Administrative Discretion Research Articles

ПРОБЛЕМЫ УСМОТРЕНИЯ И ЗАКОННОСТИ ПРИ ПРИМЕНЕНИИ МЕР АДМИНИСТРАТИВНО-ПРОЦЕССУАЛЬНОГО ПРИНУЖДЕНИЯ

The article deals with the problem of administrative discretion in the application of administrative procedural coercion measures. The author noted that not all issues can be regulated by law, and therefore, when applying coercive measures, it is necessary to take into account non-legal factors that must meet the requirements of the law and increase the effectiveness of coercion. The article presents various points of view on the concept of legal discretion, and formulates its own position on the phenomenon under consideration.

Limits to discretion and automated risk assessments in EU border control: Recognising the political in the technical

AbstractThis article analyses how the automation of border control challenges the rule of law requirement on sufficient limits to discretion by using the idea expressed by the Court of Justice of the European Union (CJEU) non‐delegation doctrine that it is possible to make a clear distinction between technically complex assessments and political discretion. To illustrate these challenges, the article uses the examples of the European Travel Information and Authorisation System (ETIAS) and the conferral of discretionary powers to EU agency Frontex to establish pre‐determined risk criteria. The article argues that not recognising the inherent political aspects of exercising technical powers leads to insufficient limits to discretionary powers in the context of automated risk assessments. Beyond raising serious rule of law concerns of arbitrary exercise of power, the idea that technical assessments and policy choices can be clearly separated enables ‘algorithmic discretion’ as a new form of administrative discretion.

Усмотрение в деятельности органов исполнительной власти как форма реализации их компетенций

The absence of the term “administrative discretion” in the domestic legislation is not an obstacle to its broad interpretation by scientists. Discretion appears where there is an administrative legal relationship. The article uses dialectical and general scientific methods: synthesis, induction, and the method of system analysis. In this paper, some theoretical aspects related to the legal nature of administrative legal relations are considered. The author analyzes administrative discretion, which manifests itself in the interaction of executive authorities and their subordinate institutions when making administrative decisions. Defining the legal structure of such interaction, the author identified vertical and horizontal — diagonal relations and came to the conclusion about the negative deformation of the “choice of the moment of entry into force” as a manifestation of administrative discretion by executive authorities.

Административное усмотрение в системе обеспечения государственного суверенитета: функциональный анализ

Discretionary powers of the law enforcement system in general and state security bodies in particular is a deep problematic layer of modern human rights theory. Analysis of administrative discretion of executive authorities in the functional-legal context is required in order to be able to assess the discretionary activity of these bodies in general and as a whole, and not in any part. Regulatory and protective function of administrative law play an important role in the system of ensuring state sovereignty. However, sovereignty must be preserved both in normal (normal, everyday, ordinary) and extraordinary (special, special, extraordinary) conditions. In the first case, there are no threats to statehood, and sovereignty is maintained by sub-functions of the regulatory function. In the second case, there are already some appropriate extraordinary circumstances (military conflicts, rebellions against the government, natural disasters, etc.), for the elimination of which both functions under discussion are involved, but above all - the protective function. Administrative discretion in ensuring state sovereignty is mainly present in the framework of the protective function, it is realised in ensuring state sovereignty only when there are such extraordinary circumstances that threaten the statehood as such. Modern theory and practice of ensuring state sovereignty usually distinguish two basic approaches to the discretionary powers of executive authorities in emergency conditions. The first of them is based on the norms of Russian law, and the second - on the norms of international law, and for simplicity of the reader's perception we will designate them conventionally as the Russian approach and the international approach. The international approach declares the opposite - in order to neutralise internal and external threats to state sovereignty, the agents of executive power have the right not only to exercise all the powers granted to them by law, but also to significantly exceed them, guided by the ancient maxim «necessitas legem non habit». Freedom of action in relation to the Russian approach is described by the formula «intra legem» (from the Latin «within the law»): in the event of an emergency situation, a competent person can choose only those managerial decisions that are explicitly provided for in a special regulatory legal act. This approach mediates the classical domestic ideas about administrative discretion as a purely legal category. The authors concluded that in the Russian Federation administrative discretion plays a priority role in the system of ensuring state sovereignty. In this regard, in almost any country, the competence and specificity of the activities of special services officers, if not provoking, at least not preventing the commission of certain unlawful acts against citizens in conditions that threaten the existence of the state itself. It is considered to be a very modest «payment» for state security (but in Western countries it is still much larger than in Russia).

Navigating the Traffic Light Theories of Administrative Law: An Examination of Judicial Deference and Administrative Discretion

Navigating the Traffic Light Theories of Administrative Law: An Examination of Judicial Deference and Administrative Discretion

The Original Presidency: A Conception of Administrative Control

Abstract The two predominant conceptions of executive power and supervision over the administrative state are inadequate. One maintains that all administrative discretion is the President’s, and that by virtue of the grant of executive power the President can both remove and control the discretion of all subordinate officers. That poses a possible textual problem: it seems to make the Opinions Clause superfluous. The other conception maintains that the President is, at best, a “persuader-in-chief,” with no constitutional right to control administrative discretion or to remove officers tasked with implementing statutory duties. Although this view makes sense of the Opinions Clause, there is no historical evidence for it. The proponents of these two schools of thought have thus been locked in a decades-long stalemate, with competing and irreconcilable paradigms of total control or no control. This Article recovers another, lost way of thinking about presidential power. According to this conception, Congress can insulate inferior officers from removal because they must follow orders. As for principal officers, the President can remove but not control them, at least not directly. There is no constitutional obligation on the part of principal officers to obey; the only inducement is the threat of removal. The Opinions Clause, far from being superfluous, then assures the President the power to acquire information to exercise intelligently the power to remove. In addition to this account’s textual and structural virtues, it appears to have been a relatively widely shared understanding of presidential power at the Founding, enough so to be within the range of plausible original meanings. This understanding of executive power may seem overly formalistic, but it is functionally more desirable than the two competing accounts that allow for total control or total balkanization.

Reflections on administrative discretion

Reflections on administrative discretion

ETHICAL DILEMMAS IN THE ALLOCATION OF LOW-COST HOUSES: A SOUTH AFRICAN CASE STUDY

This paper is a culmination of an empirical study which sought to investigate the ethical dilemmas and Clientelism in the allocation of low-cost houses. Section 26 (1) of the Constitution of the Republic of South Africa, 1996 eloquently states that ‘everyone has the right to have access to adequate housing’. Low-cost houses commonly known as ‘RDP houses’ are government’s approach in responding and respecting the constitutional right to adequate housing for all deserving South Africans. This paper argues that the low-cost housing system in South Africa is concocted by ethical dilemmas and conflict of interest such as corruption, nepotism, administrative discretion, and policy dilemmas amongst others. The paper adopts a combination of mixed methods (qualitative and quantitative research approaches) and content analysis. The paper followed a case study approach whereby 10 selected villages within the jurisdiction of the Greater Giyani Local Municipality, Limpopo Province were randomly sampled for data collection. Therefore, questionnaires were administered and collected, interviews conducted and documents relating to the discourse of this study were analysed in context of the general objectives of the study. This was done with a view of proposing recommendations that can be used to minimise and curb unethical conduct and the use of public goods for the benefit of political parties, particularly those running the machinery of government.

Legal Force of an Administrative Act: The Problem of Definition

The legal force of an administrative act determines its validity, affects the powers of an administrative body that adopted this act to change or cancel it, and the legal force makes the act binding on every administrative authority and every person interested in this act. This term has not yet been fully studied and is absent from Russian legislation. There are some questions about the implementation of the theory of the substantive and formal legal force of an administrative act into the doctrine. There are also problems of the relationship between the legal force of the original act and the act derived from it. It is necessary to clarify the possibility of using administrative discretion when resolving issues of the legal force of administrative acts. To research legal force of an administrative act, traditional methods of legal study were used, especially the historical-law method and the comparative law method, which are of great importance for this article. They have allowed to find Russian tradition, which has to be used to develop the doctrine of legal force of an administrative act, and the main foreign legal research on this subject could be compared with Russian thought and common features were discovered that could also be used to improve the Russian doctrine. As a result, the terms substantive and formal legal force should be returned to the Russian legal vocabulary, since they were used to describe legal force in our legal tradition. Interesting results can be obtained by comparing judgements and administrative acts, and the specificity of administrative acts will be emphasized. This way allows to apply some legal constructions characteristic of a judicial theory well developed in practice, including the “Roman basis” of the legal force of an administrative act. The division of administrative acts into void and voidable will make it possible to clarify ideas about their legal force, as well as the powers of authorities to amend or cancel such acts. The scope of administrative discretion when deciding questions of the validity of void and voidable acts will also vary.

ПРО ДИСКРЕЦІЙНІ ПОВНОВАЖЕННЯ ОРГАНІВ ДЕРЖАВНОГО УПРАВЛІННЯ ЩОДО ВИЗНАЧЕННЯ ПРАВОВОГО СТАТУСУ ОКРЕМИХ СУБ’ЄКТІВ В ПЕРІОД ЗАПРОВАДЖЕННЯ ВОЄННОГО СТАНУ В УКРАЇНІ

The article provides a brief overview of the conceptual legal framework defined by the title of the article regarding foreigners and stateless persons, refugees and migrants, etc. Recognizing the place of limitation of discretionary powers among the requirements of the rule of law, it is necessary, first of all, to clarify the meaning of the term “discretionary powers”. The Dictionary of Foreign Words defines the term “discretion” as “the decision of an official or state body to resolve a certain issue at its own discretion”. In general, this definition corresponds to the broad meaning of the term, but it is too general and does not reflect its legal aspects. After all, a literal understanding of this definition should be called arbitrariness of an official, not authority in any form. The absence of certain conceptual frameworks for this definition makes it illogical and unlawful. The study analyzes certain aspects of the regulation by state administration bodies of some issues of the legal status of the mentioned subjects during the introduction of martial law in Ukraine. It is noted that in the conditions of modern international relations, the movement of people between states has increased significantly in recent years, at the same time, there is a noticeable lack of research into certain issues of determining and regulating the legal status of certain subjects during martial law in Ukraine through the use of discretionary powers of competent state administration bodies . The study notes and poses relevant questions regarding the improvement of some features and signs of the introduction of administrative discretion by the SBU bodies regarding the legal status of foreigners, statelesspersons, refugees and migrants during the period of martial law in Ukraine, and the author's own thoughts on this matter are expressed.

Principles of Administrative Discretion: A Case Study of Pakistan

Principles of Administrative Discretion: A Case Study of Pakistan

Administrative discretion abuse of regulatory measures

Administrative discretion abuse of regulatory measures

ОЦЕНКА ВЛИЯНИЯ НА УПРАВЛЕНИЕ ГОСУДАРСТВЕННОЙ БЮРОКРАТИЕЙ НИГЕРИИ ЕЕ ПЛЕМЕННОГО И ЭТНИЧЕСКОГО СОСТАВА: КАДРОВЫЙ И ГОСУДАРСТВЕННО-ПОЛИТИЧЕСКИЙ ПОДХОД

This paper uses empirical studies and case studies to examine the role of ethnicity and tribalism in the Nigerian public bureaucracy. The paper is anchored on social dominance theory and bureaucratic theory. The paper, based on a triangulation approach (content analysis combined with a survey), reveals that tribal affiliation, followed by religion, is the topmost factor influencing the composition and management of the Nigerian federal bureaucracy. The study reveals that ethnic and tribal ties between different ethnic groups have a significant impact on bureaucratic processes and administrative functions such as recruitment and appointments. The study reveals that bureaucrats in Nigeria use administrative discretion to alter public policies and influence public values in favor of their kinship. This causes public bureaucracy to become irrational, unethical, divisive, parochial, and unmeritorious as ethnic and racial prejudices and biases take precedence in the composition and management of the public sector. The paper recommends inclusive governance and must redesign the institutional structure by creating an overarching level of board management to oversee the affairs of the Federal Character Commission (FCC) to reduce its apparent politicization or skewness that contradicts the original tenets upon which it was founded.

ЗВУЖЕННЯ ПРАВ МЕЖ РОЗСУДУ ЗА ВТРУЧАННЯ У ПРАВА І СВОБОДИ ЛЮДИНИ – ЗАКОН УКРАЇНИ «ПРО АДМІНІСТРАТИВНУ ПРОЦЕДУРУ» І СУДОВА ПРАКТИКА У ФРН СТОСОВНО ЗВУЖЕННЯ МЕЖ РОЗСУДУ

Goal. To determine the conditions and limitations during the application of administrative discretion, which are determined by the Constitution of Ukraine. Methods. The scientific provisions presented in the article are based on the use of general and special methods of scientific knowledge (logical-co-semantic method, comparative-legal, systematic, methods of analysis and synthesis, etc.), the choice of which was determined by the purpose and tasks of the research, its object and subject. The results. The article emphasizes that at the initial stages of the formation and development of European, in particular, German administrative law, the narrowing of discretion was not discussed in legal literature and law enforcement practice. However, the situation began to gradually change due to the strengthening of the importance and weight of fundamental rights, the observance of which during the exercise of discretionary powers is currently a mandatory standard. The author analyses the content of the duty of the administrative body to observe the human rights and freedoms guaranteed by the Constitution of Ukraine within the limits of administrative procedures. It is emphasized that for its implementation, the administrative body must clarify all the circumstances of the case, acting on its own initiative. The duty to establish the circumstances of the case is limited by what the administrative body is able to do and what is expedient in each specific situation. Particular attention is paid to the question of how the legal position of the addressee of the planned administrative act (action) should be taken into account in view of the provisions of the Constitution when making a decision on the basis of discretional powers. The author analyses the content of the following constitutional (fundamental) rights and principles (the right to equal treatment, proportionality) and formulates the positions that the administrative body should consider Conclusions. The central criteria for observing the rights and freedoms of the addressee of the event are the duty of equal treatment and the principle of proportionality. Since the reduction of discretion or narrowing it to zero is the result of the influence of the rights and freedoms guaranteed by the Constitution, the decision of an administrative body is considered legal if it was adopted within the available limits of discretion. And any other decision will be considered a significant interference with the addressee’s rights and freedoms and will no longer be proportionate. The same applies to the obligation to treat similar cases similar and treat different cases differently, because if the discretion of the administrative body is limited or reduced to zero, any other decision is a violation of the duty of equal treatment. These two criteria are clear requirements that administrative bodies must comply with when making decisions, and the verification of compliance with these criteria is carried out by administrative courts in accordance with Art. 2 KAS. This control applies to most cases of abuse of discretion, and therefore complex constructions of abuse of discretion are necessary only in some very special cases.

In The Shadows of Governance: Exploring the Untamed Territories of Administrative Discretion

This research explores administrative discretion's potential in unexplored territories within governance structures, highlighting its impact on public policy and organizational functioning. The primary aim of this study is to comprehensively understand and map these untamed territories, offering insights into their identification and implications for governance effectiveness. Qualitative research methods are employed, thoroughly analyzing secondary data sources, including academic literature, government reports, and case studies. Through this method, the study explores the multifaceted dimensions of administrative discretion, identifies the uncharted territories where it operates, and assesses its implications on the overall effectiveness of governance structures. Research findings are: Legal, political, and organizational factors all impact the multifaceted concept of administrative discretion in public administration. This concept is crucial for effective and accountable governance, using theoretical frameworks like principal-agent theory. Identifying and mapping untamed territories in governance involves a multi-faceted approach, requiring document analysis, stakeholder consultations, and expert interviews to develop responsive governance structures. Assessing the impact of untamed territories on governance effectiveness is crucial for responsiveness to evolving challenges. Traditional models need a paradigm shift, embracing innovation, collaboration, and adaptability to navigate complexities

Sankcje w postaci kar pieniężnych

Over the several decades of her scientific activity, Professor Teresa Rabska played an outstanding role in the formation of Polish administrative law, particularly during the political and economic transformations of the late 1980s, when Prof. Rabska was actively involved in the field. Within public economic law, the role of the state and its tools for influencing the economy have evolved fundamentally. In this area, the administrative sanctions with which administrative bodies were equipped have developed profoundly and taken on an important function. Undoubtedly, the European Union plays a significant role in the development of administrative penalties. Penalties are imposed in the form of administrative decisions, issued according to procedures governed by the Code of Administrative Procedure. This Code and other laws enumerate the prerequisites for assessing a penalty. Among these, the omission of the element of guilt must be a cause for concern. Consequently, particularly in the case of penalties imposed on individuals, the penalty may be imposed on a person to whom no fault can be attributed in the violation of the law that caused the punishment. The system of fines thus arouses great dissatisfaction among market participants. An analysis of the system of administrative penalties in Poland raises the issue of harmonizing solutions on the scale of the European Union, as it is expected that penalties should be of similar size in all member states. However, the statutory enshrinement of high penalties in the current legislation does not prejudge the practice of imposing them. Given the smaller revenues generated in Poland, the penalties imposed should be proportionately lower. Moreover, the law does not categorically require the imposition of high penalties. The legislation often uses the word “may,” from which some people draw conclusions about the imposition of penalties under administrative discretion, which is not legitimate.

The DMA’s Ithaca: Contestable and Fair Markets

The Digital Markets Act (DMA) obligations will start to apply to the designated gatekeepers starting in March 2024. Its main objectives are set out in Article 1(1) as those of ensuring contestable and fair markets in the digital sector across the Union where gatekeepers are present, to the benefit of both business and end-users. However, the definition and the interpretation the Commission will provide for both objectives are far from clear. In turn, this makes future-proofing the DMA a more difficult task for gatekeepers, regulators and third parties, insofar as its obligations are construed upon one of the two stated goals depending on the provision or on both of them more generally. The paper addresses this problem by narrowing the gap between those concepts in their relationship with their underlying economic theorems. Later on, it observes the manifestations of contestability and fairness throughout the text and the regulation’s legislative process accounting for their four distinct expressions: objectives, indicators, and the legal bases for triggering the supplementary and precautionary measures of the instrument. Digital Markets Act, Contestability, Fairness, Objectives, European Commission, Legislative Process, Administrative Discretion, Interpretation, Digital Competition, Gatekeepers

Law and discretion in monetary policy and in the banking union: Complexity between high politics and administration

The controversy over the degree of judicial review of monetary policy decisions triggered by the contrasting Weiss judgments of the German Federal Constitutional Court and of the Court of Justice of the European Union invites an inquiry into the role of law in areas characterized by a high degree of political and technical complexity. This article singles out the structural conditions that qualify complexity in specific instances of decision-making: prognostic assessments, goal-oriented decisions, marked by uncertainty, legal indeterminacy, and discretion. These traits characterize both monetary policy decisions and some regulatory decisions taken within the banking union, such as the setting of minimum requirements for own funds and eligible liabilities (MREL) and the calculation of the leverage ratios of credit institutions (Livret A judgments). Irrespective of the very distinct formal-institutional legal frameworks of these two policy fields, in those conditions legality may be determined by the discretionary choices of the decision-maker. For this reason, they impact the court’s deployment of legal principles, namely proportionality and careful and impartial examination. This cross-sector comparison sheds light on the relative specificity of monetary policy, and leads to rejecting the transposition of a distinction between “high politics” and “ordinary administration” to EU law, as a means of both explaining and guiding different degrees of judicial review in conditions of complexity. The different constitutional relevance of monetary policy decisions and of “ordinary” banking supervision requires not a distinction that can rationalize judicial review, but a full consideration of the role that the law must have in supporting non-judicial accountability. judicial review of administrative discretion, complex technical and economic assessments, monetary policy, proportionality, banking union, principle of careful and impartial examination

Incorporating migrants into National COVID-19 Vaccination Plans in Latin America: A comparative analysis of policies in seven countries

Vaccination against COVID-19 is an essential public health tool for pandemic control. Inclusion of migrants in COVID-19 vaccination is not only ethically necessary from a right-to-health perspective but also technically indispensable for disease control. This study aimed to characterize the inclusion of international migrants, refugees, and asylum seekers in COVID-19 vaccination policies in Latin American countries that have the greatest recent increase in the reception of migrants.We conducted a content analysis of public policy documents issued between March 11, 2020, and June 30, 2022 by the Ministries of Health of seven countries: Brazil, Chile, Colombia, Costa Rica, Ecuador, Mexico and Peru. Documents were located through Ministries of Health web pages, references in scientific literature, and the Pan American Health Organization's Information Platform on Health and Migration in the Americas. A content analysis was performed of the documents that were located, along six dimensions: migrants' right to vaccination, temporality of vaccination, administrative discretion, policies to facilitate access, language or cultural considerations, and normative, ethical or technical justifications provided.Eighty-six public policy documents were reviewed. Their contents showed that none of the countries explicitly excluded migrants from vaccination, nor did they explicitly define restrictions on this population. One barrier that was detected was to require identity documents in order to be vaccinated or to receive a vaccination certificate, which could be difficult for migrants to obtain. Few countries defined actions to facilitate or promote the vaccination of migrants. The documents that mentioned justifications for vaccinating migrants presented reasons that were mainly based on the recognition of the right to health, the principle of non-discrimination and equity.The countries studied generally had inclusive policies but were limited in terms of dealing with potential barriers to access. The lack of mechanisms to guarantee the right to health is a limitation that countries in the region should address.

Prioritizing exceptional social needs. Experimental evidence on the role of discrimination and client deservingness in public employees’ and citizens’ discretionary behavior

This study examines how public employees and citizens exercise administrative discretion in a dilemma. To identify and compare the moral reasoning underlying discretionary choices, we conducted a conjoint experiment among public employees, future civil servants, and lay citizens in Germany. In the conjoint, respondents were forced to prioritize between two equally eligible welfare claimants. Claimants’ profiles vary concerning attributes reflecting earned-deservingness (e.g., non-self-inflicted welfare dependency), need-deservingness (e.g., dependent children), and attributes that can be used for unlawful discrimination (e.g., nationality). While some signs of discrimination exist, need-deservingness is the most important factor shaping respondents’ prioritization choices. More importantly, we find no substantial differences in prioritization choices among public employees and citizens, indicating congruence in moral reasoning. From these findings, we conclude that efforts to reflect on national prejudices in the education of civil servants should be intensified, and a renewed emphasis on administrative ethics is required to equip public employees with the ability to make impartial yet balanced judgments in administrative dilemmas.