Das Ermessen im ukrainischen Verwaltungsrecht – Entwicklungen seit 2015

Abstract

Ukrainian administrative law is a young field of law. For a long time, some criminal law criteria dominated here, such as the strict view of the specificity of a legal authorization for the encroachment on citizens’ rights. In administrative law, this had the effect that any flexibility of the administration was rejected. Furthermore, the granting of flexibility was linked to corruption. Therefore, the discretion of the administration was not a major issue in legal theory and practice. Since 2015, however, changes can be observed in the practice of the administrative courts, partly also in jurisprudence. The administrative courts examine discretionary decisions of the administration based on the criteria of CoE Recommendation 80 (2) concerning the exercise of discretionary powers by administrative authorities and the relevant practice of the ECtHR. The second innovation is the Law on Administrative Procedures, which was adopted in June 2022 but came into force 15/12/2023. This law provides for a regulation on discretion in line with European standards. This will provide a clear legal framework for administrative discretion, which is also subject to judicial review. Due to the fact, that the current practice of the administrative courts and the new law are based on European legal criteria, the current Europeanised practice will be continued.