Judical review of discretionary powers in the activity of historical monuments protection bodies. The experience under the case law of Polish administrative courts

Abstract

The sovereign nature of the forms of operation of cultural heritage protection authorities, the polarization between the individual interest and the public interest, discretion margin in the activities of the authorities, all these elements create a kind of “explosive mixture”, which is the source of the legal disputes between the owners of historical monuments and historical monuments protection bodies. The key element of the guarantee of individual freedom is judicial review of public administration. Therefore, it is a matter of dispute to which extent the public administration is subject to judicial review when performing the tasks entrusted. The aim of this article is to analyze how Polish administrative courts approach the problem. What methodology of the review of discretion margin they use? How they solve the dilemma: who makes the final decision – the body or the court? Do they retain the judicial self-restraint or rather they are willing to interfere in the merits of the decision?