СВОБОДА ДІЙ УСТАНОВИ

Abstract

The article considers discretion enjoyed by institutions. Discretion enjoyed by institutions implies that law grants а right to choose between various legal implications for the person who applies the law. Discretion is а legislative tool which helps achieve а high level of fairness in an individual case. Discretion of institutions provided by lawmakers enables an institution to consider the specific circumstances of а specific situation and reach а fairer result. However, even such “freedom” imposes an obligation on the institution to apply it in а responsible and correct manner. Discretion does not mean that the institution is granted absolute “freedom” or arbitrariness. The scope of control of discretion in а higher institution and а court differs. А higher institution independently carries out all feasibility assessments for а second time based on merit, ultimately reaching а similar or different result. The courts can verify the validity of the activities undertaken by the public administration: a) failure to use discretion; b) abuse of discretion; c) misuse of discretion. The courts do not have the right to take а decision on the most appropriate result since it leads to violation of the principle of separation of powers.