Patologie dell’atto amministrativo digitale: profili processuali e prospettive

This research deals with computerised administrative procedures. Particular attention is given to how specific issues such as the adoption of computerized administrative documents and/or, more generally, the adoption of Information and Communication Technologies (ICT) for administrative activities may affect the validity of computerized administrative documents by the Administration Judge. This study briefly examines the complex and multifaceted legal and regulatory framework concerning administrative procedures and digital administration, Law no. 241/1990 as amended in the following years, the Code of Digital Administration (Law Decree no. 82/2005) and the recently introduced legal provisions which have considerably encouraged the long-awaited creation of a “Digital Italy” (Law Decree no. 5/2012; Law Decree no. 83/2012 and Law Decree no. 179/2012). This paper analyzes the fundamental models for the implementation of administrative actions (ex parte and ex officio applications) and the specific features of their different steps (start of procedure, taking of evidence, participation of an individual to the electronic procedure, decision-making stage) in light of the use of information technologies. Particular attention is paid to the decision-making stage of an electronic proceeding, also to the purpose of investigating defects and jurisdictional validity of an electronic proceeding. In this respect the two methods for using the ICT were briefly examined, the one whereby the ICT role concerns the many operations and formalities aimed at the adoption of the final document, subject to the officer’s will to accept the administrative decision, and the one whereby the final document is adopted by means of a software program. The limits of the possibility to elaborate the content of administrative documents are also examined. Illegality aspects of electronic administrative proceedings and pathologies of automated administrative documents are specially investigated. Special attention is paid to formal defects and to those defects concerning the signature of electronic administrative documents: signature of an electronic document printed on paper; lack and disavowal of a signature. This research also examines the possibility to apply traditional legal defects (lack of jurisdiction, abuse of power, infringement of the law) to the specific area of computerized administrative documents.