Marco Mellone Challenges the Constitutional Court: “Judges Speak Through Their Judgments, Not Through Press Releases”
Marco Mellone Challenges the Constitutional Court: “Judges Speak Through Their Judgments, Not Through Press Releases” During the hearing held on June 9 before the Italian Constitutional Court concerning the constitutional challenges to the so-called “Tajani Law,” referred by the Courts of Mantua and Campobasso, attorney Marco Mellone delivered a forceful and uncompromising argument in defense of the rule of law, legal certainty, and the fundamental rights of Italian citizens by descent. In a speech marked by both legal rigor and institutional candor, Mellone openly criticized aspects of Constitutional Court Judgment No. 63/2026, questioned the retroactive effects of the challenged legislation, and urged the Court to reflect upon its constitutional duty to safeguard fundamental rights. Below is an English transcription of the most significant portions of his intervention:
“Allow me to say one thing as well, Mr. President: it is not appropriate for this Court to communicate through press releases. Judges speak through their judgments, not through press releases, and certainly not fifty days before the reasoning of a decision becomes available.
From the moment that press release was issued, numerous national courts relied upon that announcement in their decisions, while we, as lawyers, had no way of knowing the Court’s legal reasoning, the scope of its arguments, or the grounds upon which that position was based. Everything rested on a press release alone.
The challenged provision is a measure that moves unmistakably toward unconstitutionality.
Anyone willing to see it can see it. Suffice it to note, in addition to the issues already identified in the referral orders, that the legislature, beyond everything else it has done, has imposed new retroactive requirements for Italian citizenship: being born in Italy or having a parent or grandparent who was exclusively Italian.
Now tell me: who chooses their place of birth? Who chooses the nationality of their father or grandfather? These are conditions that are impossible to satisfy today with respect to events that occurred in the past. The matter is clear, evident, direct, and immediate.
For this reason, I substantially rely on the submissions already filed in these proceedings. I will not comment extensively on Judgment No. 63 of 2026, although I regret having to say that I found in that judgment many elements that are scarcely legal in nature.
If the Constitutional Court of my country describes as ‘foreigners’ individuals who are Italian citizens from birth by operation of law; if it describes as ‘persons lacking any connection with the Italian community’ those whom the law has recognized as Italian citizens from birth; if it regards them as essentially strangers to the national community, then I must ask whether the judges of the Italian Constitutional Court personally know even one of the millions of Italian citizens who were born and live abroad.
Do you know them all? Can you state with certainty that every person born abroad lacks ties to Italy or to the Italian community?
In that judgment, the Court went so far as to write that where a legislative reform proposal is pending before Parliament, a citizen should foresee the possibility that such proposal may be enacted and that the legislature may therefore retroactively attribute consequences to that citizen for failing to conform to legislation that did not yet exist.
Does the Court realize, Mr. President, that under such reasoning all of us would need to examine Parliament’s website every morning to ensure that no pending legislative proposal might later be applied against us retroactively?
The Court further stated in Judgment No. 63 that if court fees applicable to a particular legal matter are modified, a citizen should anticipate that the underlying substantive law may also change.
Then what follows? If tomorrow the court fee regime in public procurement matters changes, should an entrepreneur also assume that the entire Public Procurement Code may be retroactively amended?
There are statements contained in that judgment, Mr. President, that genuinely appear incapable of finding either logical or legal justification.
In my view, the most important aspect of that judgment is the Court’s recharacterization of the legal status of Italian citizens born abroad.
The Court suggests that a person born abroad to an Italian parent is not an Italian citizen from birth, but only becomes one when an administrative official formally recognizes that status.
In other words, the Court appears to attribute a constitutive, or at least perfection-producing, effect to administrative recognition.
Yet the children of Italian citizens, whether born in Italy or abroad, are always subject to administrative verification.
This is self-evident. No child is born with the words ‘Italian citizen’ written on their forehead. Following birth, the child is registered with the civil registry, whether two, three, four, or five days later. From that moment, with retroactive effect to the date of birth, the child is regarded as an Italian citizen.
We are all Italian citizens by descent because we were born Italian if our parents were Italian, regardless of whether we were born in Italy or abroad.
If the birth occurs abroad, the only difference is that the parent notifies the consulate, which forwards the birth record to the relevant Italian municipality for registration. Nothing more.
Furthermore, for 160 years, both legislation and jurisprudence — what this Court itself refers to as the ‘living law’ — have consistently affirmed this principle.
This is not a theory invented today by attorney Mellone. It has always been understood in this field of law, and the Court of Cassation reaffirmed it only a few weeks ago.
Therefore, Mr. President, I see only one possible course: a further and deeper reflection on this issue.
Three appeals are currently pending before the Joint Chambers of the Court of Cassation. They were argued on April 14, and the First Chamber expressly requested that the Joint Chambers establish a principle of law regarding the scope of application of the challenged provision.
The question is straightforward: to whom does this provision apply, and how does it apply?
A ruling is expected within days or weeks. Let us wait for the Joint Chambers. Let us hear what they have to say. If necessary, let these proceedings be adjourned; if necessary, let them be restored to the docket. Choose whichever procedural mechanism is appropriate.
But first, let us hear from the body entrusted in this country with ensuring uniform interpretation of the law and with defining legal categories and statuses.
That was the substance of the first procedural motion I filed last Friday.
There is also a new factual development since the Court’s judgment following the March 11 hearing.
In that decision, the Court stated that these individuals had never exercised rights arising under European Union law and therefore could not invoke the protection afforded by the European legal order.
Yet only last week one of my clients received a job offer from a Member State of the European Union, offering immediate employment and substantial remuneration, conditional solely upon his ability to enter the territory of the Union.
The relevant documentation is contained in the second procedural motion filed last Friday.
This demonstrates that the issue is not hypothetical or abstract, as Judgment No. 63 suggests. It is concrete. It concerns real lives.
Even today, individuals who have not yet obtained formal recognition of their Italian citizenship are suffering tangible consequences.
And they have not failed to obtain recognition through any fault of their own, Mr. President, but because of the inefficiency of the Italian State.
These individuals did not turn to the courts because they had nothing better to do. They sought judicial protection because the State administration denied them recognition of their status.
In some cases, solely because they descend from an Italian woman.
It is astonishing that, even in 2026, we are still discussing distinctions between the children of Italian women and the children of Italian men.
That is also the subject matter of the second procedural motion.
I will conclude with this observation.
I sincerely hope that the Constitutional Court will undertake this further reflection.
However, we must not forget that we are dealing here with fundamental rights.
Accordingly, I request that the record of today’s hearing expressly reflect that this defense, in accordance with the procedural requirements applicable before the European Court of Human Rights in Strasbourg, reserves the right to challenge any future decision that may violate my clients’ fundamental right to respect for their private life, as protected by Article 8 of the European Convention on Human Rights.”