Sentenza n. 4262/2015

Parties (including notable third parties)

Ms. Olga Halilovic (Appellant); Italian Ministry of Interior (Respondent)

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Summary of Facts

The Appellant, a person of Bosnia Herzegovinian descent, lived in Italy since birth. The Appellant did not hold Bosnia Herzegovinian citizenship. In accordance with Article 1 of the 1954 Convention relating to the Status of Stateless Persons, the Appellant was recognised as stateless by the Tribunal of first instance in Rome.

Subsequently, the Court of Appeal of Rome overturned the Tribunal’s recognition of statelessness, holding that the Appellant had not met the burden of proof to show that she could not acquire Bosnian Herzegovinian citizenship through her parents. Futhermore, the Court of Appeal held that the Appellant’s lack of registration at the Civil Registry of Mostar (Bosnia and Herzegovina) was not sufficient to prove that she was stateless. The Appellant then lodged an appeal before the Supreme Court of Cassation against the Court of Appeal’s decision.

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Legal Arguments

Legal arguments by the Appellant

The Appellant argued that the Court of Appeal misapplied Article 115 of the Code of Civil Procedure and Article 1 of the 1954 Convention. She claimed that, in cases concerning recognition of statelessness status, the burden of proof on the applicant should be less stringent, and judges are permitted to address gaps in evidence ex officio (i.e. on their own initiative). This principle, which the Appellant argues is supported by Italian case law, reflects the fundamental rights involved. The Appellant also noted that the Ministry of the Interior had not disputed her parents’ Bosnian origin, only the absence of proof explaining why she could not acquire Bosnian citizenship.

As a second ground, the Appellant alleged a procedural defect under Article 360(5) of the Code of Civil Procedure, specifically that the Court of Appeal had failed to consider decisive facts during the proceedings. These facts are as follows: (a) that Bosnian law granting citizenship by descent only applies to those born after the 1995 Constitution, whereas the Appellant was born in 1986; and (b) that the Appellant had never entered Bosnia and Herzegovina, either before or after independence, meaning she had no opportunity to apply for citizenship. The Appellant submits that the Court of Appeal overlooked these circumstances and simply concluded that she had not met the evidentiary burden.

Legal arguments by the Respondent

The Ministry of Interior did not provide new arguments during these appeal proceedings. In the first instance proceedings, the Ministry highlighted that the applicant had not evidenced the reasons why she could not have applied for Bosnian citizenship.

Outcome

The Supreme Court began by reaffirming that statelessness determination must go beyond formal nationality requirements and consider an applicant’s overall situation. It also recalled the 1954 Convention and Italian legislative provisions (Article 1 of the Consolidated Immigration Act; Legislative Decrees 25/2008 and 251/2007), which guarantee stateless persons the same fundamental rights as foreigners and direct access to ordinary courts, underscoring their constitutional importance.

The Court held that the burden of proof for applicants seeking recognition of stateless status must be considered mitigated. Judges have a duty to exercise ex officio investigative powers to address evidentiary gaps, including requesting information from Italian authorities, the country of origin, or any State with a relevant connection. Although this principle is not codified as in asylum law, it is inferred from a constitutionally oriented interpretation of the legal framework protecting fundamental rights, particularly Article 2 of the Italian Constitution of Article 3 of the European Convention on Human Rights and is consistent with the approach applied to beneficiaries of international protection.

Reiterating prior rulings (Cass. 23338/2008; Cass. 25212/2013), the Court stressed that statelessness determination requires substantive evaluation of all circumstances, not a formalistic review of documents. Here, the Ministry of the Interior did not dispute the applicant’s Bosnian parentage at first instance; on appeal, objections focused only on the lack of proof regarding nationality. In the view of the Supreme Court, the Court of Appeal failed to apply the principle of iura novit curia and did not verify whether applicable Bosnian law allowed acquisition of citizenship, nor did it consider Italian nationality requirements when assessing statelessness.

The Supreme Court noted that under Bosnian law, citizenship by descent applies only to those born abroad after the 1995 Constitution, whereas the Appellant was born in 1986. Other routes to citizenship (birth, adoption, naturalisation, international agreements) were excluded, as the Appellant had never left Italy. The Supreme Court held that these facts were decisive and should have been considered by the lower court.

Lastly, the Supreme Court found that the Court of Appeal improperly halted its inquiry due to perceived evidentiary gaps, failed to use its investigative powers, and ignored the mitigated burden of proof principle. It also violated procedural rules by revisiting issues not contested on appeal, contrary to established jurisprudence.

Accordingly, the Supreme Court concluded that the conditions for recognising statelessness were met under Italian and Bosnian law. The contested judgment was overturned and the Appellant was recognised as stateless.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	1954 Convention relating to the Status of Stateless Persons & Legislation. n. no. 306/1962 (ratifying the 1954 Convention)	Art 1
Domestic	Italian Constitution	Art 2
Domestic	Legislative Decree n. 286/1998 Testo Unico delle disposizioni concernenti la disciplina dell'immigrazione e norme sulla condizione dello straniero (Immigration Act and Norms Regulating the Condition of Foreigners)	Art 1 d.
Domestic	Legislative Decree n. 251/2007 Attuazione della direttiva 2004/83/CE (Incorporation of 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwis	Art 2.d.
Domestic	Legislative Decree. n.25/2008 Attuazione della direttiva 2005/85/CE (2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status	Art 2.d.
Regional	European Convention on Human Rights	Art. 3

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Not available.