TP v Minister of Home Affairs
actively engaged in the search for evidence. 32 Usually, nationals of a state can
easily provide proof of their status through certificates issued by the competent
authorities. However, pursuant to art 2697 of the Italian Civil Code, 33 a stateless
person must provide proof demonstrating that they lack citizenship of the state
with which they have, or had, significant connections (‘whoever wants to assert a
right in court must prove the facts that constitute its foundation’). In the case of
evidentiary gaps, the principle of attenuation applies to the burden of proof,
creating an obligation for the judge to collaborate with the applicant. 34 Other case
law clarifies that the judge could investigate beyond the evidence provided by the
parties, as nationality and statelessness are questions of public interest. 35
Following this trend, some courts, including the Tribunal of Rome in this case,
have taken steps to find documentation or request information from the competent
administrative authorities. 36 The Supreme Court of Cassation also strengthened
the procedural guarantees for stateless persons by ruling that the judge has an
obligation to acquire official information. 37
CONCLUSION
TP v The Minister of Home Affairs constitutes an important precedent in the
recognition of statelessness for individuals of Tibetan origin, who are born and/or
residing in India. The Tribunal of Rome correctly engaged in an investigation of
the nationality legislation of India, where TP was born and resided, and Italy,
where TP currently lives.
Subsequently, with ANH v Ministero dell’Interno, the Supreme Court of
Cassation determined that, where the state refuses to confer individual protections
or prerogatives due to nationals, those nationals have the burden of challenging
this decision, including by judicial means. 38 Very often, however, it is difficult, if
not impossible, for the person concerned to do so. Clandestinely leaving a state,
without adequate documentation, can constitute a crime and their return to the state
of origin could place them at risk. The same risk could exist if a person were to go
to the embassy of their country. It is also difficult, time-consuming and expensive
for a stateless person to take legal action against their state of origin from Italy.
The burden is not one that can be met by the applicant; they are unable to properly
respond to the material conduct of the state. It is a probatio diabolica against
which the judiciary has repeatedly expressed its opposition in the context of
ascertaining the status of stateless persons.
32
33
34
35
36
37
38
ibid 3.
Royal Decree No 262 of 1942 ‘Civil Code’, art 2697 (Italy).
Ministero dell’Interno v AM (First Civil Section, Sentence No 16114, 14 June 2019) (Supreme
Court of Cassation) (Italy).
Decreto 20 Marzo 1954 (1955) Giurisprudenza 117 (Tribunal of Taranto) (Italy).
Decreto 5 Marzo 2003 (n 19), which requested the Italian Ministry of Justice find Cuban
legislation on nationality.
Sentence No 14918 (n 19).
ANH v Ministero dell’Interno (First Civil Section, Sentence No 4257, 4 March 2016)
(Supreme Court of Cassation) (Italy).
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