Which court has jurisdiction over citizenship cases by right of blood?
One of the questions I am often asked is: can citizenship cases based on ius sanguinis, for those residing abroad, only be filed in Rome, or can they also be introduced in other courts?
So, would it be possible to pursue a faster path to recognition and propose it elsewhere?
In accordance with the provisions of paragraph 36 of Article 1 of the Civil Procedure Reform Law no. 206 of 26.11.2021, which entered into force on 24.12.2021 and amended paragraph 5 of Article 4 of Decree-Law no. 13 of 17.02.2017—which currently governs jurisdiction on this matter until the aforementioned deadline—territorial jurisdiction lies with the Court of the place of birth in Italy of your Italian ancestor. Proceedings shall be brought before the ordinary Civil Court with jurisdiction over that specific area.
The basic rule is that, in compliance with the principle of the natural judge established by law (Article 25 of the Constitution), the individual initiating the case must first determine the competent court based on subject matter, and if none is applicable, the competent court based on the monetary value of the claim, to then apply the rules governing territorial jurisdiction. The basic criterion is that the competent court is located where the defendant has domicile or residence, or if these are unknown, where the defendant has a place of abode.
While parties in a trial may, based on criteria established by the legislator, deviate from jurisdictional rules, the legislator has established some exceptions, including those set out in Article 25 of the Code of Civil Procedure (c.p.c.), which introduces the so-called TREASURY COURT or COURT OF PUBLIC ADMINISTRATION, an indispensable jurisdiction.
Article 25 c.p.c. states that for cases involving an “administration of the State,” jurisdiction is determined, pursuant to the special laws on State representation and defense in court and in the cases specified therein, by the court in the district of the State Attorney’s Office, where the court that would ordinarily have jurisdiction is located.
The legislator incorporated provisions established in Royal Decree no. 1611 of 1933, allowing for an automatic change in jurisdiction when one of the parties is a state administration, represented by the State Attorney. As such, to determine the competent court, one must first identify the ordinary court as per general rules, then the Court of Appeal to which the court belongs, and subsequently the tribunal where the Court of Appeal is based.
Considering the rules, in cases related to recognition of ius sanguinis citizenship where the petitioner resides abroad, general jurisdiction rules should apply. This means referencing the residence of the defendant. However, since this involves a case where a public administration is a party, Article 25 c.p.c. applies, making the Ministry of the Interior the necessary opposing party, and the case must be brought before the Court of Rome.
Furthermore, the second paragraph of Article 25 c.p.c., which would make the court of the location where the obligation is to be fulfilled the competent court, does not apply because, according to the writer’s opinion, the recognition of Italian citizenship cannot be considered an obligation under Article 1182 of the Civil Code. This stance was confirmed by the Supreme Court (Joined Sections), in Ordinance no. 11441 of June 18, 2004, which clarified that in matters of citizenship, reliance on general territorial jurisdiction rules… leads to mandatory competence being established in the location of the defendant—Central Administration of the State (Article 25 c.p.c.)… as the matter cannot be considered as involving an obligation under Article 1182 c.c. (thus making the court determined by Articles 20 and 25 c.p.c. regarding the location of the provision’s delivery inapplicable).
Nor can it be argued that any potential obligation could be found in the transcription of the recognition judgment and the petitioners’ documents in the municipality of the Italian ancestor’s birthplace. This is because:
- The subject of the claim (used to establish jurisdiction) is the recognition of ius sanguinis citizenship, while transcription concerns the execution phase of the judgment;
- The necessary opposing party is the Ministry of the Interior, not the Mayor of the municipality, to whom the judge directs the execution order, as in matters of population registry management, the Mayor serves as a Government Officer under Legislative Decree 267/2000.
This involves delegation of state functions directly related to the Italian State, and for this, the Ministry of the Interior is also responsible for overseeing population registry and citizenship records.
Finally, Article 17 of Presidential Decree 396/2000, which mandates that civil status acts of those born abroad be transcribed in the municipality of the mother, father, or ancestor’s birthplace, does not apply. This provision is found in Title IV of the decree, which pertains to the transmission of civil status acts of Italian citizens formed abroad by diplomatic or consular authorities.
Moreover, the Council of State reiterated that territorial jurisdiction in this matter must be identified “considering the impact of the provision on the individual’s status, with relevance to everyone and based on principles significant for the national community,” confirming jurisdiction lies with the specialized section of the Court of Rome.
The legislator addressed this by intervening with Decree-Law no. 13 of 2017, known as the Minniti Decree, establishing specialized sections in ordinary courts located in the seat of the Court of Appeal. Article 19-bis specifies that cases concerning the determination of Italian citizenship are under the jurisdiction of the specialized section where the authority issuing the contested act is based, taking into account the plaintiff’s domicile. However, since petitioners reside abroad, jurisdiction must be determined following the previously explained criteria.
In conclusion, my response to the initial question is that lawsuits concerning the determination of ius sanguinis citizenship, when the petitioner has no domicile in Italy, must undoubtedly be filed with the Court of Rome, specialized in immigration, international protection, and free movement of EU citizens.
There are no alternative jurisdictions, and filing a lawsuit with a different judge risks a declaration of lack of territorial jurisdiction, with the double consequence of not only wasting double the time but also incurring additional expenses since the filing costs would need to be paid twice.
