Administrative Discretion and its Judicial Evaluation
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Abstract
The article concentrates on the concept of administrative discretion and other issues concerning its proper exercise and control in the Republic of Lithuania. In particular, theoretical and practical aspects relating to the issue of the adequacy of evaluation of administrative discretion in Lithuanian administrative courts are analyzed.
A conclusion is made that the main problems relating to the exercise and the judicial control of administrative discretion in Lithuania are mostly conditioned by the lack of consistent and adequate legal base establishing, on the one hand, the main principles, standards upon which it must be exercised in a proper and lawful manner so as to be in conformity with the intentions of the legislature that conferred it, and, on the other hand, the role of administrative courts in the process of examination of whether discretionary powers had been implemented properly.
Presently, the Law on Administrative Proceedings of the Republic of Lithuania does not provide for an unambiguous possibility for an administrative court to scrutinize the exercise of administrative discretion beyond the examining of compliance of the act of an administrative body with the authority conferred to it, the main relevant procedural requirements, legally recognized general administrative principles, and, depending on the concrete case, possibly its compliance with other special standards or principles, prescribed by relevant laws applicable in that specific situation. Therefore when a Lithuanian administrative court comes across an issue of the use of administrative discretion it tends to recognize the spheres in which administrative authorities are granted discretionary powers, but judicial evaluation of administrative acts belonging to such areas is restricted. Naturally, there is also no possibility provided for in the Law on Administrative Proceedings to declare an administrative act as unlawful on the sole basis that it had been concluded that the said administrative act had been passed in the result of an improper exercise of discretionary administrative powers.
It is concluded in the article that laws regulating administrative judicial proceedings in the Republic of Lithuania must be amended so as to include a possibility for the court to examine the use of discretionary powers in scrutiny, as well as to establish the right of the court to annul such an act on the sole basis that an improper use of administrative discretion had been determined.
A conclusion is made that the main problems relating to the exercise and the judicial control of administrative discretion in Lithuania are mostly conditioned by the lack of consistent and adequate legal base establishing, on the one hand, the main principles, standards upon which it must be exercised in a proper and lawful manner so as to be in conformity with the intentions of the legislature that conferred it, and, on the other hand, the role of administrative courts in the process of examination of whether discretionary powers had been implemented properly.
Presently, the Law on Administrative Proceedings of the Republic of Lithuania does not provide for an unambiguous possibility for an administrative court to scrutinize the exercise of administrative discretion beyond the examining of compliance of the act of an administrative body with the authority conferred to it, the main relevant procedural requirements, legally recognized general administrative principles, and, depending on the concrete case, possibly its compliance with other special standards or principles, prescribed by relevant laws applicable in that specific situation. Therefore when a Lithuanian administrative court comes across an issue of the use of administrative discretion it tends to recognize the spheres in which administrative authorities are granted discretionary powers, but judicial evaluation of administrative acts belonging to such areas is restricted. Naturally, there is also no possibility provided for in the Law on Administrative Proceedings to declare an administrative act as unlawful on the sole basis that it had been concluded that the said administrative act had been passed in the result of an improper exercise of discretionary administrative powers.
It is concluded in the article that laws regulating administrative judicial proceedings in the Republic of Lithuania must be amended so as to include a possibility for the court to examine the use of discretionary powers in scrutiny, as well as to establish the right of the court to annul such an act on the sole basis that an improper use of administrative discretion had been determined.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
