“Everyone has the right to a nationality”

Statelessness determination procedure in Italy: who bears the burden of proof?

6 May 2015 | Giulia Bittoni, University of Burgundy and University of Bologna

The Italian Court of Cassation has recently ruled on a case concerning the statelessness determination procedure (Court of Cassation No. 4262 of 3 March 2015).

The Court of Cassation reverses a judgment by the Court of Appeal of Rome which refused to recognise the status of stateless person in favor of H.O., a woman of Bosnian origin living in Italy since her birth.

In its ruling, the Court of Cassation compares stateless persons to a specific category of aliens: people enjoying international protection (1). For the Court, the similarities between these two categories have a direct implication on the burden of proof related to the applicant’s lack of nationality in statelessness determination procedure (2).

1) Stateless persons: a particular category of aliens

In this judgment, the Court of Cassation evokes the definition of stateless persons contained in Article 1, 1954 UN Convention relating to the Status of Stateless Persons. The Court also refers to the treatment of stateless persons resulting from this Convention.

Furthermore, the Court recalls that aliens in the Italian territory enjoy the “rights of human persons”. These rights are not conditional on the possession of the Italian nationality. Then, the Court makes clear that, in the Italian legal system, a stateless person shall be treated as an alien in regards to the rights of the human person. More specifically, the Court compares the situation of stateless persons to that of a particular category of aliens: the beneficiaries of international protection. The former category, as well as the latter one, should enjoy human and fundamental rights, particularly, the right to live freely and with dignity.

To this end, the Court confirms that stateless persons can directly apply for the recognition of their stateless status before a judge in civil proceedings using, instead of the administrative procedure, the less complex judicial one. Indeed, in Italy two statelessness determination procedures exist (see, in particular, UN High Commissioner for Refugees (UNHCR), UNHCR Recommendations on the Relevant Aspects of the Protection of Statelessness Persons in Italy, October 2014).

According to the administrative procedure (Article 17, Presidential Decree No. 572/93), the applicant for the status of statelessness has to file an application to the Ministry of Interior. He/She has to attach various documents to the application: a birth certificate, documentation relating to residence in Italy and any other suitable documents demonstrating his/her stateless status. Therefore, only persons residing regularly in Italy can apply for the recognition of their stateless status under this procedure.

Although the judicial procedure is more expensive because of the compulsory assistance of an attorney, it is generally accessible. In the absence of a specific regulation concerning the judicial statelessness determination procedure, there are no provisions as to which documents the applicant ought to produce before a court in order to obtain the recognition of his/her stateless status.

Thus, to what extent must the applicant prove his/her lack of nationality to obtain the recognition of his/her statelessness? In this regard, the Italian Court of Cassation considers that the similarities between stateless persons and beneficiaries of international protection have consequences on the burden of proof.

2) The burden of proof in statelessness determination procedures

The Italian regulation on International Protection, adopted in application of the EU legislation, provides a reduced burden of proof for the applicant (Legislative Decree No. 251/2007 and Legislative Decree No. 25/2008). The Court of Cassation, even in the absence of any specific regulation, considers that, also in statelessness determination procedures, the burden of proof for the applicant has to be reduced. In fact, stateless individuals have access to and can enforce the same rights as an alien who applies for a residence permit to exercise the right to live freely and with dignity.

A reduced burden of proof for the applicant in a statelessness determination procedure implies that the judge has the power and duty to search for relevant evidence necessary to obtain the stateless status and fill gaps or complement the evidence presented by the applicant.

The Court clarifies that the judge has to ask the competent public authorities for information and documents concerning the nationality status of the applicant and for the national regulations and practice on nationality. On this point, the Court of Cassation states that the judge should conduct investigations not only toward Italian authorities but also toward authorities of the applicant’s State of origin and other States with which the applicant has relevant links.

Moreover, the Court emphasizes that the judges should not limit themselves to a formal examination of the evidence but should also take into proper account every different concrete situation in its entirety (see, to that effect, the judgments of the Court of Cassation No. 23338 of 9 December 2008 and No. 25212 of 8 November 2013).

In the present case, the Court of Cassation holds that the Court of Appeal of Rome did not take into account the overall situation of H.O. and did not use its investigative power and duty to dissipate any doubts on the evidence of the statelessness of the applicant. In point of fact, the Court of Appeal refused to recognise H.O. as a stateless person because it regarded the applicant as not having furnished evidence sufficient to comply with the burden of proof concerning her lack of nationality. As a result of this, the Court of Appeal did not verify whether if H.O. could, in practice, obtain the nationality of Bosnia and Herzegovina (BiH).

The Court of Cassation, on the other hand, examines the Law on Citizenship of Bosnia and Herzegovina and notes that H.O. does not meet the requirements to apply for the nationality of this country. The Court points out that Article 6 of this Law opens up to the possibility of acquiring the country’s citizenship for children born abroad with at least one parent being a citizen of BiH. However, the Court stresses that this provision applies only to children born after the entry into force of the Constitution of BiH (1995). The Court notes that H.O. was born in 1986.

The Court of Cassation also expressly excludes the possibility that H.O. could have acquired the citizenship of BiH in any one of the other ways mentioned in the Law (for example, by adoption or by naturalisation) in light of the fact that she had never left Italy. Finally, the Court of Cassation infers from the judgment of the Court of Appeal that H.O. does not possess the Italian nationality either. Therefore, the Court declares the status of stateless person with regards to H.O.

This judgment has the merit of giving a major role to the Italian judges in the search of evidence in statelessness determination procedures and to ease the burden of proof of the applicants. This is a significant step toward a better protection of stateless persons in Italy and, as a result of this, also in Europe.

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