Administracinės diskrecijos esmė ir diskrecijos kontrolės galimybės

Abstract

The conception of discretion and the possibilities of controlling administrative discretion are studied in this article. The article consist of six parts. The essence and significance of discretion are discussed in the first part of the article. There are three powers in a democratic state. Each of them has certain limited rights of choosing their actions. Those limited rights are called discretion. It is a precondition for each power to execute it’s functions independently. It means that each power can make decisions independently. Even having the right of discretion all powers have to obey Constitution, statutes and common principles of law. The legislative administrative discretion is discussed in the second part of the article. The legislative administrative discretion exists because the functions of powers are mixed. The delegation of legislative functions to executive power are related to the legislative administrative discretion. This type of discretion is almost impossible to control. The reason of it is that delegating legislative discretion statutes, which are passed by Seimas, are not concrete. Therefore the executive power can freely choose the means to execute statutes or even to ignore the assignments of Seimas. The concept of administrative discretion, which is different from the legislative administrative discretion, is discussed in the third part of the article. The administrative discretion allows the executive power to choose actions freely, when it is executing its functions of executive power. Administrative legislative discretion allows the executive power to execute quasi-legislative functions. The growth of administrative discretion is analyzed and advantages and disadvantages of this growth are discussed. The differences between administrative discretion and administrative arbitrariness are revealed in the fourth part of the article. Ultra vires doctrine is presented in the fifth part of the article. This doctrine provides the answer to the question whether discretionary powers are abused. The term ultra vires has come from Latin language and means „above power“. Three types of ultra vires are discussed separately: 1) the substantive ultra vires, 2) the procedural ultra vires and 3) the abuse of power. The possibilities of controlling administrative discretion in Lithuania are discussed in the fifth part of the article. The powers and possibilities of administrative courts and Seimas’ Ombudsman institution to control the use of administrative discretion are analyzed. The conclusion is made that administrative courts have limited possibilities to control the use of administrative discretion. When statutes, which are the reason for administrative power to act, are vague and not concrete, the administrative courts have no possibilities to control the use of administrative discretion. The Seimas’ Ombudsman institution has more possibilities to disclose the abuse of discretion, however, it has no power to give orders to correct this abuse. Such power is given to the courts.