TRANSFORMATION OF ADMINISTRATIVE DISCRETION UNDER ALGORITHMIC GOVERNANCE: THE EVIDENTIARY SUBSTRATE AND LEGAL SAFEGUARDS IN DE-OCCUPIED TERRITORIES

Abstract

The purpose of the article is a doctrinal reconceptualisation of the transformation of administrative discretion under the transition to algorithmic public administration in the de-occupied territories of Ukraine, together with the substantiation of legal safeguards capable of reconciling the efficiency of automated administrative acts with the procedural guarantees of the private person enshrined in the Law of Ukraine «On Administrative Procedure». The study proceeds from the premise that the large-scale restoration of public services in liberated territories takes place amid a personnel vacuum and heightened corruption risks in the allocation of reconstruction resources, as exemplified by the «eVidnovlennia» (eRecovery) programme. Methods. The methodological foundation combines the formal-dogmatic and systemic-structural methods, employed to analyse the construction of the administrative act and the limits of administrative discretion. The comparative legal method made it possible to relate the contemporary Ukrainian problem to the conclusions of foreign scholarship on algorithmic governance. The method of legal modelling was used to construct an asymmetric regime of automated administration. A critical approach characteristic of critical algorithm studies was applied to refute the assumption that discretion is eliminated in full. Results. The widespread thesis that algorithmisation eliminates administrative discretion is refuted. It is substantiated that discretion does not disappear but shifts from the stage of executing a decision by a frontline official to the stage of designing the algorithm and determining the sources of input data. To denote this phenomenon, the category of «meta-discretion» is proposed and demarcated from the adjacent concepts of system-level bureaucracy, artificial discretion, and design discretion; the system architect is identified as its de facto bearer, while its legal bearer is the subject of public authority that deploys the system, the software developer bearing derivative public-law duties. The need to relocate administrative-legal control to the stage of formalising the norm as Rules as Code is demonstrated. A conceptual distinction is drawn between algorithmisation, automated decision-making, and artificial-intelligence systems, showing that deterministic Rules-as-Code systems fall outside the definition of an AI system in Regulation (EU) 2024/1689 and in Council of Europe Framework Convention CETS No. 225, so that guarantees for the individual must be supplied by national administrative-procedure law. The problem of the evidentiary substrate is examined separately: the registry data of de-occupied territories are frequently destroyed or falsified under the competing legal order of the occupation, so that the mechanical application of an algorithm threatens mass violations of rights. In response, the doctrine of the «presumption of the digital trace» is formulated, together with procedures for the verification-based acceptance, with limited evidentiary weight, and rebuttal of data of occupational origin, which is directly connected with the objectives of transitional justice. The collision between the automated act and the guarantees of the right to be heard and the duty of individualised reasoning is analysed; an asymmetric model is proposed, whereby the algorithm independently issues only favourable administrative acts, while an unfavourable decision is referred to an official through a human-in-the-loop mechanism, with an accessible non-electronic channel of recourse guarding against digital exclusion. Conclusions. The algorithmisation of public administration constitutes not the abolition of administrative law but its transition to a meta-level of regulation. The effectiveness of this transition in de-occupied territories depends decisively on mechanisms for verifying the evidentiary substrate and on preserving the procedural guarantees of the protection of individual rights, which calls for the anticipatory reform of administrativeprocedure legislation, aligned with the European benchmarks of Article 22 GDPR and Council of Europe Framework Convention CETS No. 225.