Constitutional Challenge to Italian Citizenship Law has Officially Begun

by Avv. Michele Vitale

The Italian citizenship constitutional challenge against the controversial “Tajani Decree” has officially begun, marking a pivotal moment for everyone seeking recognition of their Italian citizenship by descent (jure sanguinis). On September 17, 2025, the Court of Turin’s ordinance was published in the Gazzetta Ufficiale (Italy’s official government journal), formally sending the new law for review by the nation’s highest court.

This publication starts the clock on a legal battle that will determine the fate of countless individuals whose birthright to Italian citizenship was retroactively stripped away. This article breaks down what happens next and the core legal arguments at stake.

The Clock is Ticking: What Happens Next?

With the ordinance now public, a strict timeline is in effect. A 20-day period began on September 17th for all involved parties to file their statements and legal briefs.

Following this, the President of the Italian Constitutional Court will appoint a rapporteur judge and set a date for a public hearing, which is estimated to take place between February and March of next year. There is speculation that the case may be assigned to a magistrate who has previously handled citizenship matters with a favorable view toward protecting individual rights.

Significantly, this challenge will see the active participation of the State Attorney’s Office, representing the government in defense of the decree. This sets the stage for a robust legal debate, with further opportunities for rebuttal briefs before the hearing.

For everyone wondering what the timeline might look like after the public hearing (which we expect around Feb/March 2026), I looked at Sentence no. 142 of 2025 to see how long it took from the hearing to the final decision. Here’s the breakdown:

• Public Hearing: June 24, 2025
• Decision Was Filed (Deposited): July 31, 2025
• Official Publication in the Gazzetta Ufficiale: August 6, 2025

In that specific case, it took about 37 days from the hearing to get the actual ruling. Then, it was just another week for the official publication.

The Core Legal Arguments Against the Decree

The legal community’s focus is centered on several key arguments that expose the decree’s unconstitutionality. The primary points of contention in this Italian citizenship constitutional challenge include:

• Illegal Retroactive Application: The law’s most egregious flaw is its retroactive nature, which strips citizenship from individuals who were, by the previous law, Italian citizens from birth. For more context on the law itself, you can read our breakdown of the Tajani Decree, now Law 74/2025.
• Discrimination Against Dual Citizens: The decree unfairly targets and penalizes individuals holding another citizenship.
• Unconstitutional Provisions for Minors: The regulations concerning minor children are also believed to violate constitutional principles.
• Reversal of the Burden of Proof: The law places an undue burden on applicants to prove they do not fall under the new, restrictive conditions.

The retroactive approach of the Italian law also appears in stark contrast to the practices of other EU Member States. A comparative analysis reveals that no other country has cancelled citizenship rights already acquired without allowing a fair period for citizens to confirm their wishes. This anomaly raises the doubt of a conflict with EU law principles, opening the possibility of a preliminary reference to the Court of Justice of the European Union, which would add a further layer of scrutiny.

A Brief Recap: The Court of Turin’s Ordinance

The journey to this constitutional challenge began with a civil case where plaintiffs, with proven uninterrupted Italian descent, were challenging the Ministry of the Interior. Under the previous legal framework, their status as citizens from birth was a settled matter of law. This case represents one of the first cracks to appear in the new law’s constitutionality.

However, the “Tajani Decree” (D.L. 36/2025) introduced Article 3-bis, which retroactively states that anyone born abroad with another citizenship is considered to have never acquired Italian citizenship unless they meet stringent new conditions. The plaintiffs in the Turin case did not meet these exceptions.

The Court of Turin identified this as an “implicit revocation” of citizenship, infringing upon a right already acquired at birth. The judge raised serious doubts about its compatibility with several constitutional principles and international obligations, including:

• Articles 2 and 3 of the Constitution: The law violates the principles of reasonableness and legal certainty.
• Article 117 of the Constitution (International Obligations): The decree conflicts with EU law regarding European citizenship (Art. 20 TFEU) and fundamental rights charters like the Universal Declaration of Human Rights. For a deeper dive, see our analysis on the Constitutional Court’s Decision 142/2025.

This led the court to suspend its proceedings and transmit the case to the Constitutional Court, setting the stage for the critical process that officially begins now.

This official start of the constitutional review is a step toward protecting the rights of jure sanguinis Italian citizens born abroad. My blog will continue to provide updates on every development in this landmark case.

What This Constitutional Challenge Does Not Address

It is crucial to understand that the scope of this constitutional review is strictly limited to the specific questions of law raised by the Court of Turin. While the outcome of this case will be significant, it will not resolve all legal issues, whether existing or arising from the new decree. In particular, two significant matters fall outside the scope of this specific judgement:

• The “Minor Issue” (Interpretation of Law 555/1912): This constitutional challenge will have no effect on the legal questions surrounding the interpretation of Articles 7 and 12 of Law no. 555 of 1912. Since this issue was not part of the referral ordinance from the Court of Turin, the Constitutional Court will not be ruling on it. It remains a separate legal matter to be addressed in different proceedings Indeed, an important ruling on this subject is expected to be issued soon by the Corte di Cassazione, our Supreme Court.
• The Reversal of the Burden of Proof: Another critical aspect untouched by this case is the new, heavier evidentiary burden placed upon applicants. The Tajani Decree shifted this responsibility, now legally requiring applicants to provide “negative proofs” — such as evidence of the non-existence of a renunciation or other disqualifying acts. This can often lead to a probatio diabolica, a legal term for an impossible proof that is incredibly difficult to obtain. While this is a significant hurdle, the Court of Turin’s challenge focused on the law’s retroactive nature and not on these procedural rules. Therefore, the constitutionality of the new burden of proof is not under review in this specific proceeding.

Question by joiseygurl: “I’m a bit confused about the burden of proof issue and the applicant being responsible for providing negative proof of the LIBRA’s non-existence of renunciation of Italian citizenship. Does a CONE issued by USCIS satisfy this requirement, or is something more now needed?”

Answer:

This is a very good question that deserves an in-depth article. I am currently writing it and will publish it on my blog, italyget.com, very soon.

What I can tell you now is that according to the latest exceptions in the pleadings of the State Attorney’s Office, the simple negative certificate of naturalisation would not be sufficient Here is the specific exception presented in one of their pleadings:

“It follows that it will be for the other party in the present case to allege and prove, inter alia, that all of the ascendants of the present appellants have never become naturalised citizens of a foreign state and have carried out tasks and taken up occupations that do not imply the loss of their nationality under Article 11 of the Civil Code 1865 and Article 8 of Law No 555/1912; and so they themselves file military conscription (rectius, matriculation) extracts and contributions*, or equivalent documents in the foreign State from which, showing what activities they have carried out in their life in the foreign State of their nationality, can be excluded they have taken on senior roles, or military functions such as to require the loss of Italian nationality, if still held*.”

Of course, it is a pending case, and we don’t yet know the judge’s opinion on the latest exception made by the Avvocatura.

Here are the laws referred to by the State Bar in its exception, translated with google translator

Art. 11 of 1865 civil code

Citizenship is lost

By a person who renounces it by declaration before the registrar of his domicile and transfers his residence to a foreign country;

By a person who has obtained citizenship in a foreign country;

By a person who, without government permission, has accepted employment from a foreign government or has entered the military service of a foreign power.

The wife and minor children of the person who has lost citizenship become foreigners, unless they have continued to hold their residence in the kingdom.

They may nevertheless regain nationality in the cases and manner expressed in the paragraph of Article 14, in the case of the wife, and in the two paragraphs of Article 6, in the case of the children.

Art. 8. of Law 555 1912

He who spontaneously acquires foreign nationality and establishes or has established his residence abroad; 2. he who, having acquired foreign nationality without his own will, declares that he renounces Italian nationality and establishes or has established his residence abroad. 3. a person who, having accepted employment with a foreign government or having entered the military service of a foreign power, persists therein notwithstanding an order from the Italian government to leave employment or service within a specified time. The loss of citizenship in the cases provided for in this Article shall not exempt a person from the obligations of military service, subject to the concessions granted by special laws.

Frequently Asked Questions (FAQ)

What is the ‘Tajani Decree’ at the center of the Italian citizenship constitutional challenge?
The ‘Tajani Decree,’ now Law 74/2025, is a controversial new law that retroactively revokes Italian citizenship from many individuals who acquired it by descent (jure sanguinis) at birth, under the old law It imposes new, stringent conditions and has been challenged for violating fundamental rights, leading to the current review by the Italian Constitutional Court.

Who is most affected by this new Italian citizenship law?
The law primarily affects individuals with Italian ancestry born abroad. It retroactively strips their Italian citizenship, which was a birthright under the previous law, creating significant legal uncertainty for countless descendants.

What happens if the Italian Constitutional Court declares the law unconstitutional?
If the Court finds the law unconstitutional, it will be annulled. This would likely restore the citizenship rights of those who were stripped of them, reaffirming the principle that jure sanguinis citizenship is a right acquired at birth that cannot be arbitrarily revoked retroactively.