Discretionary powers of administrative court: some aspects of their understanding and exercise

Abstract

Having studied Ukrainian general legislative provisions, binding legal opinions of the Supreme Court of Ukraine and the scientific literature concerning the discretionary powers of administrative courts, it is established that, regardless of the use of quasi-dispositive wording expressing the “possibility” or the “right” of the administrative court to make a procedural decision, the existence of grounds for such decisions implies that it has the duty to make this decision or, in exceptional cases, to adequately justify the inconsistency of the decision that could have been made with the tasks and principles of administrative proceedings. It is noted that the discretion of the administrative court cannot be unlimited and is subject to general and sectoral principles, the purpose of administrative proceedings and individual procedural mechanisms and some other factors of a higher order to the provision establishing procedural discretion. For instance, it was determined that deviations from previous decisions made by the same administrative court judge in the same or similar cases are not acceptable. However, not any non-uniform application of law within the freedom of discretion should be justified, but only a difference that has a significant impact on disputed rights and obligations on the participants of the relevant legal relationship.
 It is argued that the discretion of the administrative court, which is not limited by special restrictive legislative provisions, in order to prevent arbitrary decisions, must be accompanied by the obligation to properly substantiate the existence of grounds for making a particular procedural decision with reference to those real factual circumstances, which as far as possible can be measured by objective indicators and verified within the framework of the court decision appellate. It is emphasized that this when exercising discretionary powers is necessary for the administrative court to fulfill general requirements regarding the existence of a rational basis for the decision taken, confirmation of its legality and reasonableness with the help of facts and evidence, relying on which any other judge of the administrative court acting in good faith and with competence in the relevant matters would have sufficient grounds to make the same decision.