Institute of discretion of the subject of authority in administrative judiciary
Authors: Vovk Yurii 
Published: October 2020

Problem setting. Article 19 of the Constitution of Ukraine provides: “Public authorities and local governments, their officials are obliged to act only on the basis, within the powers and in the manner prescribed by the Constitution and laws of Ukraine.” However, quite often this constitutional norm is violated in practice. This forces citizens to apply to the administrative court for protection of the violated right. As a result, the number of citizens’ appeals to the administrative court is constantly increasing. Due to the significant workload, the increase in the number of appeals, the terms of consideration of the administrative case provided in Art. 193 of the Code of Administrative Procedure of Ukraine are often violated by administrative courts and the case is not considered within a reasonable time. At the same time, one of the most problematic categories of disputes in administrative courts are those concerning the discretionary powers of the subject of power. In these disputes, the plaintiff usually asks to recognize the actions (inaction) of the subject of power illegal and oblige to take certain actions. The administrative court usually finds the actions illegal, but does not oblige the subject of power to take certain actions in favor of the plaintiff, referring to the discretionary powers of public authorities and local governments, their officials in making the decision. In the future, citizens are forced to spend a lot of time and money to restore the violated right. Courts in different situations act differently. In addition, the lack of a legislative definition of “discretionary powers” is also a problem.
Analysis of recent research and publications. In the modern scientific literature, the works of Belkin L.M., Boychuk M.I., Wenger V.M., Vlasov A.O., Grin A.A., Zolotareva M.K., Magda S.O., Panov G.V., Staryk A.M., Tarasenko T.M., Fedchuk S.I., and others are devoted to the question of discretionary powers of the subject of power. Along with this problematic issue, the institution of discretion of the subject of power, analysis of the case law of the Supreme Court is not given enough attention.
The aim of the article is to investigate issues related to discretionary powers, determine the possible limits of court interference in the administrative discretion of the subject of power, based on the case law of the Supreme Court.
Results and discussion. In modern conditions, a significant number of cases in administrative courts are related to the discretionary powers of the subject of power. These are mostly social disputes. Given the uncertainty of such a concept as “discretionary powers”, the courts refer in their decisions to the Recommendation NR(80)2 of the Committee of Ministers of the European Council, adopted by the Committee 10 on 11th of March 1980 at its 316th meeting, according to which discretionary powers should be understood as the administrative body, in making decisions, may exercise with a certain discretion. The above means, that such a body may choose from several legally admissible decisions the one, that is considered to be the best in the given circumstances. At the moment, there is a certain case law of the Supreme Court regarding the discretionary powers of the subject of power.
Conclusions. The Supreme Court’s case law seeks to fill the gaps in the lack of proper legislative regulation of the issue of discretion and the relationship between the discretion of the court and the discretion of the subject of authority. However, this case law may not always be completely homogeneous. Given the significant number of cases related to discretionary powers and the lack of proper legislative regulation of this issue, it is time for the Verkhovna Rada to adopt a law to comprehensively regulate this issue, defining the concept of “discretionary powers”. This may provide guidance to the authorities and courts on how to act in specific situations and reduce the number of cases in the courts and will help to properly protect the rights and legitimate interests of individuals and legal entities.