National School of Judges and EU Project Pravo-Justice Trained Trainers on Judicial Control over Administrative Discretion

On November 25-26, 2021, a two-day workshop “Judicial Control over the Exercise of Discretionary Powers by Administrative Bodies” was held in Kyiv. The event was organized by the National School of Judges of Ukraine together with the EU Project Pravo-Justice to train trainers for judges of administrative courts from various regions of Ukraine.

In his welcoming speech, the rector of the National School of Judges of Ukraine Mykola Onishchuk noted that the method of restoring a violated right should be effective and excluding any further illegal decisions, actions or omission of the administrative authority, so that in case of non-execution or improper execution of a court decision there would be no need to go to court again, as the decision would be enforceable. The rector also highlighted the importance of obliging administrative bodies to take the actions that the court deems necessary to protect a violated right.

“When adjudicating, the court must be guided by a single mission, which is the protection of rights. […] The court chooses the method that is necessary, under the existing legal relations, for the proper protection of a violated right,” Mykola Onishchuk said.

“Discretionary powers of administrative bodies and the scope of judicial control over their application are topical issues for European judges. Discretion is very important for making an individual decision (issuing an administrative act). Therefore, it is important to have discretionary powers, but it is no less important to know the scope of judicial review to ensure legal protection of an infringed right,” said Edith Zeller, President of the Association of European Administrative Judges, Judge of the Vienna Administrative Court, International Expert of the EU Project Pravo-Justice.

According to Oksana Tsymbrivska, Senior National Expert of the EU Project Pravo-Justice, Component for Policy and Coordination in the Justice Sector, the findings of the monitoring of administrative justice in Ukraine, held by the EU Project Pravo-Justice in 2018-2020, showed that the national legislation did not provide for any clear rule on the scope of judicial review of the discretion of administrative bodies, or for distinction between the discretion of elected and non-elected authorities, or for difference in the scope of judicial review of individual and collective decisions. In the light of the above, the Project experts prepared a report “Discretionary Powers of Administrative Bodies and Judicial Control over Their Application", which explored the concept of discretion in terms of legal doctrine, European standards, national legislation and case law. In addition, the said Report also offers a practical algorithm for judges to verify the legitimacy of exercised discretion.

“The Law on Administrative Procedure, which was adopted on November 16, defines – for first time ever at the statutory level – the concept of discretionary powers and their limits. We hope it will make judges’ work easier, while also contributing to a more unified judicial practice,” added Oksana Tsymbrivska.

Judges were trained through mini-lectures, solving practical tasks in small groups, and follow-up discussion. The topics covered included the concept of discretion, types and limits of discretionary powers of administrative bodies and judicial control over their application in various areas: land and electoral law, tax and customs services, urban architecture, public service and more. The participant also discussed the application of the European Convention on Human Rights and the case law of the European Court of Human Rights in cases on judicial review of the discretion of administrative bodies.

The course will be part of regular training within the National School of Judges and will cover all administrative judges across Ukraine.