With a view to ensuring the implementation of the task assigned to the administrative proceedings, and the “flexibility” thereof, and also with the aim of the widest protection and reinstatement of rights, freedoms, and interests of individuals (legal entities), and efficient exercise of procedural functions, administrative courts, as well as the Administrative Cassation Court within the Supreme Court (ACC SC) are endowed with procedural powers which they exercise at their own discretion. At the same time, the procedural discretion of ACC SC may not be unlimited and willful. The said discretion (freedom of action) is underlain by actual circumstances, legislative requirements, court practice, and the case law of the European Court of Human Rights.

It should be noted that the need for a well-substantiated choice is objectively inherent in the entire process of consideration and resolution of an administrative case or in the procedural actions related thereto.

The purpose of the article is to demonstrate the essence and the specific features of the procedural discretion of ACC SC, and the criteria of such discretion; these are the fundamental theoretical and applied provisions which should be given appropriate attention. The emergence of procedural discretion of administrative courts in general and procedural discretion of the administrative court of cassation in particular stems from the adoption of the Code of Administrative Proceedings of Ukraine (CAP of Ukraine) in 2005.

Each procedural action taken, in particular, commencement of cassation proceedings, involves not only checking whether actual circumstances of an administrative case are consistent with the provisions of Ukraine’s CAP, but also a thorough assessment of qualifying characteristics of an administrative case (actual disputed legal relations, the fact to be proven, the parties to the disputed legal relations, the subject vested with power and other subjects, statutes of law), actual or procedural circumstances (“a case of minor complexity”, “an issue of law of fundamental importance”, “significant public interest or exceptional importance of a case”, “erroneous classification of a case by a trial court into the category of small complexity cases”, etc.).

As a result of such assessment, ACC SC chooses a procedural decision of a certain type from those provided for by Ukraine’s CAP. Each procedural action (the entirety thereof), each stage of the administrative procedure is covered by a considerable scope of evaluative concepts, and this explains the wide procedural latitude of ACC SC’s procedural discretion. Accordingly, each type of ACC SC’s procedural activity is characterized by the corresponding “own” type of procedural discretion which requires thorough scientific research and description.

ACC SC is granted a rather ample freedom to exercise its powers; but the concept, content and specific features of procedural discretion have not yet been properly substantiated by modern science of administrative procedure, and have not been tested by the practice of administrative proceedings. However, even today it is obvious that ACC SC’s freedom to exercise its powers (its procedural discretion) has different types, boundaries and the content of its manifestation.

Each type of ACC SC’s procedural discretion has its “own” list of criteria. While processing factual circumstances, interpreting them and the relevant provisions of substantive law, making conclusions about whether actual circumstances are consistent with the law, the Court checks their compliance with the criteria from the list which corresponds to a certain type of procedural discretion. Of course, it is not easy to make an exhaustive list and describe the criteria of ACC SC’s procedural discretion in a certain administrative case, since quite often actual circumstances of a case are not unambiguous, and it is quite difficult to assess, interpret and compare them with the provisions of substantive law.

Bibliography

Authored books

1. Hufen F, Verwaltungsprozessrecht [Textbook] (7, vollig neu bearbeitete Auflage Verlag C H, Beck 2008) (in German).

2. Tsyppelius R, Metodyka pravozastosuvannya [Methodology of Law Enforcement] (Yustinian 2016) (in Ukrainian).

Edited books

3. Bevzenko V ta inshi (uklad), Nauka administratsiyi y administratyvnoho prava. Zahalna chastyna (za vykladamy profesora Yuriya Paneyka) [The Science of Administration and Administrative Law. General Part] (Dakor 2016) (in Ukrainian).

4. Hrytsenko I ta inshi (uklad), Administratyvne pravo i protses UNR v ekzyli: nevidoma pravnycha spadshchyna Ukrayiny [Administrative Law and Process of the Ukrainian People’s Republic in Exile: Ukraine’s Unknown Legal Heritage] (I Hrytsenko za zah red, Dakor 2015) (in Ukrainian).

5. Shloer B ta Kornuta R, Administratyvna yustytsiia v Ukraini: proekt zakonu pro sudy v administratyvnykh spravakh 1932 roku [Administrative Justice in Ukraine: Draft Law on Administrative Courts of 1932] (Foliant 2011) (in Ukrainian).

Journal articles

6. Holovatyy S, ‘Verkhovenstvo prava (pravovladdya): yak yoho tlumachytʹ Venetsiyska Komisiya. Verkhovenstvo prava: dopovid, skhvalena Venetsiiskoiu Komisiieiu na 86-mu plenarnomu zasidanni (Venetsiia, 25-26 bereznia 2011 roku)’ [‘Rule of Law (Power): How it Interpreted by the Venice Commission. Rule of Law: Report Endorsed by the Venice Commission at the 86th Plenary Meeting (Venice, March 25-26, 2011)’] (2011) 10 Pravo Ukrainy (in Ukrainian).

7. Pudel’ka Y, ‘Ponyatiye usmotreniya i razgranicheniye s sudebnym usmotreniyem’ [‘The concept of discretion and distinction from the judicial discretion’] v Yezhegodnik publichnogo prava 2017: Usmotreniye i otsenochnyye ponyatiya v administrativnom prave [Public Law Yearbook 2017: Discretion and Evaluation Concepts in Administrative Llaw] (Infotropik Media 2017) (in Russian).