1948 Rule – The Judicial Precedents
Equality of gender and right to transmit citizenship
The 1948 rule enables children born to an Italian mother prior to 1948 to claim Italian dual citizenship before the Civil Court in Rome.
Before that Italian citizenship could not be derived from an Italian mother. The law governing citizenship, enacted in 1912 (no. 555), allowed only Italian fathers to transfer citizenship to their children.
In 1983, the Italian Constitutional Court ruled that said provision of the law of 1912 was unconstitutional because of the unequal treatment of men and women. The Court said that the provision should be read as a child can acquire Italian citizenship from either an Italian father or an Italian mother. In the same year a new law passed (no. 123/983), stating in a specific provision the written principle that a child derives Italian citizenship equally from either parent. Therefore, the issue was resolved.
But what about the children born to an Italian mother prior to? The law was not retroactive, and this legal dilemma leads to the 1948 rule.
How the Government applies the 1948 Rule
For those born prior to 1983, the Ministry of the Interior requested a specific ruling from Italy’s highest legal-administrative consultative body, the Consiglio di Stato.
The Consiglio affirmed that the equality principle applies only to children born after January 1, 1948–this being the date the Italian Constitution was adopted.
For this reason Italian consulates and municipalities only accept applications for Italian citizenship of children born to an Italian mother after January 1, 1948.
How civil judges apply the 1948 Rule
Although most civil judges initially agreed with the ruling of the Consiglio di Stato, over time legal opinion began to shift and eventually, in 2009, the Italian Supreme Court of Cassation retroactively extended the equality principle of the decision to cover cases of citizenship transferal where the claimants in question were born to an Italian mother prior to 1948.
This does not mean, however, that all citizenship applications are now handled in the same fashion. As Italy has a civil law system, the 1948 rule is not considered case law and does not carry the weight of judicial precedent it would under a common law system. Instead, what it means is that cases of citizenship transferral from mothers to children born prior to 1948 must go directly to the Civil Court of Rome, where they are processed.
Italian consulates and municipalities, where cases of children born after 1948 are handled, are still duty bound to reject claimants born to Italian mothers before. Herein lies the essence of the 1948 rule: these claimants no longer are required to submit applications to consulates and municipalities, as they are sure to be rejected, and now take their cases directly to the Civil Court of Rome.
In conclusion, the so-called 1948 rule is comprised of three different decisions by the highest courts in Italy:
- The Italian Constitutional Court in 1983
- The Consiglio di Stato decision of 1983
- The Italian Supreme Court of Cassation decision of 2009
The essence of the 1948
The decision enables children born to an Italian mother prior to 1948 to expedite the process of claiming their Italian dual citizenship before the Civil Court of Rome. As a result of the ruling, claimants no longer are required to submit applications to consulates and municipalities, as they are sure to be rejected, and now take their cases directly to the Civil Court of Rome.