1948 Case: Legislation, Court Decisions, and Jurisdiction

We have invited Italian lawyer Alessandra Galligani to help us understand the 1948 court case process. In a series of interviews, she will answer some of the most frequently asked questions.

Alessandra has over 15 years of experience in the field of Italian citizenship law and is registered with the Pistoia Bar Association, in Tuscany. She is also qualified to discuss in front of the highest court in the Italian judicial system, the Supreme Court of Cassation.

Do you have a question about 1948 court cases?

Table of Contents

• Q: Can you explain what a 1948 case is?

• Q: Can you outline the relevant legislation and co …

  • “Minor Issue”

• Q: Since June 2022, there has been a change regard …

• Thank You and Next Questions

Q: Can you explain what a 1948 case is?

A: A “1948 case” refers to a specific legal issue in the context of Italian citizenship law. Specifically, it is about discrimination against women due to the application of a law in place before the Italian Constitution came into force on 1 January 1948.

While the current Italian citizenship law, which came into effect in 1992, recognises the right of both parents to pass on their citizenship to their children, unfortunately, in the past, this was not the case. Under the old law, only Italian fathers could pass citizenship to their children (mothers could only in rare circumstances).

This means that applicants, whose Italian ancestry includes a female ancestor, must check the date she gave birth. If it was before 1948, they cannot apply for Italian citizenship through the administrative process (i.e. through the consulate or Comune, depending on the applicant’s residency).

Also, under the same old law, Italian women who married non-Italian men before 1948, or women married to Italian men who naturalised in a new country, were discriminated against because they lost their Italian citizenship as a result of their marriage.

This discrimination towards Italian women can be fought in court, and therefore the Italian citizenship can be recognised judicially. This is what is generally known as a “1948 case”.

Q: Can you outline the relevant legislation and court decisions for a 1948 case?

A: To understand why we refer to it as “1948 case”, it is necessary to look back at key legislative developments. These are the important dates to consider:

📜 1865 - Italian Civil Code (in force from 1 January 1886)

Article 4 established that an Italian citizen was the child of an Italian father.

📜 1912 - Law n. 555 (in force from 1 July 1912)

Article 1, paragraph 1, reaffirmed that Italian citizenship mainly followed the paternal line. Cases of transmission through the maternal line were residual and enlisted in paragraph 2 (i.e. father unknown or stateless, father did not transmit his citizenship).

This law also established the primacy of the husband's citizenship over the wife's:

Article 10, paragraph 3, stated that an Italian woman who married a foreign man lost her Italian citizenship, provided that the husband had a citizenship that, by virtue of the marriage, was transmitted to her.

Article 11, paragraph 1, stated that if the Italian husband became a foreign citizen, his wife, who lived with him, lost her Italian citizenship if she also became a citizen of her husband's new country.

📜 1948 - Italian Constitution (in force from 1 January 1948)

For the first time, the principles of gender equality (Article 3) and equality between spouses (Article 29) were introduced in Italy. From this date, men and women began to have the same rights. However, the effects of this were not retroactive, meaning that the equality was only applied from 1 January 1948 onwards.

The following Italian Constitutional Court decisions confirmed that women had a constitutionally guaranteed right to equality with men, by declaring discriminatory, and therefore unconstitutional, some provisions of the Law n. 555/1912:

⚖️ 1975 - Italian Constitutional Court (Sentence n. 87 of 16 April)

This ruling declared the unconstitutionality of Article 10, paragraph 3, of the Law n. 555/1912 in the part that provided for the loss of Italian citizenship independently of the woman's will.

⚖️ 1983 - Italian Constitutional Court (Sentence n. 30 of 28 January)

This decision declared the unconstitutionality of Article 1, paragraph 1, of Law n. 555/1912 in the part where it did not provide that the child of an Italian mother was also a citizen at birth, and the unconstitutionality of paragraph 2, of the same Article, in the part where it linked the transmission of maternal citizenship only to exceptional cases.

⚖️ 2009 - Italian Supreme Court of Cassation (Sentence n. 4466 of 25 February)

Italy's highest court ruled that the right to Italian citizenship is “permanent and imprescriptible” and that can therefore be claimed at any time, even after the original loss due to a law, later declared unconstitutional.

Therefore, the Court established that the effects of gender equality, and legal and moral equality between spouses, guaranteed by Articles 3 and 29 of the Italian Constitution, should have a retroactive effect beyond the Constitution's entry into force.

“Minor Issue”

Another separate aspect to consider within a 1948 case is the so-called “minor issue”, which concerns the loss of Italian citizenship for minor children born as foreign citizens abroad following their parents’ naturalisation. There have been two significant rulings from the Court of Cassation that have sparked debate on this matter. These are:

⚖️ 2023 - Italian Supreme Court of Cassation (Decision n. 17161 of 15 June) 

⚖️ 2024 - Italian Supreme Court of Cassation (Decision n. 454 of 8 January)

Not all local courts are following these precedents (in Italy, previous decisions are not binding, even if issued by high courts). This topic represents one of the complexities of Italian citizenship law and would require a separate, in-depth interview, which I would be happy to provide if you are interested in learning more.

Q: Since June 2022, there has been a change regarding the jurisdiction of courts that can decide on 1948 cases. These are now filed in local courts. Can you describe the new rule?

A: As you mentioned, until June 2022, the Court in Rome was responsible for handling these cases. Due to the high volume of requests, the plaintiffs often had to wait many years for a hearing date in Rome.

To address these delays, a new law introduced a rule to determine the relevant court for each case:

• If the plaintiff resides abroad, the competent court is the one located in the district of the court of appeal based on the place of birth of the Italian ancestor.

• If the plaintiff resides in Italy, the competent court is the one located in the district of the court of appeal where they reside.

This rule is compulsory, therefore it is not possible to choose where to file the case.

In the first months following the new law, local courts processed cases more quickly; hearings were scheduled in less than a year, sometimes in as little as six months. However, as local courts have become more burdened, especially in regions with high levels of emigration, such as Genoa and Venice, waiting times are increasing.

In addition to these varying timelines, it is worth noting that since court decisions in Italy are not binding, different courts may follow different legal interpretations.

Thank You and Next Questions

Thank you for your time, Alessandra, and for your clear explanation of what 1948 cases are. Sharing your knowledge and experience, especially your breakdown of the relevant legislation and court decisions, are very much appreciated.

We look forward to having you back for our next interview. In the meantime, our readers can send us their questions about 1948 cases to [email protected], and we will choose the most frequently asked ones.

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