Judical review of discretionary powers in the activity of historical monuments protection bodies. The experience under the case law of Polish administrative courts

• Author: Jerzy Parchomiuk
• Position: John Paul II Catholic University of Lublin
• Pages: 6-29

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JUDICIAL REVIEW OF DISCRETIONARY POWERS

IN THE ACTIVITY OF HISTORICAL MONUMENTS

PROTECTION BODIES. THE EXPERIENCE UNDER

THE CASE LAW OF POLISH ADMINISTRATIVE COURTS

Jerzy Parchomiuk

John Paul II Catholic University of Lublin

Abstract: e sovereign nature of the forms of operation of cultural heritage protection authori-

ties, the polarization between the individual interest and the public interest, discretion margin in

the activities of the authorities, all these elements create akind of “explosive mixture”, which is the

source of the legal disputes between the owners of historical monuments and historical monu-

ments protection bodies. e key element of the guarantee of individual freedom is judicial review

of public administration. erefore, it is amatter of dispute to which extent the public administra-

tion is subject to judicial review when performing the tasks entrusted. e aim of this article is to

analyze how Polish administrative courts approach the problem. What methodology of the review

of discretion margin they use? How they solve the dilemma: who makes the nal decision– the

body or the court? Do they retain the judicial self-restraint or rather they are willing to interfere in

the merits of the decision?

Keywords: protection of monuments, judicial review, discretionary powers, decision-making free-

dom, public and individual interest, property right

1 INTRODUCTION

Protection of historical monuments is an area of particular polarization of the public and individual

interests. Inevitably, there is astate of tension between the freedom to use the subject of property

rights and the public interest expressed in the need to protect one of the key elements of the cultural

heritage of the state. Almost every form of monument protection is alimitation of the property

right. Protection of historical monuments is an expression of the care for the memory and cultural

identity of the nation, and this is an element of the raison d’être. e State cannot survive without

the foundation of history and culture.

e legal forms of the implementation of tasks by the historical monument protection authori-

ties must be suciently exible. e object of protection is of aspecic character. To determine

what is amonument and, consequently, what is the subject of protection, requires an assessment

based on expertise in the eld of art, history and science. It is dicult to describe the subject of the

protection in an abstract way, using the rigid language of legal norms. is creates the rst sphere

of discretion margin.

 e paper was prepared as part of the research project “Legal acts of the provincial monument conservator”, nanced

from funds of the National Science Centre, Poland (Ref. UMO-2015/19/B/HS5/02525).

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JUDICIAL REVIEW OF DISCRETIONARY POWERS IN THE ACTIVITY OF HISTORICAL MONUMENTS PROTECTION BODIES…

In addition, the administrative body’sactivities must be adequate to the needs of aparticular

object of protection, so the body must creatively and dynamically adjust the activities to the needs.

is creates the second sphere of discretion margin. e legislature is not able to describe in arigid

way the determinants for taking appropriate protective measures by the authorities.

e sovereign nature of asignicant part of the forms of operation of cultural heritage protection

authorities, the polarization between the individual interest and the public interest, the necessary

discretion margin in the activities of the authorities, all these elements create akind of “explosive

mixture” that creates legal disputes between the owners of historical monuments and historical

monuments protection bodies.

In ademocratic state governed by the rule of law, an individual must be guaranteed real legal

protection against acts of public administration. e key element of the guarantee of individual free-

dom is judicial review of public administration. erefore, it is amatter of dispute to which extent

the public administration is subject to judicial review. It is about appropriate separation of functions:

the public administration is to implement the administrative policy, while the role of administrative

courts is to review whether this function is correctly exercised under the legal provisions governing

the activity of the administration. Due to the separation of functions, the court cannot substitute

the administrative body, and it cannot take adiscretionary ruling instead of the ruling the body has

issued under its discretionary power. e key question is who has the decisive voice, and who makes

the nal decision (Letztentscheidung)?

e purpose of my article is to analyze how Polish administrative courts approach the problem

so dened– what methodology of review of the discretion margin of administration they use as

they try to solve the dilemma: who makes the nal decision. Whether they retain the judicial self-

restraint or rather in the name of protecting the rights of the owner of the monument, they are will-

ing to interfere in the merits of the decision.

2 DISCRETION MARGIN IN THE ACTIVITIES OF HISTORICAL MONUMENTS

PROTECTION BODIES

2.1 Discretion margin in the activities of public administration

e approach to classifying the types of discretion margin in the activities of public administration

bodies diers in dierent legal systems.

Without going too far into awider reection on this subject, it should be remembered that for

French administrative law abroad notion of discretionary powers of the administration is charac-

teristic, without strictly distinguishing between its various categories. e discretionary powers

(pouvoir discrétionnaire) are generally described as asituation in which legal rules leave the admin-

istration awide margin of assessment (large marge/pouvoir d’appréciation). In other words: when

making adecision, the body has the power to assess the facts as aresult of which it can choose

 MAURER, H.: Allgemeines Verwaltungsrecht. München: C. H. Beck 2011, p.142.

 Similarly: SCHWARZE, J.: Grundlinien und neure Entwicklungen des Verwaltungsrechtschutzes in Frankreich und

Deutschland. In: Neue Zeitschri für Verwaltungsrecht, 1996, no.1, p.25.