Judicial analysis of decree-law 36/2025: Constitutional concerns and legal challenges

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On May 15, 2025, the Italian Senate approved Decree-Law 36/2025, a legislative measure that restricts the recognition of Italian citizenship by descent (jus sanguinis). The measure has sparked intense debate, with critics raising concerns about its constitutional validity, retroactive effects, and potential discrimination.

In this analysis, we examine the judicial critiques surrounding the decree, focusing on violations of constitutional principles, the impact on Italian descendants worldwide, and the likelihood of legal challenges before the Italian Constitutional Court and the European Court of Human Rights (ECHR).

Legal criticisms and constitutional violations

Violation of citizenship as a fundamental right

Under Italian jurisprudence, jus sanguinis citizenship is regarded as a fundamental right derived from an individual’s birth status rather than a privilege granted by the state. The Court of Cassation’s rulings (Nos. 4466/2009 and 4467/2009) explicitly state that citizenship cannot be restricted by arbitrary administrative procedures.

However, the new decree conditions eligibility on factors outside an applicant’s control, including their ancestors’ residency history.

Many applicants have also faced systemic issues due to inefficiencies in Italy’s Prenot@mi online appointment system, which has prevented thousands from submitting applications in time.

By imposing new bureaucratic hurdles, critics argue the decree violates the constitutional principle of legal certainty, rendering citizenship recognition inaccessible for many eligible descendants.

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Violations of equality, proportionality, and European citizenship rights

Decree-Law No. 36/2025 raises constitutional concerns, violating Article 3 of the Italian Constitution by creating unjustified disparities between individuals with Italian-born grandparents versus great-grandparents, despite both having equal ties to Italy.

The principle of effectiveness, upheld by the European Court of Justice (ECJ) and Italy’s Supreme Court, is traditionally used to prevent the revocation of citizenship, rather than restrict its acquisition. However, this decree imposes arbitrary barriers, requiring an ancestor to have resided in Italy for two years before their child’s birth to pass down citizenship.

This flawed framework rewards individuals whose grandparent was born in Italy but never lived there, while penalizing those with one additional generation of ancestry, despite their strong connection to Italy.

By shifting the burden of proof away from the applicant and onto an ancestor’s past residency, the law violates principles of proportionality and effectiveness, contradicting Articles 11 and 117 of the Italian Constitution, as well as Article 20 TFEU and Article 7 of the EU Charter of Fundamental Rights. Ultimately, it fragments family ties and disregards established judicial protections for citizenship claims (Italy Law Firms, 2025).

Violation of the principle of Non-Retroactivity

Italian citizenship by descent (jus sanguinis) is a declarative right acquired at birth, not a privilege granted by the state. Decree-Law 36/2025 imposes a strict deadline for citizenship applications, retroactively revoking eligibility for those who fail to apply by March 27, 2025, despite meeting prior legal requirements.

Critics argue this violates Article 25 of the Italian Constitution, which prohibits retroactive restrictions on personal rights, and contradicts judicial precedent from Italy’s Constitutional Court and the European Court of Human Rights (Pinelli Schifani Law Firm, 2025).

The Italian Constitutional Court has consistently ruled that any retroactive limitation of fundamental rights must be justified through proportionality and legal reasonability (Judgment No. 4/2024).

Furthermore, the European Court of Human Rights (ECHR) has established that retroactive laws depriving individuals of nationality rights without personal wrongdoing violate Articles 6 and 8 of the European Convention on Human Rights (Case: Genovese v. Malta, 2011).

Potential legal remedies

Affected individuals will have limited legal remedies, primarily through judicial challenges. One option is an incidental appeal to the Italian Constitutional Court, where a judge may refer the case for constitutional review.

Those unable to obtain relief domestically may escalate their claims to the European Court of Human Rights, citing violations of private and family life (Article 8 ECHR) and non-discrimination (Article 14 ECHR).

Given the widespread impact of the decree, potentially affecting hundreds of thousands of people, both individual lawsuits and class actions may also serve as avenues to challenge the law.

Implications for citizenship applicants

Now that Decree-Law 36/2025 has been officially approved by Parliament, the next step will be judicial review by Italy’s higher courts, which are scheduled to examine citizenship laws on June 24, 2025.

This review will determine the constitutionality of the new regulations, particularly in light of concerns regarding legal security and potential violations of fundamental rights.

The restrictive measures risk alienating millions of Italian descendants, severing historical ties between Italy and its diaspora. Applicants facing bureaucratic delays should prioritize completing their citizenship requests immediately before new requirements take effect. Meanwhile, legal efforts to challenge the decree may offer future opportunities for judicial reversals or legislative amendments.

For Italian descendants, this moment requires vigilance, preparation, and engagement with legal advocacy groups working to protect their rights. Continued pressure on lawmakers, combined with international legal appeals, could potentially influence legislative revisions in the coming years.

References:

Italy Law Firms. (2025). Ius Sanguinis 2025 Reform: Italy’s Constitutionality. Retrieved from https://italylawfirms.com/en/ius-sanguinis-2025-reform-italy-constitutionality

Pinelli Schifani Law Firm. (2025). Decreto 36/2025 e Lei de Conversão: Análise, Críticas e Perspectivas de Inconstitucionalidade. Retrieved from https://lnx.pinellischifani.com/pt/2025/05/16/decreto-36-2025-e-lei-de-conversao-analise-criticas-e-perspectivas-de-inconstitucionalidade

May 30, 2025
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