreme Court in our system assumes a role aimed at directing and conforming the decisions of the lower courts
This means that any future decision of on this issue taken by the lower courts must conform to the Supreme Court's assumed orientation
This is as long as it is as long as the Supreme Court's guidance remains this and does not change further in the future as appeals are received before the Supreme Court Against the negative rulings of the appellate courts
Unfortunately, this means trivially that as things stand, Assuming of course that the judges of the Court of Appeals also know this ruling and intend to comply with it, The chances of success in your case are drastically reduced
I cannot rule out a stroke of luck such as for example an oversight of the judges or even the issuance of a Supreme Court ruling drawing opposite before the decision of your case occurs but wanting to base the prognosis on the principles of reasonableness at this time I do not see for this type of case a particularly rosy future
Whether the Supreme Court will be put in a position to revise this guidance or unfortunately even uphold it will depend on the willingness of how many people will want to take the path of appealing the negative rulings of the appellate courts that are most likely to be issued as of now
I am very sorry to give this news but this is the current state of affairs. However, I will continue to do my best in your process to make the most of even the slightest chance that remains in our favor.
However, please feel free to contact me for any information or clarification.
Thank you for your explanation. It is helpful. I have heard that this ruling was only issued by a part of the Supreme Court and that there could be a higher level or a larger panel of the Supreme Court that could make a more significant ruling. Is this the case?
This information is absolutely correct. The ruling was issued by the Supreme Court in its simplest composition, so to speak. If in the future the Supreme Court were to issue a ruling to the contrary any subsequent cases arriving the Supreme Court could be attributed to the Supreme Court in its highest composition to in turn equalize the decisions Of the Supreme Court in its simplest composition.
It's a bit of a cumbersome system but I hope the concept is clear
- - - - - - - - - -
- - - - - - - - - -
And here is the response that Todd got from his attorneys:
There is indeed a ruling from the Supreme Court that rejected a case with minor issue (Decision 17161 of June 15, 2023), as opposed to the general trend of the Court of Appeal (who approved the vast majority of these cases so far).
For what concerns Consular cases: we don’t think this ruling will necessarily affect the decisions made by the Consulate for administrative cases. If Supreme Court rulings were automatically applied by Consulates, the United Section ruling of the Supreme Court of 2009 would impose that Consulates accept 1948 cases, which is not the case, as we know.
Please note there are also rulings from the Supreme Court - United Sections (so, the most authoritative) from last summer that completely oppose the above view. They are rulings no. 25317 and 25318 dated July 12, 2022. These ruling were issued for Brasilian applicants whose ancestor became automatically naturalized because of a Brasilian law in force at the time. These rulings determined that Italian citizenship cannot be lost without a voluntary act; these principles are clearly opposed to those proclaimed in the most recent ruling.
For what concerns pending appeal cases at the court of Rome: the Court of Appeals in Rome became aware of this ruling and they are taking into account this opinion. However, the cases that we heard by the Court of Appeals after 15.06 were not immediately rejected. Instead, the court just scheduled a further hearing (Feb. 2024 for now) to allow us to replicate.
We actually believe we found the reason for this gross misinterpretation of the law.
We recently noticed that these judges are quoting art. 12 of Law n. 555 of 1912 to back the above argument. The problem is that they are incorrectly quoting that article. Although we always correctly quote art. 12 in our argumentation, we noticed some judges copied/pasted the text from a website (first result on Google Search) where the text of the law has been incorrectly transcribed.
The way they quote art. 12 reads: “Unemancipated minor children of those that lose Italian citizenship also become foreigners when they share residency with the parent exercising parental responsibility and also share (with said parent) citizenship of a foreign country.”
However, if you compare the text of the article with what is published on the Official Gazette, it actually says: “Unemancipated minor children of those that lose Italian citizenship also become foreigners when they share residency with the parent exercising parental responsibility or legal custody and they also acquire citizenship of a foreign country.”
As you can see, this completely changes the meaning of the article. If you look at the article the way it is on the official version, the article would not apply to cases where the next-in-line was born in a country where he/she was considered a citizen by birth (jure soli); in fact, in this cases the foreign born child would not be acquiring a foreign citizen along with their parent (they were already considered citizens of said country by virtue or being born there).
Based on the text as quoted by the judge, on the other hand, the disposition of art. 12 would have applied to this case as both parent and child did share a common foreign citizenship.
We found that the ruling from the Supreme Court is based on the same quoting error (art. 12).
We will - of course - be bringing to their attention the above described matter so that the case can be evaluated on the correct premises. We are hoping to set the record straight on this matter, as it looks like judges are ruling on these cases on false premises.
Please note that, although the Supreme court is a higher court, the Court of Appeals does not need to comply with their rulings if they are proven that said ruling was issued on wrong premises (so, we need to prove that a mistake was made). And, in fact, they did allow us time to file a reply on the matter. Hopefully, this will give us the chance to set the records straight for all similar cases.
- - - - - - - - - -
- - - - - - - - - -
That's it for this message. I just wanted to flesh out what's going on with this Supreme Court case and give you two difference perspectives about what's the impact is on cases like ours.
Until Next Time,
Noah