Many descendants of Italians who emigrated to Brazil and wish to claim recognition of Italian citizenship still grapple with what is known as the "Great Naturalization of 1889" – the imposition of Brazilian citizenship by authorities on all foreign citizens present in the country.
Faced with a highly unusual event, Italian law considers the transmission of citizenship precluded only in cases where Italian ancestors expressed their intention to relinquish Italian citizenship.
How does one prove this intent in cases of 'tacit consent,' where there is no document demonstrating that the Italian ancestor explicitly refused Brazilian citizenship in order to retain their Italian citizenship?
The response to this question has divided Italian judges whose task is to rule on the claims of Italian citizenship by descent through Italian immigrants affected by the Great Naturalization.
The Great Naturalization of 1889
In 1889, the Brazilian provisional government issued Decree No. 58, establishing an automatic renunciation mechanism for all foreign citizens residing in Brazil as of November 15, 1889.
From then on, the principle of jus soli became the general rule for citizenship in the Brazilian legal system.
Between 1889 and 1891, the Brazilian government also enacted other measures of forced and mass naturalization affecting all foreigners living on Brazilian territory.
Emigrants present in Brazil during those years, to avoid becoming Brazilian citizens and losing their previous citizenship, had to submit a declaration renouncing the acquisition of the new citizenship.
Mass naturalization alone was not enough to cause the loss of Italian citizenship for immigrants in Brazil. However, at that time, Italy operated under the 1865 civil code, explicitly stating that acquiring a new citizenship was grounds for losing Italian citizenship, leaving room for interpretation where the individual's will mattered little.
More than tacit consent, it was ignorance of the laws and measures in place to assert the desire to remain Italian.
Cases where voluntary renunciation was expressed are those where the bloodline can truly be considered interrupted.
As early as October 5, 1907, the Court of Cassation in Naples ruled, referring to the Brazilian situation, that Italian citizenship could only be lost through a voluntary and explicit renunciation, and not through the actions of the foreign state's government, avoiding reacting against such attribution.
Conclusive acts expressing the individual's intent to become a Brazilian citizen would have included registering in the new country's electoral rolls or performing military service in the new country.
However, if voter registration is taken as a criterion, it is necessary to determine whether that registration was voluntary or automatic.
The clear distinction between 'tacit consent' and 'will'
Acquiring citizenship by descent ('ius sanguinis') can only occur if there is no interruption in the line of descent.
Foreigners present in Brazil at the time of the Great Naturalization, did not automatically become citizens simply by not submitting a declaration renouncing naturalization. The automatism is illegitimate; the loss of Italian status for those obtaining new citizenship concerned only the voluntariness of acquiring Brazilian citizenship.
In other words, to acquire Brazilian citizenship, passive behavior ('silent consent') was not sufficient, as they retained their foreigner status unless they undertook additional active behavior, an action on which the actual and concrete acquisition of Brazilian citizenship depended.
The Court of Cassation opens the doors to Italo-Brazilians
On August 24, 2022, Judgment No. 354/2022 of the Court of Cassation in Joint Sections was published, addressing an appeal from a Brazilian citizen with Italian origins.
This individual's request for Italian citizenship by descent was rejected, as a descendant of an Italian involved in the Great Naturalization of 1889, according to the decision of the Court of Appeal of Rome (Judgment 5172/2021).
The appeal to the Joint Sections was assigned due to the "particular relevance of the underlying legal issue."
In response to the Court of Appeal of Rome, the Supreme Court expressly ruled that the Great Naturalization alone could not have automatically resulted in the loss of Italian citizenship and the inability to transmit it to descendants.
Relying also on the Italian law in force at that time, an Italian citizen moving abroad would have had to willingly renounce their citizenship to lose it, not having it imposed upon them.
Those seeking Italian citizenship must demonstrate being a descendant of an Italian citizens and submit a "letter of no evidence of naturalization" (issued in the absence of the ancestor's name in the register of voluntary naturalizations). Since the loss of citizenship cannot be presumed, the burden or proving it falls on the opposing party to demonstrate that the ancestor voluntarily renounced their Italian citizenship or that there was an interruptive event in the transmission line.
Additionally, the next-in-line, upon reaching the age of majority, had not claimed Italian citizenship, as they could have done, by renouncing Brazilian citizenship. Silence and stabilization of life abroad are insufficient because "silence does not express any consent."
The Court of Cassation came to a different perspective in comparison to the Roman Court, analyzing not only the effects, but also the historical-legal context of the Great Naturalization.
Moreover, it noted that the Italian government of the time, led by Francesco Crispi, officially protested against the Great Naturalization in a dispatch dated December 1889, doubting that emigrants in Brazil could retain Italian citizenship.
Another aspect that was not addressed during the time in which this judgment was contested is that, according to the Brazilian law of that time, to be considered a citizen with full rights, an additional step had to be taken (any one of the following):
- Request to be registered in the voters' registers.
- Request an electoral card.
- Employment in a public position.
- Sign a specific declaration.
- Undertake public functions imposing obligations of hierarchy and loyalty to the Brazilian state (not just a simple job).
None of these options was practically conceivable at that time due to the high illiteracy rates, denying the possibility for participation in Brazilian public life and true acceptance as a citizen in the new country, with all rights involved.
The institution of the loss of Italian citizenship, governed by the Civil Code of 1865 and Law 555 of 1912, concerning the Great Naturalization in Brazil, must therefore be understood as applicable only to the extent that the Italian citizen emigrant voluntarily renounced Italian citizenship in favor of Brazilian citizenship.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
