Diritti di accesso e profili rimediali. Spunti di riflessione per l’introduzione di una ipotesi di giurisdizione condizionata

This paper starts from the consideration that - despite the recent enhancement of the principle of transparency that has affected the Italian legal system, as well as the (apparently) incontrovertible limits imposed on the exercise of the several rights of access (documental, civic and generalized) - still today there are numerous cases in which the citizen is illegitimately denied or deferred his right of access to documents and information held by the public administration. The relevance of the underlying interests (pursuant to article 29, paragraph 2-bis of Law 241/1990, the right of access pertains to the essential levels of benefits and services referred to the article 117, paragraph 2, letter m) of the Italian Constitution), has therefore long led the Italian legislator to introduce a special jurisdictional proceeding, inspired by the criterions of simplicity and speed. Starting from these premises, the paper - after a brief examination of the main characteristics of the special proceeding aimed at protecting the rights of access and of some of its limits in terms of effectiveness – focuses at first, critically, on the choice of the Italian legislator to extend tout court the aforementioned special proceeding also to the rights of access more recently introduced (civic and generalized), despite the deep differences (in terms of assumptions and purposes) existing between these new rights and the right of access ex artt. 22 and ss., L.n. 241/1990. The critical issues that emerge from the point of view of jurisdictional protection lead, then, to the examination of the degree of effectiveness that can be found in the models of alternative dispute resolution remedies to protect rights of access, included in the Italian legal system. With this in mind, the contribution aims to bring out the advantages, for the citizen injured in his rights of access to administrative documents, in using non-jurisdictional remedies, in terms of effectiveness, cost and speed. In the light of the results, the author concludes illustrating, de iure condendo, the benefits deriving from the possible introduction of a situation of conditional jurisdiction (to a previous experiment of an administrative remedy) in the particular context of the protection of rights of access