Discretionary Powers and Judicial Control over Their Implementation

This article is dedicated to the study of discretionary powers held by public authorities and the judicial control over their exercise. In Ukraine, the legal definition of discretionary powers has only recently been established at the legislative level. Specifically, the Law of Ukraine “On Administrative Procedure” No. 2073-IX of February 17, 2022, defines discretionary powers as the authority granted to an administrative body by law to choose one of several possible decisions in accordance with the law and the purpose for which such authority was conferred. The rapid evolution of social relations, the emergence of new phenomena as subjects of legal regulation, and the functioning of state authorities during crises have led to the active use of discretionary powers by administrative bodies. Judicial bodies, on the one hand, verify the implementation of discretionary powers by public authorities by assessing the legality of decisions made through administrative discretion. On the other hand, the judiciary itself exercises its own form of discretion—judicial discretion—when fulfilling its constitutional functions. Thus, discretion in these legal relations manifests itself in two forms. When discretion is exercised by an administrative authority, it serves as a tool that enhances the ability of public authorities to make optimal decisions to best fulfill their duties. Judicial discretion, in turn, plays a crucial role in ensuring effective, fair, independent, and timely protection of violated rights, including those infringed upon by public authorities through administrative discretion. The conclusion of this study emphasizes that judicial discretion performs an additional fundamental function. Through the lens of the “checks and balances” doctrine, it acts as a mechanism for balancing state power. Moreover, attention is drawn to the fact that judicial interference in the scope of administrative discretion must be justified, well-reasoned, and aimed at affirming and safeguarding fundamental human rights and freedoms.