The Court of Appeals of Genoa overturns the first instance judgment and recognizes Italian citizenship to Brazilian descendants of a Ligurian emigrant who left before the Unification of Italy (born in 1811)
It is the State that must demonstrate an interruption in the transmission of citizenship. In this case, the Ministry of the Interior did not prove that the ancestor had definitively renounced his status as subject. The Court of Appeals of Genoa reinforces this principle, affirming that, since it concerns a fundamental right, it is not admissible to invert the burden of proof through the fiction of a “probatio diabolica”. Emigration prior to the unification of Italy does not imply, by itself, the loss of citizenship
GENOA, October 28, 2025. The Civil Court of Appeals of Genoa, sitting in deliberation and composed of Dr. Marcello Castiglione (President), Dr. Franco Davini (Reporting Judge) and Dr. Giovanna Cannata (Judge), issued judgment no. 1152/2025, which constitutes a significant precedent in the matter of recognition of Italian citizenship iure sanguinis for descendants of emigrants born in Italian territories prior to national unification.
The appellants had obtained jurisdiction before the Court of First Instance of Genoa, demonstrating the impossibility of obtaining appointments at the consular offices in their country of residence, configuring the factual situation known as “infinite waiting list”. The Court of Appeals confirmed the correctness of this determination of territorial jurisdiction, emphasizing that the administrative procedure does not constitute a condition of admissibility for initiating judicial proceedings.
The legal framework examined
In examining the claim, the Court of First Instance had recalled the successive normative provisions that, over time, since the birth of the Italian ancestor, regulated Italian citizenship:
• Civil Code of 1837 (Albertine Code);
• Civil Code of the Kingdom of Italy, of June 25, 1865 (in force from January 1, 1866);
• Law no. 23 of January 31, 1901;
• Law no. 217 of May 17, 1906;
• Law no. 555 of June 13, 1912;
• Law no. 91 of February 5, 1992.
In the specific case, the Court of First Instance had considered applicable the Albertine Code, whose Article 34 provided for the loss of citizenship in the event of emigration accompanied by a clear and definitive intention not to return to the Kingdom.
Based on elements such as:
• undertaking a long and dangerous journey at a time when means of transport were limited,
• the ancestor’s marriage to a Brazilian woman in the place of destination,
• the birth and development of his entire lineage in Brazil,
• the establishment there of his economic, family and social nucleus,
• the death and burial of the ancestor and his descendants in that territory,
• the absence of even temporary returns,
• and the lack of sustained material and emotional ties with Italy,
the lower Court had presumed the intention not to return to Italy, dismissing the claim.
The key to the appeal: the burden of proof
The descendants challenged this interpretation, arguing that:
- The burden of proving the loss of citizenship lies with the State, not with the citizen.
- Residence abroad and the formation of a family do not constitute proof of renunciation, since citizenship is a legal and political status that is not extinguished by social circumstances.
- In matters of loss of citizenship, presumptions cannot operate, as renunciation must be express, voluntary and unequivocal.
The Court of Appeals upheld these arguments and recalled that:
• The descent of the appellants from a subject of the Kingdom of Sardinia, which since 1814 included Liguria, is not in dispute.
• It is not in dispute that the subjects of the Kingdom of Sardinia automatically became Italian citizens upon the proclamation of the Kingdom of Italy.
• Therefore, emigration prior to the unification of Italy does not, in and of itself, imply the loss of citizenship.
Essential jurisprudential reference
It is the State that must demonstrate an interruption in the transmission of citizenship. In this case, the Ministry of the Interior did not prove that the ancestor had definitively renounced his status as subject.
The judgment of the Supreme Civil Court, Joint Sections, August 24, 2022, no. 25317, states:
“Given that Italian citizenship by birth is acquired originally iure sanguinis and that the status of citizen, once acquired, is permanent, imprescriptible, and may be asserted at any time, any person who has an interest in obtaining citizenship is required only to demonstrate the fact of acquisition and the line of transmission; on the contrary, it is for the opposing party, who raises an exception, to demonstrate the possible existence of a circumstance interrupting the iure sanguinis transmission line going back to the ancestor.”
The Court of Appeals of Genoa reinforces this principle, affirming that, since it concerns a fundamental right, it is not admissible to invert the burden of proof through the fiction of a “probatio diabolica”.
It also clarified that the Albertine Code distinguished between loss of civil rights and loss of citizenship: permanent residence, marriage or death abroad were not sufficient to extinguish the status of citizen. An express and unequivocal renunciation was required.
Procedural issue: application of Decree 36/2025 (“Tajani”)
The Court also rules on a procedural issue of great relevance. Indeed, Article 2-ter of Decree 36/2025 (Tajani) states that:
“In disputes concerning the determination of Italian citizenship, the party requesting the determination of citizenship shall be required to attach and demonstrate the non-existence of the causes of non-acquisition or loss of citizenship provided for by law.”
The question arises as to whether this provision may also apply to this dispute, although it was initiated before March 27, 2025, since it apparently concerns a procedural rule and therefore the principle tempus regit actum would apply. The answer must be negative.
The principle tempus regit actum presupposes the absence of a transitional provision regulating the temporally applicable norm.
Article 1 establishes that, for all administrative or judicial applications prior to March 27, 2025, the regulatory framework in force until that date shall apply, without distinction between substantive and procedural norms.
Final reflection
The judgment orders the Ministry of the Interior to register the Italian citizenship of the plaintiffs and to notify it to the consular authorities. As a result, the descendants are recognized as Italian citizens by birth.
The ruling of Genoa consolidates a jurisprudential line that protects citizenship as a fundamental right, affirming its imprescriptible and permanent character. It also reaffirms that emigrating does not equate to renouncing one’s homeland, and that Italian identity is transmitted through the bond of blood, beyond time and distance.
Cesare Pavese wrote:
“It takes a people, if only for the pleasure of leaving. A people means not being alone, knowing that in people, in plants, in the land there is something of your own...”
The decision of the Court is of particular relevance for the communities of Italian descendants in Latin America. The case of this emigrant was that of many who left and never returned.
Italy remained within them: in the faces, in the scents, in the songs, in the memory transmitted.
And in those who follow them, it remains still as a profound sense of belonging to the humus of the peninsula.
Pablo Munini
Lawyer