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Italy: Constitutional Court Issues Decision on Citizenship Oath

(Jan. 18, 2018) On November 8, 2017, the Italian Constitutional Court issued a decision on requiring an oath of citizenship from an immigrant whose disabilities prevented her from taking it. (Decision No. 258 of November 8, Issued in a Constitutional Legitimacy Case by Incidental Procedure (the Decision), GAZZETTA UFFICIALE [OFFICIAL GAZETTE, G.U.] (Dec. 13, 2017) (in Italian), G.U. website.)

The Decision declared article 10 of Law No. 91 of February 5, 1992, unconstitutional because the article does not exempt from the citizenship-oath requirement a person who is incapable of taking the oath due to serious and proven conditions of disability.  (Id., holding 1; Law No. 91 of February 5, 1992, New Rules Governing Citizenship (G.U. Feb. 15, 1992) (in Italian), Normattiva website.)

The Decision also denied the Ordinary Tribunal of Modena’s request that the Court declare unconstitutional article 7, paragraph 2 of Presidential Decree No. 572 of October 12, 1993, and article 25, paragraph 1 of Presidential Decree No. 396 of November 3, 2000. (Id., holding 2; Presidential Decree No. 572 of October 12, 1993, on the New Rules Governing Citizenship (G.U. Jan. 4, 1994), (in Italian), G.U. website; Presidential Decree No. 396 of November 3, 2000, Regulations for the Revision and Simplification of the Civil Status Resolution (G.U. Dec. 30, 2000) (in Italian), G.U. website.)

Background of the Case

The case under consideration involved a minor female petitioner affected by partial epilepsy and severe mental retardation. The Court noted that during the hearing to test her competence to provide the required oath, the minor appeared “disoriented in time and space.” (Decision, holding 2 (all translations by author).)

The Ordinary Tribunal of Modena then raised the issue of the constitutionality of several Italian legal provisions because the provisions, which required immigrants to provide an oath in order to obtain Italian citizenship, did not exempt persons with disabilities that prevent them from taking such an oath. (Id., holding 1.)

Applicable Rules

The Constitutional Court reviewed the constitutionality of the challenged legal provisions in light of international conventions ratified by Italy—in particular, the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and the United Nations Declaration on the Rights of Disabled Persons (DRDP). (Id., holding 1; CRPD, Mar. 30, 2007, 2515 U.N.T.S. 3, UN Division for Social Policy and Development: Disability website; G.A. Res. 30, DRDP (Dec. 9, 1975), UN Office of the High Commissioner for Human Rights website, ratified by Italy through Law No. 18 of March 3, 2009 (in Italian), Normattiva website.)

The Court noted that Law No. 91 of 1992 established that Italian citizenship may be granted by a Presidential Decree to foreigners who legally reside in Italian territory for at least ten years. (Decision, considerations of fact 3, ¶ 2.) Article 10 of the same Law provided that the decree granting citizenship becomes null and void if within six months from the date of the notification of the decree the beneficiary does not take an oath to be loyal to the Republic and abide by the Constitution and the laws of the State. (Law No. 91 of 1992, art. 10.) In addition, Law No. 91 required that the oath for the acquisition of citizenship be given before the civil official of the municipality where the beneficiary resides or intends to reside or, if residing overseas, before the diplomatic or consular authority of the place of residence. (Id. art. 23, ¶ 1.) The Court considered that the lack of a regulation for a situation where the beneficiary is unable to take the oath due to serious mental illness constituted a “normative lagoon” or otherwise “a contrast of the normative fabric with respect to the constitutional parameters.” (Decision, considerations of fact 3, ¶ 4.)

In an intermediate ruling in the case, the Tribunal of Bologna upheld a previous ruling issued by the Council of State in 1987 according to which the oath constituted a right and duty of the beneficiary that had to be exercised personally and could not be delegated to her legal guardian. (Id., considerations of fact 4, ¶ 2.)

Initially, the Court examined the argument that the beneficiary’s inability to understand the nature and legal and moral consequences of the oath were an obstacle to her obtaining citizenship altogether. (Id., considerations of fact 6.) The Court contrasted this argument with reasoning based on article 2 of the Constitution that mental disability may not deprive a person from the acquisition and enjoyment of a fundamental right, which in this case is the status of citizenship. (Id., considerations of fact 7, ¶ 1; Costituzione della Repubblica Italiana [Constitution of the Italian Republic] art. 2, Italian Senate website.) To accept the contrary of this reasoning would mean that legally and in fact there would be two classes of persons vis-à-vis the enjoyment of constitutional rights: those with disabilities and those without, and that hypothesis is unacceptable. (Decision, considerations of fact 7.1.)

The Court noted that article 18 of the CRPD provides that “the right to citizenship may not be denied and therefore the disabled have the right to acquire and change citizenship and may not be deprived of the same arbitrarily or on the basis of their disability.” (Id., considerations of fact 7.2, ¶ 1.)

The Court also noted that the general legal framework of Italian legislation on disabilities favors overall social integration (see Law No. 104 of 1992, on the Assistance, Social Integration and Rights of Handicapped Persons, Feb. 5, 1992, Normattiva website), thus bringing a “radical change of perspective with respect to the very way of dealing with the problems of people affected by disabilities.” (Decision, considerations of law 9, ¶ 1.) The Court concluded that the inability of a person affected by a disability to acquire citizenship may constitute a form of social exclusion that deprives the person of a sense of belonging to the national community and may also become a form of marginalization even with respect to other family members who have acquired citizenship. (Id., considerations of law 9, ¶ 1.)