The judicial statelessness determination procedure in Italy

This contribution is part of DLA Piper Pro Bono project “Statelessness and Asylum Seekers’ Legal Clinic” which has recently won the Solidatas Social Award

  1. Introduction

Pursuant to art. 1 of the Convention of New York related to the Status of Stateless Persons of September 28, 1954 (the “Convention”), ratified in Italy by the Law n. 306/1962, a stateless person is “a person who is not considered as a national by any State under the operation of its law”.

That could be caused both directly by provisions of the law of that state (de jure stateless) or due to inability to prove identity (de facto stateless).

As pointed out by the Italian Council for Refugees (CIR) in its report of February 2013 (1)”the number of stateless people currently living in Italy is uncertain and likely underestimated. The majority appear to be from Socialist Federal Republic of Yugoslavia (“SFRY“). They were either already stateless while still living in SFRY or lost their nationality after the nation’s collapse. A considerable number of people spend their lives in legal limbo. Some families have been stateless for generations“.

Notwithstanding the big step forward for a better protection of stateless persons in Italy with the accession to the Convention of New York on the Reduction of Statelessness of August 30, 1961 (ratified by the Law n. 162/2015), Italy does not have a specific regulation of stateless matters yet.

At date, in Italy, the stateless status can be obtained by two ways: the administrative and the judicial procedure (2).

The first is largely considered as void, mainly due to the strict administrative requirements set by the relevant regulation (specifically, article 17 of Italian Presidential Decree No. 572/1993 (3)), especially with reference to the documents to file (birth certificate, documentation relating to residence in Italy and any other suitable documents demonstrating the stateless status of the applicant).

When (as often) migrants do not have the documentation requested by the administrative procedure, the judicial statelessness determination procedure is the only mean for the recognition of the stateless status.

Notwithstanding the lacks on the legislation, the recent case-law of the Italian Supreme and Civil Courts has defined the guidelines on the recognition of the stateless status, coming out with some positive developments, especially, with regard to the standard of proof on the applicant’s side.

In some cases, the Courts have granted some interim protection pending the outcome of procedures (including temporary permits of stay), originally allowed only pending the administrative procedure (4).

  1. The subjective requisites for applying to the judicial procedure

In order to lodge an application before Italian Courts, pursuant to the Convention, there are some negative requisites.

Specifically, the plaintiff shall not:

(i) be an Italian citizen and shall not have the requirements to acquire Italian citizenship;

(ii) be citizen of the country of birth, or is in possession of the requisite conditions for the possible recognition of citizenship;

(iii) have other connections with other States which will allow him to acquire possible alternative citizenships;

(iv) be receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance at the moment of the filing of the application and/or lodging the proceeding;

(v) have committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provisions in respect of such crimes;

(vi) have committed a serious non-political crime outside the country of their residence prior to their admission to that country;

(vii) have been guilty of acts contrary to the purposes and principles of the United Nations.

  1. The form and jurisdiction of the application

The form of the application for the judicial recognition of the stateless status is the ordinary proceeding (giudizio di cognizione ordinaria), pursuant to art. 101 of the Italian Code of Civil Procedure (5) against the Ministry of the Interior and with the compulsory intervention of the public prosecutor (pubblico ministero) according to art. 70 n. 3 of the Italian Code of Civil Procedure.

As well explained by the related case-law, the necessity arises from the fact that it is within the competence of the said Ministry to supervise the compliance to all rules regarding the recognition, the loss and reacquisition of citizenship (6).

Moreover, the Italian Supreme Court, by decision n. 7614/2011, clarified that “claims concerning the acquisition of nationality are under the jurisdiction of the Civil Court, since they relate to the status of the person”, solving the conflict of jurisdiction between administrative and civil tribunals.

With reference to the territorial jurisdiction, the competent Court has been identified with the Tribunal of Rome, since it is the Court of jurisdiction of the defendant’s seat, which is, as said, the Ministry of Interior.

  1. The recent case-law on the burden of proof

The recent Italian case-law, in line with the provisions of the international legal framework on international protection (which provides the necessity of protecting undocumented stateless persons), reduced the burden of proof for the applicants.

Specifically, the United Sections of the Italian Supreme Court decided that in order to assess the stateless status, a formalistic examination that takes into account only documentary evidence is not appropriate (7), conversely, an overall substantial evaluation (8) is preferable.

Moreover, in case of gap or lack of information or documentation, the court itself “by the exercise of officious power-duties, may require information or documentation to the competent public authority of the Italian State, to the State of origin or to any State with which the plaintiff has a meaningful connection” (9).

A recent decision by the Court of Rome made another step forward, clarifying that “for the recognition of the condition of statelessness a circumstantial evidence is sufficient , being the request of proof that no state considers that person its citizen is apparently devilish” (10) for this reason, given the difficulties involved in providing the negative evidence of the civitatis status, the case-law decided that “the proof related to the loss of previously held citizenship shall be considered as sufficient evidence” (11).

  1. The request of the interim permit of stay

Case-law provided that it shall also be possible to request a temporary permit of stay pending the outcome of the ordinary proceeding, in accordance with the provision of art. 700 of the Italian Code of Civil Procedure.

The said interim measure has been often granted by the Judge since necessary for the applicant in order to legally work in the Italian territory and, consequently, to allow him to pursue his basic needs (12).

Specifically, the Court of Rome, with decision of July, 6 2012 verified the existence of the two conditions requested by the said art. 700 of the Italian Code of Civil Procedure: (i) fumus boni iuris (the likelihood of success on the merit of the case) and (ii) the periculum in mora (the danger in the delay of an imminent and irreparable harm to the interests of the plaintiff).

With reference to the fumus boni iuris, the Court analysed the documentation provided by the plaintiff, and in particular, the certificate released by the competent authority of the State of origin which denied the citizenship.

With reference to the requisite of the periculum in mora, the Court of Rome specified that the danger, for a stateless person is in re ipsa “since the time needed for the definition of judgment in the ordinary way may leave the plaintiff without a valid residence permit on the national territory” (13).

  1. Conclusion

Also if the recent case-law has showed very important developments in this issue, in some ways supplying to the silence of the Italian legislative organs, much remains to be done to reduce the number of stateless people in Italy (and Europe) and to ensure that they can enjoy basic rights and have the chance to acquire a nationality. Hopefully, the recent ratification of the 1961 Convention will bring more attention to the problem of statelessness and the need to take further measures to respond to this problem.

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References

1) http://www.statelessness.eu/blog/roma-statelessness-italy-%E2%80%93-field-research-reveals-long-awaited-data.

2) The two processes are independent: stateless persons are not obliged to apply for the administrative determination procedure status before lodging the application to the Civil Court; see Italian Supreme Court, decision n. 28873/2008.

3) Pursuant to art. 17 of the Presidential Decree No. 572/93 (Certification of the Stateless Status) “The Ministry of Interior certify the condition of Statelessness, by request of the interest person accompanied by the following documentation:

  1. a) Birth certificate;
  2. b) Documentation attesting the residence in Italy;
  3. c) Any other document will be deemed appropriate to prove the status of stateless person.

The Ministry of Interior can request, depending on the case, additional documentation“.

4) Indeed, pursuant to art. 17, paragraph 1, letter c) of the Presidential Decree no. 394/1999, applicants are issued a permit of stay lasting until the finalization of the recognition procedure.

5) See Italian Supreme Court, United Section, decision n. 28873/2008 which solved the contrast with the previous orientation which provided the form of the rito camerale (see ex multis, Florence Court of Appeal, decision of May, 8 2009). Among Scholars, see Farci, P., Apolidia: un fenomeno conciliabile con le leggi dello Stato italiano?, in Dir. famiglia, 3, 2013, p. 1227 S.U. n. 28873 del 2008 who considers that the adoption of the ordinary cognition procedure to ascertain the status of statelessness created an unjustified difference in treatment with respect to the assessment of other personal status, such as, for example, refugee status, thus making it an unreasonably burdensome and onerous instrument.

6) See Court of Florence, decision of February 23, 2011.

7) See Italian Supreme Court, United Sections, decision n. 2338/2008.

8)See Italian Supreme Court, decision n. 2512/2013.

9)As clearly stated by Italian Supreme Court, decision n. 4262/2015.

10) See Court of Rome, decision of January 20, 2015.

11) See Court of Rome, decision of January, 14 2016.

12) See Court of Rome, decision of July, 6 2012.

13) See Court of Rome, decision of July, 6 2012.

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