Administrative Discretion in the Context of Automation and Artificial Intelligence

This article examines the impact of artificial intelligence and automated systems on the exercise of discretionary powers by public administrative authorities. It distinguishes bound powers, administrative discretion and judicial discretion, and proposes three dimensions for analysing administrative choice: normative, case-specific and technologically mediated. Drawing on Ukrainian legislation, thirteen publicly available Supreme Court judicial acts in which the author served as judge-rapporteur, and the case law of the European Court of Human Rights and the Court of Justice of the European Union, the study identifies the conditions under which automation may constrain administrative arbitrariness and the risks of unlawfully narrowing discretion through software architecture. It proposes a seven-part test for judicial review of algorithmically assisted administrative decisions and an amendment to Article 62 of the Law of Ukraine “On Administrative Procedure” concerning the limits of fully automated adoption of administrative acts. The anti-corruption and economic effects of automation are treated as propositions requiring empirical verification.