Notwithstanding the wide discretion granted to the Ministry in this matter, an adequate investigative depth directed at ascertaining whether and what developments there have been of police precedents consisting of complaints/lawsuits and placed as the basis for the negative assessment, an investigative depth that must then be logically followed by a careful evaluation of the facts thus fully reconstructed, with an ample motivation that gives account of the reasons why those facts in the abstract criminally relevant, even if not followed by significant developments, let alone by convictions, can be considered in any case hostile to the granting of citizenship, as such as to cause the loss of that requirement of 'status illesae dignitatis' moral and civil required in the applicant.
(automatic machine translation)
Regional Administrative Court for Lazio
(Sezione Quinta Stralcio) has pronounced this
JUDGMENT
No. 18643/24 of October 25, 2024
on the appeal number 9149 of 2020, brought by **, represented and defended by Nicola Canestrini, lawyer, with digital domicile at the pec as in the Registers of Justice; against Ministry of the Interior, in the person of the Minister in charge, represented and defended by the Attorney General's Office, domiciled ex lege in Rome, via dei Portoghesi, 12;
for the annulment of the decree of 8.4.2020, notified to the applicant on 25.7.2020, by which the Minister of the Interior rejected the application of 26.11.2015, aimed at obtaining the recognition of Italian citizenship pursuant to Article 9, paragraph 1, letter f), of Law No. 91 of February 5, 1992.
Having seen the appeal and its attachments;
Having seen the affidavit of the Ministry of the Interior;
Having seen all the acts of the case;
Having regard to Article 87, Paragraph 4-bis, Code of Administrative Procedure;
Rapporteur at the extraordinary hearing for the disposal of the backlog on October 11, 2024, Dr. PT and heard for the parties counsel as specified in the minutes;
Held and considered in fact and law as follows.
FACT and LAW
1. With an appeal notified on 12.10.2020 (dep. on 9.11.2020) *** challenged the measure indicated in the epigraph, by which the Ministry of the Interior rejected his application (submitted on 26.11.2015) to obtain citizenship pursuant to Article 9, paragraph 1, letter f) of Law No. 91 of February 5, 1992.
In support of the appeal, the party articulated the following grounds: (i) “on the violation of law - excess of power - art. 10 of l. 121/1981,” in that the Administration allegedly attributed diriment importance to two police reports, moreover without the acquisition of the original sources; (ii) “on the violation of law - excess of power due to lack of motivation - articles 3, 21 octies l. 241 of 1990, 9 paragraph 1 lett. 'f' l. n. 91 of 1992”, since the Ministry would not have made an exhaustive investigation on the position of the applicant nor would it have provided an adequate motivation on the relevance of the reports of the judicial police (one of which turned out to be unfounded as per the judgment of the Court of Genoa of 16.1.2020, no. 163), also with respect to the applicant's concrete life path in Italy.
2. The Ministry joined in resistance with a writ of style and then filed the acts and documents on the basis of which the contested order was issued.
3. At the extraordinary hearing on 11.10.2024 the case was retained for decision.
4. The appeal is well-founded for the following reasons.
4.1. The Administration decided to reject the petition filed by today's appellant on the basis of two judicial police reports: the first, dating back to 2003, for the crime hypothesis under Article 495 of the Criminal Code. (“False attestation or declaration to a public official about one's identity or personal qualities of oneself or others”); the second, dating back to 2016, for the crime hypothesis set forth in Articles 474 of the Criminal Code (“Introduction into the State and trade of products with false signs”) and 648 of the Criminal Code (“Receiving”). The Ministry therefore considered that such “criminal prejudices” were “indicative of the applicant's unreliability and incomplete integration into the national community, which can also be inferred from his compliance with the rules of criminal law and civil coexistence.”
4.2. However, in the face of the existence of mere police reports, case law has had occasion to clarify that (Cons. Stato, sec. III, 11.7.2023, no. 6791 and precedents referred to therein):
- “when the denial is based exclusively on facts dating back in time that have not been followed by any development in criminal proceedings, it is necessary that any measure of denial be supported by a greater investigative depth and a broader motivational background, it not appearing sufficient in such cases to merely recall alerts, reports and complaints against the applicant, especially if not recent and dating back in time, without adequate verification as to the current status of such alerts, reports and reports.”
- in particular, the denial was deemed unlawful if “it is based on the finding that there has been a complaint to the judicial authority, without ascertaining what further developments have taken place in the relevant proceedings.”
- more generally, the denial measure must be judged illegitimate when “the complaints have not been made the subject of an independent appreciation, not being in any way circumstantiated,” or “the ministerial measure - due to the insufficiency of the investigative data on which it is based - does not bear an in-depth appreciation on the facts underlying the complaints and, therefore, on the real disvalue of the conduct with respect to the fundamental principles of social coexistence and the anticipated protection of public safety and security,” resolving itself into an uncritical survey of the gradients ”in their aseptic historicity without any autonomous and effective critical scrutiny, that is, as data in itself suitable to accredit a judgment of disvalue for the purposes here in question.”
- in other words, without prejudice to the wide discretion recognized to the Ministry in this matter, there is a need for an “adequate preliminary investigation aimed at ascertaining whether and what developments there have been in the complaints referred to and placed as the basis for the negative assessment, a preliminary investigation that must then be logically followed by a careful evaluation of the facts thus fully reconstructed , with ample reasoning that gives account of the reasons why those facts in the abstract that are criminally relevant, even if not followed by significant developments, let alone by convictions, can be considered in any case hostile to the granting of citizenship, inasmuch as they are such as to cause the requisite moral and civil 'status illesae dignitatis' required in the applicant to fail.”
4.3. In the case at hand, the contested measure clearly departs from the above criteria of legitimacy. In fact, the Administration did not carry out any in-depth investigation with respect to the mere detection of the presence in the database of the two police reports; news that was uncritically transposed into the contested act by way of inescapable social stigma. Nor was any contextualization of the reports provided; the motivational process resolves and dissolves, indeed, in the mere enunciation of the crime titles hypothesized by the operatives, without any knowledge of what happened, of further developments in criminal proceedings and therefore of the current disvalue of those facts in the context of the overall life path followed by the petitioner in Italy. And in fact, as evidenced in the record (all. 5 rec.), the applicant was acquitted with respect to the most recent crime report - that of 2016 relating to the offenses under articles 474 and 648 of the Criminal Code - with a sentence of January 31, 2020, thus prior to the date of adoption of the act appealed. While nothing is known with regard to the report of 2003, which is even outside the so-called observation period, i.e., in the decade prior to the time of the application for citizenship, which is relevant for the assessment of the acquisition of the requirements for citizenship, pursuant to Article 9 Law No. 91 of 1992, including those of irreproachable conduct.
5. In conclusion, the contested measure must be annulled for lack of preliminary investigation and reasoning, subject to the re-exercise of the function by the Intimate Administration.
6. The novelty of the issues dealt with (having regard to the time of the adoption of the contested act and its challenge in court) justifies full compensation of the costs of the litigation between the parties.
P.Q.M.
The Regional Administrative Court of Lazio (Fifth Section), definitively ruling, upholds the appeal in epigraph and, as a result, annuls the contested measure. Costs compensated. Orders that this judgment be executed by the administrative authority. Considering that the requirements of Legislative Decree No. 196 of June 30, 2003, and Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016, for the protection of the rights or dignity of the interested party are met, directs the Secretariat to proceed with the obscuration of the personal details as well as any other data likely to identify the appellant. Thus decided in Rome in the council chamber on October 11, 2024 - publicized October 25, 2024