ADMINISTRATIVE DISCRETION: UKRAINE AND EUROPEAN UNION STATES (COMPARATIVE AND LAW ASPECT)

Abstract

The discrete nature of the legislation prescriptions determines the necessity to use discretion. The correct application of administrative discretion is a factor in human rights implementation; improper use of discretion can be regarded as public authorities’ arbitrariness determining the relevance of the research topic. Ukraine’s participation in the European integration processes is an additional factor that increases the urgency of understanding the issue of administrative discretion. The purpose of the study is to clear up the requirements for administrative discretion in Ukraine and the European Union states. It is emphasized that in the conditions of the indispensability to constantly improve the public administration agencies’ activity in order to protect human rights in the best way, the problems of various aspects of the administrative agencies’ activity (including the use of administrative discretion) acquire a permanent character. It is noted that administrative discretion is a relatively new legal institution for the national law system. During the stay as part of the Soviet state, this topic was virtually not covered by the jurisprudence of that time, there were no fundamental studies of the abovementioned legal institute. The regulatory consolidation of administrative discretion in German legislation (Law on Administrative Procedures), as well as within the Council of Europe (Recommendations of the Committee of Ministers Concerning the Exercise of Discretionary Powers by Administrative Authorities) is analyzed. It is summarized that the change in approaches to administrative discretion understanding allowing to strengthen the public authorities activities’ efficiency is one of the directions for further domestic administrative agencies’ activities improvement. Herewith, it is advisable to take the concept of this legal institution formed within the European Union states as the basis for the interpretation of discretion. It is substantiated that administrative discretion is the means ensuring effective performance of the powers entrusted to public authorities; it is a way of fulfilling the tasks assigned to public administration agencies for human rights’implementation. Therefore, the discretion application cannot encroach the purpose of the powers. Moving away from the dogmatic aspects of discretion perception and focusing attention on the practical aspects of its implementation is indicated as a further direction of scientific research into the problems of administrative discretion.