Judicial Control over Discretionary Powers of Public Administration Bodies in Administrative Proceedings of Ukraine

Abstract

The article examines the problem of judicial control over discretionary powers of public administration bodies in administrative proceedings of Ukraine. The doctrinal nature of discretion as administrative judgment is revealed, which implies the ability of a public authority to independently choose one of the lawful options for a decision or action depending on specific circumstances. Three main types of discretion are identified: discretion regarding the decision or action itself, discretion regarding the option of the decision, and discretion regarding the method of action. The regulatory framework of judicial control established by the Code of Administrative Procedure of Ukraine is analyzed, in particular ten criteria for reviewing decisions of public authorities, including legality, reasonableness, impartiality, good faith, prudence, proportionality, timeliness, and others. The impact of the Law "On Administrative Procedure" (2022) on the standards of judicial review of discretionary decisions is studied, particularly the supplementation of legality control with verification of compliance with the principles of administrative procedure. A comparative analysis of models of judicial control intensity is carried out: from marginal (Wednesbury standard in the Anglo-Saxon tradition) to full review (pleine juridiction in the continental system), and the features of the Ukrainian model, which combines elements of both approaches and gradually moves toward expanding the depth of review, are identified. European standards of discretion control are considered, including Council of Europe Recommendation CM/Rec(2007)7 on good administration, the practice of the European Court of Human Rights and the Court of Justice of the EU regarding the application of the proportionality test. Special attention is given to the problems of exercising discretionary powers under martial law conditions in Ukraine, where the expansion of military administrations’ powers creates additional risks for human rights and freedoms. It is substantiated that the optimal model of judicial control involves a balanced approach: verification of the motivation of discretionary choice, compliance with the principles of proportionality and the purpose of granting the power, and protection of fundamental human rights. It is concluded that even under martial law, the standard of judicial review should not be weakened, as it is precisely then that the rule of law requires the most rigorous adherence.