Analysis of Constitutional Court Sentence No. 63/2026: the open questions and the evident contradictions

Following my previous post on first impressions of Constitutional Court Ruling No. 63/2026, published on April 30, 2026, with an analysis of the aforementioned ruling, highlighting the outstanding issues and contradictions the drafter has encountered.

I reiterate that the provision has a distinctly political slant as it recognizes (or rather legitimizes) the need for a so-called effective link with Italy for the purposes of recognition of one's citizenship status.

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The critical issues

After outlining the concepts of territory, people, and sovereignty, the Constitutional Court affirmed that the Constitution granted citizens the so-called rights of democratic participation, which include participation in the determination of national politics. The Court went on to state that allowing individuals with no effective connection to the Italian state community to participate in the political decisions that apply to that community would mean imposing such political decisions "from the outside" on those who are actually present on "Italian territory" and actively contribute to the country's economic and social development.

Based on these assumptions, the Court deemed the previous legislation anachronistic in favor of the new provisions established by Legislative Decree 36/2025, converted into Law 74/2025, and in particular Article 3 bis, which provides for a specific retroactivity that excludes ex tunc the legal effects of previous provisions. Therefore, Article 3 bis attributes different legal consequences (original preclusion to acquiring citizenship) to previous facts (birth before the decree) than those that would have occurred in the absence of retroactivity.

The Court goes on to state that Article 3 bis does not entail a revocation of citizenship since the revocation affects only those who have already acquired citizenship status and not those who must be recognized.

Whatever the Constitutional Court may say, it is clear that we are faced with a specific case of implicit revocation of citizenship and that the original preclusion constitutes a mere legal fiction. Indeed, if it is true, as it is, that citizenship status is acquired at birth through filiation, it is equally true that considering someone born abroad as never having acquired Italian citizenship is equivalent to structuring a legal fiction with which to conceal an implicit revocation.

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The contradictions

1) The Judge, first of all, in recalling the United Sections of the Court of Cassation, recognizes that "the status civitatis based on the bond of filiation has a permanent character, is imprescriptible and can be enforced at any time on the basis of the simple proof of the acquisitive fact integrated by the birth of an Italian citizen" , but then goes on to say that:

a) Article 3 bis provides for a hypothesis of original preclusion from acquiring citizenship and not a revocation;

b) the status civitatis of a large number of people is uncertain as it is not officially recognised;

c) the principle of entrustment to this vast group of people is weakened by the fact that while it is true that the status of Italian citizens is acquired at birth, there is no legal certainty regarding the status of citizens.

Therefore, on the one hand, the Judge affirms that citizenship status is acquired at birth based on filiation and that the right to citizenship is an imprescriptible right. On the other hand, however, he believes that those born abroad are certainly not Italian citizens and that their principle of trust—on the basis of imprescriptibility—is weakened by the fact that there is no legal certainty regarding their status, confusing (or rather, converting) the recognition of the right with its establishment by the judge or the Public Administration.

One of two things: either you're Italian by birth or you're not. There's no third option.

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The open questions

1) The Constitutional Court addressed only the issue of the retroactivity of Article 3 bis, as the Turin Court did not challenge the new provisions on a substantive level;

2) The Constitutional Court has not examined the issue of differentiating between those who initiated the procedure after receiving an appointment and those who, despite having taken action, were not notified of an appointment date. In the author's opinion, this differentiation constitutes a clear violation of Article 3 of the Constitution, as it regulates identical situations (taking action before March 27) differently.

3) The Constitutional Court did not examine the question of the violation of Article 15, paragraph 2, of the Universal Declaration of Human Rights because the Turin Court did not specify that it was a violation of a customary international norm and, as such, binding on all subjects of international law.

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Conclusions

The Constitutional Court's ruling, far from being definitive and resolving the issues surrounding the recognition of Italian citizenship, leaves many questions unanswered and ignites legal debate, especially in light of the upcoming ruling by the Joint Sections of the Court of Cassation, expected in the coming months.