It is established that the methodological approach to the study of administrative discretion in the National Police activities provides a deep understanding of its essence and practical application, focusing on the interconnection of normative, social and functional aspects.
By virtue of the application of a comprehensive methodology, including a system of methodological principles of objectivity, systematicity, historicism, comprehensiveness (which determine the logic of scientific research and uarantee
its compliance with the requirements of scientificity), methodological approaches axiological, hermeneutic, structural and functional (which allow analyzing legal phenomena in different contexts and evaluating them in a broad іnterdisciplinary aspect), methods of analysis and synthesis, deduction and induction (which allow identifying the essential characteristics of the phenomenon under study and establishing interconnections between its elements), regularities and risks in the exercise of discretionary powers have been identified, which contributes to the improvement of legal regulation.
The analysis of discretion in the domestic doctrine allowed us to establish the absence of a systematic approach to its study, which causes problems in law enforcement and determining the limits of administrative agencies’ discretionary.
Discretion is not only a tool of managerial flexibility, but also a legal phenomenon that directly affects the balance between administrative expediency and compliance with the principle of the rule of law. It is emphasized that a wrong understanding of discretion as arbitrary discretion can lead to human rights violation.
It is proposed to apply a comprehensive approach to the legal regulation of discretionary powers in Ukraine, which should include a doctrinal distinction between discretion and arbitrariness (an example of which is the European
experience of interpreting the doctrine of margin of appreciation), the formation of criteria for the legality of discretionary decisions and the development of effective mechanisms for their judicial control.
It is stated that improving the legal regulation of discretionary powers requires a systematic study of their legal nature, the adaptation of foreign experience and the introduction of effective control mechanisms. Only such an
approach will help strengthen the rule of law, increase the predictability of administrative decisions, and ensure fair law enforcement.
Legal nature and limits of discretion application are specified, taking into account the standards of the rule of law. It is noted that discretion is a tool for the exercise of powers (at the same time, the interpretation of the term powers”
should be based on the provisions of the Western legal tradition, according to which it is as much a system of rights and obligations of the subject of authority as a requirement for a public authority to act accordingly in order to perform the tasks assigned to this authority), and not an independent legal phenomenon, and is always limited by the norms of law, which prevents its arbitrary application.
The author’s definition of the concept of discretion in the National Police activities is proposed. Discretion in the National Police activities is a way of exercising the powers of the National Police as a state authority consisting in the
possibility of choosing (which is based on legal and factual grounds and which corresponds to the principle of the rule of law, does not contradict the essence of the legal relations in which discretion is applied) an option of action/decision within the limits defined by law, without expanding or changing these powers.
It is emphasized that when the choice of a decision is limited to only one option, which is directly provided for by law then it is about an imperative prescription, not discretion.
Two complementary classifications of discretion are proposed: by levels of choice (regarding the decision/action, regarding the options for the decision/action, regarding the method of action) and by controllability (regulated, limited, and relatively free). These classifications allow us to distinguish between the spheres of judicial control and administrative discretion. The above provisions contribute to the improvement of the mechanisms of normative regulation of the discretionary powers of the police and to increasing the effectiveness of control in accordance with the principles of good governance.
A five-element model of the limits of administrative discretion of the National Police of Ukraine, which includes regulatory (determine the legal framework of discretionary powers based on the Constitution, laws,
